Exhibit 10.11
FIFTH AMENDMENT TO OFFICE LEASE
THIS FIFTH AMENDMENT TO OFFICE LEASE (this "FIFTH AMENDMENT") is made
and entered into as of March 31, 2003, by and between 000 XXXX XXXXXX, L.P., a
Delaware limited partnership ("LANDLORD"), and ART TECHNOLOGY GROUP, INC., a
Delaware corporation ("TENANT").
RECITALS
A. Landlord, as successor-in-interest to Pine Street Investors I,
L.L.C., a Delaware limited liability company, and Tenant have entered into that
certain Office Lease dated as of October 6, 1999 (the "ORIGINAL LEASE"), as
amended by that certain First Amendment to Lease (the "FIRST AMENDMENT") dated
as of December 30, 1999, that certain Second Amendment to Office Lease (the
"SECOND AMENDMENT") dated as of August 28, 2000, that certain Third Amendment to
Office Lease (the "THIRD AMENDMENT") dated as of December 22, 2000, and that
certain Fourth Amendment to Office Lease (the "FOURTH AMENDMENT") dated as of
July 15, 2001 (as so amended, the "LEASE"). Unless otherwise defined herein,
capitalized terms used in this Fifth Amendment shall have the meanings given to
such terms in the Lease.
B. Pursuant to the Original Lease, Landlord leased to Tenant the
entire 21st floor of that certain office building located at 000 Xxxx Xxxxxx,
Xxx Xxxxxxxxx, Xxxxxxxxxx (the "BUILDING").
C. Pursuant to the Second Amendment, Landlord agreed to lease
Tenant approximately 9,947 rentable square feet on the 20th floor of the
Building and the entire 25th floor of the Building (as more particularly
described in the Second Amendment, the "25TH FLOOR SPACE").
D. Pursuant to the Third Amendment, Landlord agreed to lease
Tenant an additional approximately 3,263 rentable square feet on the 20th floor
of the Building (all of Tenant's leased space on the 20th Floor, collectively,
the "20TH FLOOR SPACE"; the 25th Floor Space and the 20th Floor Space,
collectively, the "EXPANSION SPACE").
E. Pursuant to the Fourth Amendment, provision was made, in
addition to certain other modifications, for a conditional termination of the
25th Floor Space, however, the pre-conditions to such termination were never
satisfied.
F. Tenant now desires to terminate its rights and obligations
under the Lease with respect to the Expansion Space. Landlord has agreed to such
termination upon the satisfaction of the terms and conditions set forth herein.
NOW, THEREFORE, the parties hereto agree as follows:
1. EFFECTIVENESS; CONDITIONS PRECEDENT. Upon execution by each of
Landlord and Tenant the agreement to amend contained in this Fifth Amendment
shall be fully binding on Landlord and Tenant as of the date hereof.
Notwithstanding the foregoing, the specific amendments contained in Section 2
though Section 7 and the mutual releases set forth in Section 11 shall not take
effect until the first day of the first calendar month immediately
following satisfaction, to Landlord's reasonable satisfaction, of each of the
conditions listed below (the "EFFECTIVE DATE"):
(a) Tenant shall have paid to Landlord as compensation
for the Landlord's agreement to accept and early termination of the Lease with
respect to the Expansion Space and to consent to the lease modifications
contained herein, immediately available funds in an amount equal to $6,750,000;
(b) Tenant shall have paid to Landlord as reimbursement
to Landlord of its costs, expenses and legal fees incurred in negotiating and
documenting this Fifth Amendment, immediately available funds in an amount not
to exceed $15,000;
(c) Tenant shall have surrendered possession of the
Expansion Space in broom clean condition; and
(d) Not later than April 15, 2003, Tenant and Landlord
shall have executed, and Landlord's lender shall have consented to, this Fifth
Amendment.
Landlord and Tenant acknowledge and agree that in the event all of the
conditions set forth above have not been satisfied on or before April 15, 2003,
this Fifth Amendment shall automatically be deemed terminated and shall be null
and void and of no further force or effect, whereupon the parties shall be
released from all obligations hereunder, except for the brokerage indemnity set
forth in Section 8 below which shall expressly survive such termination.
2. TERMINATION OF EXPANSION SPACE. Upon the satisfaction of the
conditions set forth in Section 1 above, Tenant shall have no further rights,
including without limitation, the right to use and occupancy, or obligations,
including without limitation, the obligation to pay Rent under the Lease with
respect to the Expansion Space, except (a) pursuant to any provisions of the
Lease which expressly survive the expiration or termination of the Lease or (b)
with respect to additional Rent (as set out in Section 4 of the Lease) with
respect to the Expansion Space which accrues prior to the Effective Date, but
which is, in the ordinary course, to be billed to Tenant after the Effective
Date (which additional Rent Tenant shall pay to Landlord when due in accordance
with the Lease).
3. REDUCTION OF BASE RENT. Commencing on the Effective Date but
retroactive to the date this Fifth Amendment was last signed (as reflected by
the dates on the signature page hereto), and for the remainder of the Lease term
thereafter (as such Lease term has been extended by this Fifth Amendment), the
Base Rent for the Premises remaining encumbered by the Lease (i.e. the 21st
Floor) shall be reduced to $35 per rentable square foot per year. The Premises,
following the Effective Date, shall consist of 12,931 rentable square feet with
an annual Base Rent of $452,585 and a monthly Base Rent of $37,715.42, all due
in accordance with the provisions of the Lease.
4. TENANT'S PRORATA SHARE. As of the Effective Date and
termination of the Lease with respect to the Expansion Space, Tenant's Prorata
Share shall be 3.212 %, and Tenant's Prorata Share of Operating Expenses and
Taxes shall continue to be paid pursuant to the terms of the Lease.
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5. FORFEITURE OF TI ALLOWANCE. Tenant acknowledges agrees that
(a) any and all rights Tenant has under the lease to receive a tenant
improvement allowance from Landlord are hereby forfeited, cancelled and
terminated, whether or not such rights may have accrued prior to the Effective
Date and (b) as a result of such forfeiture, termination and cancellation,
Landlord has no further obligation under the Lease to provide any tenant
improvement allowance to Tenant at any time.
6. LETTERS OF CREDIT AND SECURITY DEPOSIT.
(a) Tenant acknowledges that Landlord is currently
holding a security deposit (the "SECURITY DEPOSIT") in the amount of
$158,404.75. The parties hereby agree that Landlord shall continue to hold the
Security Deposit until the expiration of the Lease Term, and in no event shall
the amount of the Security Deposit be reduced except in accordance with the
provisions of the Lease.
(b) Tenant further acknowledges that Landlord is
currently holding three (3) letters of credit (the "LETTERS OF CREDIT") to
guaranty Tenant's obligations under the Lease, in an aggregate amount of
$2,285,098. Notwithstanding any Lease provisions to the contrary, the parties
hereby agree that Tenant shall have the right to reduce the amount of the
Letters of Credit held by Landlord on the following schedule, provided that
there has not occurred any Default under the Lease at any time following the
Effective Date and that all costs and expenses associated with any such
reduction shall be entirely borne by Tenant:
DATE OF ALLOWED REDUCTION REQUIRED LETTERS OF CREDIT
------------------------- --------------------------
November 30, 2004 $1,832,513
November 30, 2005 $1,379,928
November 30, 2006 $ 927,343
November 30, 2007 $ 474,758
If Tenant, pursuant to this Section 6, at any time desires to reduce
the aggregate amount of the Letters of Credit held by Landlord, Tenant shall
provide Landlord with written notice thereof and Landlord shall then cooperate
with Tenant in a timely manner to effectuate such reduction (which Tenant
acknowledges will take some coordination with Landlord's lender and the issuing
bank(s) of the Letters of Credit). Any reduction in the Letters of Credit shall
be achieved by a cancellation and/or partial reduction in the amount of one or
more Letters of Credit (with the order of cancellation or reduction of the three
existing Letters of Credit to be determined by Landlord in its sole discretion).
7. EXTENSION OF EXPIRATION DATE; EXTENSION OPTION. The Expiration
Date under the Lease is hereby amended to be December 31, 2007. Due to the
cancellation of the Expansion Space, the Tenant acknowledges that the Option to
Extend the Term of the Lease set forth in Rider 2 to the Lease shall only apply
with respect to the Premises which remain encumbered by the Lease after the
Effective Date.
8. BROKERS. Landlord and Tenant hereby warrant to each other that
they have had no dealings with any real estate broker or agent in connection
with the negotiation of this Fifth Amendment, and that they know of no real
estate broker or agent who is entitled to a commission
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in connection with this Fifth Amendment. Each party agrees to indemnify and
defend the other party against and hold the other party harmless from any and
all claims, demands, losses, liabilities, lawsuits, judgments, and costs and
expenses (including, without limitation, reasonable attorneys' fees) with
respect to any leasing commission or equivalent compensation alleged to be owing
on account of the indemnifying party's dealings with any real estate broker or
agent. The terms of this Section 8 shall survive the expiration or earlier
termination of this Fifth Amendment.
9. INCORPORATION; NO FURTHER MODIFICATION. From and after the
effective date hereof, the term "Lease" as used in the Lease shall mean the
Lease, as amended by the First, Second, Third, Fourth and Fifth Amendments.
Except as set forth in this Fifth Amendment, all of the terms and provisions of
the Lease shall apply with respect to the Premises and shall remain unmodified
and in full force and effect and are hereby ratified and confirmed.
10. COUNTERPARTS. This Fifth Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. The parties agree that
the signature page to this Fifth Agreement may be executed and delivered by
facsimile transmission and that such execution and delivery shall be deemed
effective for all purposes hereunder.
11. MUTUAL RELEASE.
(a) Except as noted in Section 2 hereof, Landlord hereby (i) fully
and irrevocably releases and forever discharges Tenant and Tenant's employees,
successors and assigns, from any and all claims, counterclaims, causes of
action, suits, debts, controversies, damages, judgments, executions, claims,
demands and liabilities, of whatever kind and nature, fixed or contingent, known
or unknown, arising at law or in equity, which they ever had, now have or
hereafter can, shall or may have for, upon or by reason of any matters, cause or
thing whatsoever from the beginning of time to and including the date hereof
relating to or in any way arising from or in connection with the Expansion
Space; and (ii) covenants and agrees not to xxx, prosecute or cause to be
commenced or prosecuted any suit, activity, claim or other procedure based on
the foregoing. For purposes of clarification, the parties agree that Landlord
does not and has not released Tenant from those indemnity obligations under the
Lease which expressly survive Lease termination or from Tenant's obligations to
pay additional Rent which accrue prior to the Effective Date with respect to the
Expansion Space.
(b) Tenant hereby (i) fully and irrevocably releases and forever
discharges Landlord and Landlord's employees, successors and assigns, from any
and all claims, counterclaims, causes of action, suits, debts, controversies,
damages, judgments, executions, claims, demands and liabilities, of whatever
kind and nature, fixed or contingent, known or unknown, arising at law or in
equity, which they ever had, now have or hereafter can, shall or may have for,
upon or by reason of any matters, cause or thing whatsoever from the beginning
of time to and including the date hereof relating to or in any way arising from
or in connection with the Expansion Space; and (ii) covenants and agrees not to
xxx, prosecute or cause to be commenced or prosecuted any suit, activity, claim
or other procedure based on the foregoing.
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
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IN WITNESS WHEREOF, the parties hereto have executed this Fifth
Amendment as of the day and year first above written.
[PROVIDE A DATE OF EXECUTION NEXT TO EACH SIGNATURE]
LANDLORD: 000 XXXX XXXXXX, L.P., a Delaware limited partnership
By: UNICO Properties, Inc., a Delaware corporation,
its Managing Agent
By: /s/ Xxxx X. Xxxx 5/7/2003
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Xxxx X. Xxxx, Senior Vice President Date
TENANT: ART TECHNOLOGY GROUP, INC.,
a Delaware corporation
By: /s/ Xxxxxx Xxxxxx 5/7/2003
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Name: Xxxxxx Xxxxxx Date
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Its: Chief Financial Officer
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CONSENTED TO BY:
GERMAN AMERICAN CAPITAL CORPORATION,
a Maryland corporation
By:
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Name: Date
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Title:
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By:
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Name: Date
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Title:
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