LEASE AGREEMENT
Exhibit 10.2
THIS LEASE (this “Lease”) is made as of February 1st, 2011 by and between Genesis
Partners, LLC of Bozeman, Montana, herein referred to as “Landlord”, and Right Now Technologies,
Inc., a Montana corporation, of Bozeman, Montana, hereinafter referred to as “Tenant”.
WITNESSETH:
1. Leased Property. Landlord hereby leases to Tenant the office building located on
the real property in Gallatin County, Montana whose address is 00 Xxxxxxxxx Xxxxx, Xxxxxxx,
Xxxxxxx, consisting of approximately 34,210 square feet as depicted on the attached Exhibit A,
together with (i) the non-exclusive right of ingress and egress for Tenant and its employees,
agents, invitees and contractors between the building and the nearest public streets, and (ii) the
exclusive right to use the parking lot surrounding the building for its employees, agents, invitees
and contractors (the “premises”). Landlord represents and agrees that the parking lot will
provide, at all times during the term of this Lease, a parking ratio of not less than four spaces
per 1000 square feet of rentable square footage in buildings whose tenants are or will be using the
parking lot.
2. Terms of Lease. The primary term of this Lease shall be for one hundred twenty
(120) months commencing when the building is available for occupancy, estimated to be July 1, 2012,
and ending on the 30th day of June, 2022, both dates inclusive, unless sooner terminated as herein
provided. When the building is available for occupancy triggering the start of this Lease, the
parties agree the existing lease for 00 Xxxxxxxxx Xxxxx dated March 28, 2005 shall immediately
cease in its entirety with no further obligations of the parties and be replaced with the terms of
this Lease for the 00 Xxxxxxxxx Xxxxx property.
3. Option to Extend. Upon expiration of the primary term of this Lease, Tenant is
granted an option to extend the term of this Lease for one (1) additional sixty (60) month period,
with the same terms and conditions as are included in this Lease, subject, however, to
renegotiation of the rent provided in paragraph 4 of this Lease. The primary term and the
extension terms will be collectively referred to in this Lease as the “term.” Tenant shall notify
Landlord within not less than one hundred twenty (120) days prior to the expiration of the primary
term of this Lease or prior to the expiration of each extension term of Tenant’s exercise of its
option to extend this Lease,
provided that in the circumstances described in paragraph 13, the options to extend the term may be
exercised earlier as provided in paragraph 13, and if the option to extend is exercised earlier as
provided in paragraph 13, nevertheless, the rental payable as provided in paragraph 4 shall be
determined at the time and in the manner provided in paragraph 4 and this paragraph 3. During the
following sixty (60) day period, Tenant and Landlord shall negotiate and arrive at an agreement or
disagreement of the amount of rent to be paid during the applicable extension term. If Landlord and
Tenant agree upon the rent to be paid during the applicable extension term, Landlord and Tenant
shall at the end of the sixty (60) day period enter into a new written lease or an amendment
agreement setting forth the amount of rental Tenant shall be required to pay pursuant paragraph 4
for the applicable extension term and any other additional terms to which Landlord and Tenant have
agreed. If Tenant and Landlord fail to agree upon the rent to be paid during the applicable
extension term during the sixty (60) day period of negotiations, a fair market appraisal comparison
of comparable properties will be completed by an independent party upon which the Landlord and
Tenant may use to negotiate the amount of rent to be paid during the applicable extension term. If
Tenant and Landlord fail to agree upon the rent to be paid during the applicable extension term
during the sixty (60) day period of negotiations, either Landlord or Tenant may, by written notice
to the other party given within the ensuing thirty (30) day period, elect to invoke the arbitration
provisions of this Lease to determine the rent Tenant shall be required to pay pursuant to
paragraph 4 for the applicable extension term.
4. Rent. Tenant shall pay as rental for the premises for the first year of the primary
term of the Lease the sum of $482,019; computed at the
rate of $14.09 NNN per
square foot on 34,210 square feet of office space, payable monthly, in advance on the first
day of each month, in installments of $40,168 per month. The rent rate shall increase each
year on the anniversary date of the Lease, using Consumer Price Index annual escalators. The Base
Index shall be the Consumer Price Index for January 2011 and the Comparison Index shall be
the Consumer Price Index for each succeeding January during the primary term of this Lease.
For purposes of this paragraph 3, “Consumer Price Index means United States Department of Labor,
Bureau of Labor Statistics Consumer Price Index, All Urban Consumers, All Items, 1982-1984=100, or
if discontinued, any successor index which, in Landlord’s reasonable opinion, is most nearly
equivalent to the Consumer Price Index. Rent shall be paid without notice or demand by Landlord to
Landlord at 000
Xxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 or at such other place as Landlord may direct in
writing.
5. Covenants. Tenant hereby acknowledges and agrees:
A. Tenant is familiar with the premises. Tenant’s taking of possession of the premises shall
be conclusive evidence that the premises were in good, clean and sanitary condition, are in all
respects satisfactory and acceptable to Tenant, and are in the condition in which Landlord
represented the premises to be.
B. Tenant will keep the premises in a clean and sanitary condition during the term of this
Lease. Landlord shall have no obligation to make any alterations or improvements of any kind in or
about the premises other than as set forth in this Lease. Tenant shall repair or replace promptly
all damages to the premises due to acts of Tenant, its agents, employees, invitees, or subtenants,
reasonable wear and tear excepted. Tenant also shall not cause any waste to be committed in or
about the premises; Tenant will keep the premises free and clear of any and all refuse and debris;
and Tenant agrees to observe all rules and regulations of the County of Gallatin and State of
Montana in any way relating to maintenance, use and occupancy of the premises.
C. Tenant will not use or permit anything to be used upon the premises which is likely to
deface or damage the premises, or do anything that will increase the rate of insurance thereof
(unless Tenant first agrees to pay any increased premiums), or permit anything to be done upon the
premises or in the areas, sidewalk or streets adjacent to the premises, which will amount to or
create a nuisance.
D. Tenant shall make no alterations in or additions to the premises without first obtaining
Landlord’s written consent, which consent will not be unreasonably withheld, delayed or
conditioned. Tenant shall not erect or permit to be erected upon the premises any signs without
written consent of Landlord, which consent will not be unreasonable withheld, delayed or
conditioned.
E. Tenant agrees, with respect to all alterations or improvements to the premises or any part
thereof, which Tenant undertakes with written consent of Landlord, that Tenant shall in all
instances save Landlord and the premises forever harmless and free from all damages, loss and
liability of every kind and character which may be claimed, asserted or charged, including
liability to adjacent owners or tenants, based upon the acts or negligence of Tenant or its agents,
contractors or
employees, for any negligence, or for the failure of any of them to observe and comply with the
requirements of the law, including the regulations and the authorities in the City of Bozeman, and
Tenant will preserve and hold Landlord and the premises free and clear from all liens or
encumbrances for labor and materials furnished. Any and all alterations, additions, and
improvements made by Tenant to or upon the premises (with the exception of furnishings, equipment,
and removable trade fixtures installed by Tenant) shall, upon installation, be deemed attached and
part of the premises, provided however, that if prior to termination of this Lease, or within
fifteen (15) days thereafter, Landlord so directs by written notice to Tenant, promptly following
said termination of this Lease, Tenant shall remove such of the said additions, improvements,
fixtures, and installations placed upon the demised premises by Tenant as shall by designated in
said notice from Landlord, and Tenant shall repair any damages occasioned by such removal.
Further, in this regard, Tenant hereby agrees that it will, during the continuance of this Lease,
keep the premises and interior of the premises in good condition and repair, reasonable wear and
tear excepted.
F. Tenant may use and occupy the premises for the purpose of a business office and all
activities incidental thereto, including the manufacture of software, and not otherwise. Tenant
shall not use or knowingly permit any part of the premises to by used for any unlawful purposes and
shall comply with all applicable laws and regulations of the County of Gallatin, State of Montana,
and the United States of America.
G. Tenant agrees that Landlord shall not be liable for any damage or injury to persons or
property or for the loss of property sustained by Tenant or by any other person or persons on the
premises due to any act of negligence of Tenant.
H. Tenant agrees that it will not assign this Lease or sublease any portion of the premises or
permit this Lease to transferred by operation of law or otherwise without the written consent of
Landlord, which consent shall not be unreasonably withheld, delayed or conditioned; provided,
however, that any merger and reorganization of Tenant for the purpose of incorporating under
another state law shall not be deemed to be an assignment for purposes of this paragraph and shall
not require Landlord’s consent, or that any merger or change in control of the Tenant shall not be
deemed to be an assignment for the purposes of this paragraph and shall not require Landlord’s
consent. Tenant shall remain responsible under this Lease for any portion of the premises sublet by
Tenant (even if Landlord approved the subletting), unless Landlord shall agree otherwise. Any
subtenant to whom any portion of the property is sublet shall agree to abide by the provisions of
this Lease which are applicable to the sublet portion of the premises, before Landlord will be
required to consent to the proposed subleasing of any portion of the premises.
I. Tenant will permit Landlord, at all reasonable times and after reasonable notice to Tenant
at Landlord’s sole risk and expense and in a manner that causes the least practical disruption to
Tenant, to enter upon the premises (i) to inspect their condition and to make reasonable and
necessary repairs for the protection and preservation of the premises, (ii) to ascertain whether
Tenant has performed its covenants under this Lease, and (iii) to show the premises to persons who
may wish to rent the premises after the expiration of the term of this Lease or to purchase the
premises, provided that any showing of the premises to persons who may wish to rent the premises
shall be only during the last year of the term of the Lease.
J. Tenant, upon leaving the premises, shall at its own expense, remove all dirt, rubbish, and
refuse and upon failure to do so, Landlord may immediately, without further notice, do so at
Tenant’s expense. Tenant shall immediately pay Landlord’s expenses upon receipt of a xxxx for the
same from Landlord.
6. Default and Landlord’s Rights. If the premises shall be deserted or vacated, or if
a trustee or receiver of a substantial portion of Tenant’s property is appointed, or if an order is
entered against Tenant for relief under Title II of the United States Code, or there shall be a
default in payment of any rent for more than five (5) days after written notice of such default
from Landlord, or there shall be a default in the performance or any other covenant, agreement,
condition, rule or regulation herein contained, or hereafter established with Tenant’s consent,
which shall continue for more than thirty (30) days (or, if the default is not curable within
thirty (30) days and if Tenant begins to cure the default within such thirty (30) day period and
diligently pursues curing the same, then for such for additional period as shall be reasonably
necessary to cure the default) after Tenant’s receipt of written notice of such default from
Landlord, Tenant’s rights in this Lease (if Landlord so elects, and such election is reserved)
shall thereupon terminate and end without the necessity for any further notice, and Landlord shall
have the right to re-enter and repossess the premises in the manner permitted by law and dispossess
or remove there from Tenant or other occupants thereof and their effects without being liable to
any prosecution or action therefore.
Landlord may likewise, at Landlord’s option, and in addition to any other remedies which Landlord
may have upon default, let and relet the premises in whole or in part, altering, changing or
subdividing the same as in its reasonable judgment may accomplish the best rental results, and upon
such terms and for such length of time, whether lesser or greater than the unexpired portion of the
term of this Lease, as Landlord may reasonably see fit, and Tenant shall be liable to Landlord for
any deficiency between the remaining unpaid rental and the rental so procured by Landlord for the
period of said letting or reletting which is during the remaining term of this Lease and shall
further be liable for the reasonable costs of reletting and alterations or changes required to
enable Landlord to let and relet the premises, the deficiency and costs not to exceed, however, the
balance of the unpaid rental due from tenant for the remaining term of the Lease. Landlord any
institute action for the whole of any such deficiency immediately upon effecting a letting or
reletting and shall not thereafter be precluded from further like action in the event such letting
or relettng shall not cover the entire unexpired portion of the term hereof, or Landlord may
monthly, or at such greater intervals as it may see fit, require Tenant to pay said deficiency then
existing, and Tenant agrees to pay said deficiency to Landlord from time to time when called upon
by Landlord to do so. Should this Lease not be terminated, Landlord may, notwithstanding such
letting or reletting, at any time thereafter elect to terminate it. Tenant, upon termination as
herein provided, will yield quiet and peaceful possession to Landlord, subject to any letting or
reletting Landlord has effected of the premises. If Landlord shall give the notice of termination
as herein provided, then, at the expiration of such period, this Lease shall terminate as
completely as if that were the date herein fixed for the expiration of the term of this Lease, and
Tenant shall then surrender the premises to Landlord.
7. No Waiver of Breach. Tenant agrees that no consent, expressed or implied, by
Landlord to any breach of Tenant’s covenants or agreements shall be deemed a waiver of any
succeeding breach.
8. Notice. It is agreed that all notices herein required to be given shall be
effective upon mailing, postage prepaid, addressed to Landlord at 000 Xxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000 or addressed to Tenant at 000 Xxxxxxxxxx Xxxx., Xxxxxxx, Xxxxxxx or such
other place as either may designate in writing to the other. In addition, any notice from Landlord
to Tenant relating to this Lease or the premises shall be deemed duly served if personally
delivered to an officer of Tenant at the premises.
9. Surrender Upon Termination. Tenant shall, upon termination of the term, peacefully
and quietly surrender the premises to Landlord in as good condition as it was at the beginning,
reasonable use and wear and damage by the elements excepted. Tenant shall remove all of its
personal property and trade fixtures (repairing any damage to the premises such removal causes) so
that Landlord can repossess and enjoy the premises not later than noon on the day upon which the
term ends, whether upon notice or by holdover or otherwise. Landlord shall have the right to
enforce this covenant by ejectment, for damages, or for breach of any other condition or covenant
of this Lease.
10. Peaceful Possession. Landlord covenants and agrees, at its sole expense, that the
exterior, structure, the roof and the heating, ventilating, air conditioning, electrical, plumbing
and all utility systems on or in the premises shall be maintained in good repair and tenantable
condition, excepting damage resulting from neglect or intentional acts of Tenant, its agents,
employees, contractors and invitees. So long as Tenant pays the rent and performs the covenants and
agreements herein contained, Tenant shall peacefully and quietly hold the premises for the primary
term and any extensions thereof.
11. Time of Essence. Time is of the essence of this Lease with respect to the
performance by Tenant and Landlord of their obligations hereunder.
12. Attorney’s Fees. In the event any action to enforce any of the terms of this Lease
is brought, the prevailing party shall be entitled to its reasonable attorney’s fees as provided in
paragraph 25.
13. Liability — Premises. Landlord shall not be responsible or liable (i) for any
personal injury to Tenant or any other person on the premises, or for injury or damage to personal
property or improvements of Tenant or of any third party on the premises unless such injury or
damage is caused by the neglect or omissions of Landlord, its agents or employees; (ii) for injury
or damage caused by the neglect or omissions of Tenant or its agents, contractors, invitees or
employees; or (ii) on account of any inconvenience or annoyance or damage caused by fire,
explosion, earthquake, flood or other causes beyond the control of Landlord. Tenant will obtain
general liability insurance in an amount of not less than $1,000,000 on which Landlord shall be
named as an additional insured. If Tenant shall sublet any portion of the premises, the subtenant
shall also furnish the general liability insurance required of Tenant or be covered under Tenant’s
policy.
In addition, Tenant will at all times hold Landlord harmless from any claim or damages by
reason of any personal injury, property damage, or otherwise, arising from its operation or use of
the premises or any of Tenant’s equipment used in connection therewith, provided the claim or
damage is not caused by negligence or omission of Landlord, its agents, contractors or employees.
Tenant shall carry, at its sole expense, all risk casualty insurance, covering the premises,
in the amount equal to the full replacement cost of the premises. The policy shall be endorsed so
that it may be terminated or amended only upon not less than thirty (30) days prior written notice
to Landlord. The policy shall contain no co-insurance clause, a deductible amount not exceeding
$5,000, and the insurance company’s consent to the waivers of subrogation set forth in the next
sentence. Tenant waives any claims it may have against Landlord and any rights to grant subrogation
rights to others for any loss, damage or claim which is covered by Tenant’s insurance. In the event
that the premises shall be rendered wholly or partially untenantable by fire, explosion,
earthquake, Act of God, or any other cause beyond the control of Tenant (collectively, the
“casualties”), Tenant in cooperation with Landlord (i) shall rebuild and restore the premises as
soon as reasonably practicable to the premises’ former condition and use but only (A) to the extent
of the insurance proceeds Tenant receives, and (B) if the casualties do not occur during the last
two (2) years of the term (and for this purpose the term shall include all extension terms Tenant
notifies Landlord it will exercise on or before thirty (30) days after the occurrence of any of the
casualties), or (ii) in circumstances not described in clause (ii) may, at its option, either
terminate this Lease by written notice given to Landlord within sixty (60) days after the casualty
or commence to repair the premises within sixty (60) days after the casualty. If Tenant shall elect
or be required to repair the premises, the rental hereunder shall be abated in proportion to the
part of the premises that are untenantable, and no rental shall be payable hereunder for the period
that said premises shall be wholly untenantable, provided that in the event any of the casualties
is caused by carelessness, negligence or improper conduct of Tenant, or of Tenant’s agents,
employees, contractors or invitees, the rental shall not be so abated.
All fixtures or improvements placed on the premises by Tenant, which shall be damaged or
destroyed, shall be repaired and replaced by Tenant at its own expense and not at the expense of
Landlord.
If any of the glass or plate glass in the premised shall be damaged or become broken from the
inside, Tenant shall replace, at Tenant’s own cost and expense, all such glass or plate glass
broken. If the glass is damaged or broken from the outside, Landlord shall replace the same at its
own cost and expense.
14. Repairs and Maintenance. Landlord shall bear the entire expense of all repairs,
maintenance, alterations, or improvements to the basic structure, exterior walls and roof. Tenant
shall bear the entire expense of all repairs, maintenance, alterations, or improvements to the
heating, ventilating, air conditioning, electrical, plumbing, elevator maintenance/inspections, and
other systems on the premises. Tenant shall, in addition, bear the entire expense for the repair
and maintenance of the parking area, including landscaping and keeping the parking area free of
rubbish, ice and snow. Tenant shall maintain the landscaping and parking area consistent with the
maintenance level of the landscaping and parking area maintained by the landlord in the office
park. Tenant shall pay at its own expense, all repairs, maintenance, and alterations of Tenant
installed fixtures or improvements and utilities.
15. Utilities, Taxes Etc. Tenant shall pay for all telephone, water/sewer,
electricity, natural gas, fire system monitoring, security systems, and janitorial services used in
the operation of the premises. Tenant agrees to pay for replacement of light bulbs. Tenant shall
pay for all real property taxes and assessments levied and assessed against the premises and for
snow removal and lawn maintenance. Tenant shall pay a pro rata share of the maintenance costs of
the common area at the 00 Xxxxxxxxx Xxxxx location. The pro rata share is based on the total
square footage of the 00 Xxxxxxxx Xxxxx building as a percentage of the total square footage of all
the buildings leased by Tenant from Landlord in the same office park location.
16. No Smoking Policy. There will be no smoking allowed anywhere in the premises by
anyone. It will be Tenant’s responsibility to convey to and enforce this policy by its employees,
agents and all other invitees.
17. Paragraph Headings. The paragraph headings in this instrument are for convenience
only and do not limit or construe the contents or any paragraphs.
18. Severability. It is the intent of the parties that if a part of this Lease is
invalid, all valid parts that are severable from the invalid part shall remain in effect. If a part
of this Lease is invalid
in one or more of it applications, that part remains in effect in all valid applications that are
severable from the invalid applications.
19. Landlord’s Liability. The term “Landlord” as used herein shall mean only the owner
or owners at the time in question of the premises. In the event of any transfer of such title or
interest, Landlord herein named (and in case of any subsequent transfers the then grantor) shall be
relieved from and after the date of such transfer of all liabilities as respects Landlord’s
obligations thereafter to be performed, provided that any funds in the hands of Landlord or the
then grantor at time of such transfer in which Tenant has an interest shall be delivered to the
grantee, who shall assume the obligations of Landlord or the then grantor to Tenant with respect to
those funds. The obligations contained in this Lease to be performed by Landlord shall, subject to
the foregoing provisions of this paragraph 19, be binding on Landlord’s successors and assigns.
20. Supersedes. This Lease supersedes all prior agreements between the parties.
21. Exercise of Rights. The omission of Landlord or Tenant to exercise any right
provided for on the default of the other at any time shall not preclude Landlord or Tenant from the
exercise of such right at any subsequent default of the other or be deemed a waiver thereof or the
right to do so.
22. Binding Effect. This Lease shall be binding upon and inure to the benefit of the
heirs, successors, administrators, and permitted assigns of the parties hereto.
23. Security Deposit. The parties acknowledge that at the execution of this Lease,
Landlord holds the sum of $10,000 as a security deposit in connection with a prior lease of the
premises. Landlord shall continue to hold and use the security deposit as security for Tenant’s
performance of its obligations under this Lease. At the termination of this Lease and if at that
time Tenant has fully complied with all of its obligations under this Lease, Landlord shall return
the security deposit, without interest (or the part of the security deposit which Landlord has not
applied to satisfy Tenant’s obligations under this Lease), to Tenant
24. Governing Law. This Agreement and all matters relating thereto shall be governed
by the laws of Montana.
25. Arbitration. Any dispute under this Lease shall be decided by binding arbitration
initiated and conducted in accordance with the commercial arbitration rules of the American
Arbitration Association (“AAA”). The parties shall decide upon the arbitrator. If the parties are
unable to decide upon the arbitrator within ten (10) days after a notice from one party to the
other
that a dispute exists under this Lease, the AAA shall select the arbitrator. The decision of the
arbitrator shall be binding. All costs of arbitration shall be borne by the party the arbitrator
determines to be the non-prevailing party. Such costs shall include the costs and reasonable
attorneys’ fees of the prevailing party.
IN WITNESS WHEREOF, the parties have hereunto set their hands as of the date and year first written
above.
GENESIS PARTNERS, LLC — Landlord
By:
| /s/ Xxxxx Xxxxxx | Feb 4, 2011 | |||||
| Xxxxx Xxxxxx, member — Landlord | date | |||||
| /s/ Xxxxx Xxxxxx | Feb 4, 2011 | |||||
| Xxxxx Xxxxxx, member — Landlord | date | |||||
| /s/ Xxxx Xxxxxxxxx | Feb 5, 2011 | |||||
| Xxxx Xxxxxxxxx, member — Landlord | date | |||||
| Right Now Technologies, Inc. — Tenant | ||||||
By |
/s/ Xxxx Xxxxxxx | Feb 7, 2011 | ||||
| Xxxx Xxxxxxx Chief Financial Officer |
date | |||||
