EXHIBIT 10.24
FOURTH AMENDMENT
THIS FOURTH AMENDMENT (the "Amendment") is made and entered into as of the
20th day of December, 2000, by and between EOP-PENINSULA OFFICE PARK, L.L.C., a
Delaware limited liability company ("Landlord"), and BLUE MARTINI SOFTWARE,
INC., a Delaware corporation ("Tenant").
RECITALS
A. Landlord (as successor in interest to Peninsula Office Park Associates,
L.P., a California limited partnership) and Tenant (as successor to Blue
Martini, LLC) are parties to that certain lease dated September 1, 1998,
which lease has been previously amended by First Amendment dated May 12,
1999, Second Amendment dated August 5, 1999 and Third Amendment dated
January 11, 2000 (collectively, the "Lease"). Pursuant to the Lease,
Landlord has leased to Tenant space currently containing approximately
26,353 rentable square feet (the "Original Premises") described as Suite
Nos. 175 containing approximately 6,819 rentable square feet on the first
floor ("Suite 175"), Suite No. 180 containing approximately 5,108 rentable
square feet on the first floor ("Suite 180"), Suite No. 280 containing
approximately 7,370 rentable square feet on the second floor ("Suite 280)"
and Suite No. 285 containing approximately 7,056 rentable square feet on
the second floor ("Suite 285") of the building commonly known as Peninsula
Office Park 6 located at 0000 Xxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx (the
"Building").
B. Tenant has requested that additional space containing approximately 17,436
rentable square feet described as Suite No. 200A consisting of
approximately 12,153 rentable square feet (the "Suite 200A Expansion
Space") and Suite No. 200 consisting of approximately 5,283 rentable square
feet (the "Suite 200 Expansion Space") on the 2nd floor of the Building
shown on Exhibit A and Exhibit B hereto be added to the Premises and that
the Lease be appropriately amended and Landlord is willing to do the same
on the following terms and conditions.
C. The Lease by its terms shall expire on January 31, 2005 ("Termination
Date"), and the parties desire to extend the Term of the Lease as to Xxxxx
000 xxx Xxxxx 000, all 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. Expansion.
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A. Effective 7 days after Landlord delivers written notice to Tenant that
the prior tenant has vacated the Premises (the "Suite 200A Expansion
Effective Date"), the Premises, as defined in the Lease, is increased
from 26,353 rentable square feet on the 1/st/ and 2/nd/ floors of
the Building to 38,506 rentable square feet on the 1/st/ and 2/nd/
floors of the Building by the addition of the Suite 200A Expansion
Space, and from and after the Suite 200A Expansion Effective Date, the
Original Premises and the Suite 200A Expansion Space, collectively,
shall be deemed the Premises, as defined in the Lease. The Term for
the Suite 200A Expansion Space shall commence on the Suite 200A
Expansion Effective Date and end on the Extended
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Termination Date (as hereinafter defined). The Suite 200A 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 200A Expansion Space.
Effective as of May 1, 2001 (the "Suite 200 Expansion Effective
Date"), the Premises, as defined in the Lease, is increased from
38,506 rentable square feet on the 1/st/ and 2/nd/ floors of the
Building to 43,789 rentable square feet on the 1/st/ and 2/nd/ floors
of the Building by the addition of the Suite 200 Expansion Space, and
from and after the Suite 200 Expansion Effective Date, the Original
Premises, the Suite 200A Expansion Space and the Suite 200 Expansion
Space, collectively, shall be deemed the Premises, as defined in the
Lease. The Term for the Suite 200 Expansion Space shall commence on
the Suite 200 Expansion Effective Date and end on the Extended
Termination Date. The Suite 200 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 200 Expansion Space.
B. The Suite 200A Expansion Effective Date and the Suite 200 Expansion
Effective Date shall be delayed to the extent that Landlord fails to
deliver possession of the Suite 200A Expansion Space or the Suite 200
Expansion Space, as the case may be, for any reason, including but not
limited to, holding over by prior occupants. Any such delay in the
Suite 200A Expansion Effective Date or the Suite 200 Expansion
Effective Date shall not subject Landlord to any liability for any
loss or damage resulting therefrom. If the Suite 200A Expansion
Effective Date or Suite 200 Expansion Effective Date are delayed, the
Extended Termination Date shall not be similarly extended.
Notwithstanding any of the foregoing to the contrary, effective as of
the Termination Date, the Term for Xxxxx 000 xxx Xxxxx 000 shall
expire by its terms. For ease of reference, the termination dates
for each of the suites comprising the Premises are as follows:
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Suite Number Termination Date
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175 January 31, 2005
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180 January 31, 2005
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200 April 30, 2006
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200A April 30, 2006
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280 April 30, 2006
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285 April 30, 2006
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II. Extension. The Term for Xxxxx 000 xxx Xxxxx 000 are hereby extended for a
period of 15 months and shall expire on April 30, 2006 (the "Extended
Termination Date"), unless sooner terminated in accordance with the terms
of the Lease. That portion of the Term commencing the day immediately
following the Termination Date ("Suites 280 and 285 Extension Date") and
ending on the Extended Termination Date shall be referred to herein as the
"Extended Term".
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III. Base Rent.
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A. Original Premises Through Prior Termination Date. The Base Rent,
Additional Rent and all other charges under the Lease shall be payable
as provided therein with respect to the Original Premises through and
including the Termination Date.
B. Suite No. 280 and Suite No. 285 From and After the Suites 280 and 285
Extension Date. As of the Suites 280 and 285 Extension Date, the
schedule of Base Rent payable with respect to the Suite Xx. 000 xxx
Xxxxx Xx. 000 during the Suites 280 and 285 Extended Term is the
following:
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Months of Term Annual Rate Annual Monthly
or Period Per Square Foot Base Rent Base Rent
----------------------------------------------------------------------------------------------------------
2/1/05-4/30/05 $113.34 $1,635,042.84 $136,253.57
----------------------------------------------------------------------------------------------------------
5/1/05-4/30/06 $117.92 $1,701,113.88 $141,759.49
----------------------------------------------------------------------------------------------------------
All such Base Rent shall be payable by Tenant in accordance with the
terms of the Lease.
C. Xxxxx 000X Xxxxxxxxx Xxxxx Xxxx Xxxxx 000X Expansion Effective Date
Through The Extended Termination Date. As of the Suite 200A Expansion
Effective Date, the schedule of Base Rent payable with respect to the
Suite 200A Expansion Space for the balance of the original Term and
the Extended Term is the following:
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Months of Term Annual Rate Annual Monthly
or Period Per Square Foot Base Rent Base Rent
---------------------------------------------------------------------------------------------
Xxxxx 000X $100.80 $1,225,022.40 $102,085.20
Expansion
Effective Date-
4/30/02
---------------------------------------------------------------------------------------------
5/1/02-4/30/03 $104.83 $1,273,998.96 $106,166.58
---------------------------------------------------------------------------------------------
5/1/03-4/30/04 $109.02 $1,324,920.12 $110,410.01
---------------------------------------------------------------------------------------------
5/1/04-4/30/05 $113.38 $1,377,907.20 $114,825.60
---------------------------------------------------------------------------------------------
5/1/05-4/30/06 $117.92 $1,433,081.76 $119,423.48
---------------------------------------------------------------------------------------------
All such Base Rent shall be payable by Tenant in accordance with the
terms of the Lease. The schedule set forth above with respect to the
payment of any installment(s) of Base Rent for the Suite 200A
Expansion Space shall be appropriately adjusted on a per diem basis.
D. Xxxxx 000 Xxxxxxxxx Xxxxx Xxxx Xxxxx 000 Expansion Effective Date
Through The Extended Termination Date. As of the Suite 200 Expansion
Effective Date, the schedule of Base Rent payable with respect to the
Suite 200
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Expansion Space for the balance of the original Term and the Extended
Term is the following:
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Months of Term Annual Rate Annual Monthly
or Period Per Square Foot Base Rent Base Rent
--------------------------------------------------------------------------------------------
5/1/01-4/30/02 $100.80 $532,526.40 $44,377.20
--------------------------------------------------------------------------------------------
5/1/02-4/30/03 $104.83 $553,816.92 $46,151.41
--------------------------------------------------------------------------------------------
5/1/03-4/30/04 $109.02 $575,952.72 $47,996.06
--------------------------------------------------------------------------------------------
5/1/04-4/30/05 $113.38 $598,956.60 $49,915.55
--------------------------------------------------------------------------------------------
5/1/05-4/30/06 $117.92 $622,971.36 $51,914.28
--------------------------------------------------------------------------------------------
All such Base Rent shall be payable by Tenant in accordance with the
terms of the Lease. The schedule set forth above with respect to the
payment of any installment(s) of Base Rent for the Suite 200 Expansion
Space shall be appropriately adjusted on a per diem basis in the event
delivery of possession of the Suite 200 Expansion Space is delayed
beyond May 1, 2001.
IV. Additional Security Deposit.
----------------------------
A. Tenant shall deliver a letter of credit for Suite 200A (the "Suite
200A Letter of Credit") to Landlord upon execution of this Amendment.
The security deposit for Suite 200A (the "Suite 200A Security
Deposit") shall be in the form of an irrevocable letter of credit,
similar to the form attached hereto as Exhibit C, which Suite 200A
Letter of Credit shall: (i) be in the amount of $918,766.80; (ii) be
in form and substance satisfactory to Landlord; (c) name Landlord as
its beneficiary; (d) be drawn on an FDIC insured financial institution
reasonably satisfactory to the Landlord; and (e) expire no later than
60 days after the Extended Termination Date. Notwithstanding anything
herein to the contrary, provided Tenant is not in default under this
Lease as of the effective date of any reduction of the Suite 200A
Security Deposit, Tenant shall have the right to reduce the amount of
the Suite 200A Security Deposit (i.e. the Suite 200A Letter of Credit)
pursuant to Section 4 of the Lease.
B. Tenant shall deliver a letter of credit for Suite 200 (the "Suite 200
Letter of Credit") to Landlord on or before May 1, 2001. The security
deposit for Suite 200 (the "Suite 200 Security Deposit") shall be in
the form of an irrevocable letter of credit, similar to the form
attached hereto as Exhibit C, which Suite 200 Letter of Credit shall:
(i) be in the amount of $1,318,161.60; (ii) be in form and substance
satisfactory to Landlord; (c) name Landlord as its beneficiary; (d) be
drawn on an FDIC insured financial institution satisfactory to the
Landlord; and (e) expire no later than 60 days after the Extended
Termination Date. Provided that Tenant is not in default under the
Lease, Landlord shall, upon receipt of the Suite 200 Letter of Credit,
return the Suite 200A Letter of Credit to Tenant. Notwithstanding
anything herein to the contrary, provided Tenant is not in default
under this Lease as of the effective date of any reduction of the
Suite 200 Security Deposit, Tenant shall have the right to reduce the
amount of the Suite 200 Security Deposit (i.e. the Suite 200 Letter of
Credit) pursuant to Section 4 of the Lease.
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C. Tenant shall deliver a letter of credit for the Premises (the "Third
Letter of Credit") to Landlord on or before September 1, 2001. The
security deposit for the Premises (the "Additional Security Deposit")
shall be in the form of an irrevocable letter of credit, similar to
the form attached hereto as Exhibit C, which the Third Letter of
Credit shall: (i) be in the amount of $1,504,506.00; (ii) be in form
and substance satisfactory to Landlord; (c) name Landlord as its
beneficiary; (d) be drawn on an FDIC insured financial institution
satisfactory to the Landlord; and (e) expire no later than 60 days
after the Extended Termination Date. Provided that Tenant is not in
default under the Lease, Landlord shall, upon receipt of the Third
Letter of Credit, return the Suite 200 Letter of Credit and the letter
of credit in the amount of $278,458.00 (the "Existing L/C") to Tenant.
Landlord and Tenant acknowledge and agree that the Existing L/C is the
remaining amount of the security deposit in the form of a letter of
credit through the Third Amendment of the Lease. Notwithstanding
anything herein to the contrary, provided Tenant is not in default
under this Lease as of the effective date of any reduction of the
Suite 200 Security Deposit, Tenant shall have the right to reduce the
amount of the Additional Security Deposit (i.e. the Third Letter of
Credit) as follows: (i) $1,485,236.00 effective as of February 1,
2002; (ii) $1,221,604.00 effective June 1, 2002; $1,185,182.00
effective September 1, 2002; (iv) $1,165,912.00 effective February 1,
2003; (v) $902,280.00 effective June 1, 2003; (vi) $865,859.00
effective September 1, 2003; (vii) $846,588.00 effective February 1,
2004; (viii) $582,956.00 effective June 1, 2004; and (ix) $319,324.00
effective June 1, 2005.
V. Tenant's Share.
---------------
A. For the period commencing with the Suite 200A Expansion Effective Date
and ending on the Extended Termination Date, Tenant's Share for the
Suite 200A Expansion Space is 19.6676%.
B. For the period commencing with the Suite 200 Expansion Effective Date
and ending on the Extended Termination Date, Tenant's Share for the
Suite 200 Expansion Space is 8.5497%.
VI. Operating Costs and Taxes.
--------------------------
A. Suite No. 280 and Suite No. 285 for the Extended Term. For the period
commencing with the Suites 280 and 285 Extension Date and ending on
the Extended Termination Date, Tenant shall pay for Tenant's Share of
Operating Costs and Taxes applicable to Suite No. 280 and Suite No.
285 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 Xx. 000 xxx
Xxxxx Xx. 000 xxxxx xx 2000.
B. Xxxxx 000X Xxxxxxxxx Xxxxx Xxxx Xxxxx 000X Expansion Effective Date
Through Extended Termination Date. For the period commencing with the
Suite 200A Expansion Effective Date and ending on the Extended
Termination Date, Tenant shall pay for Tenant's Share of Operating
Costs and Taxes applicable to the Suite 200A Expansion Space in
accordance with the terms of the Lease, provided, however, during such
period, the Base Year for the computation of
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Tenant's Share of Operating Costs and Taxes applicable to the Suite
200A Expansion Space is 2001.
C. Suite 200 Expansion Space From Suite 200 Expansion Effective Date
Through Extended Termination Date. For the period commencing with the
Suite 200 Expansion Effective Date and ending on the Extended
Termination Date, Tenant shall pay for Tenant's Share of Operating
Costs and Taxes applicable to the Suite 200 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 200 Expansion Space
is 2001.
VII. Improvements to Xxxxx 000X Xxxxxxxxx Xxxxx xxx Xxxxx 000 Expansion Space.
-------------------------------------------------------------------------
A. Condition of Suite 200A Expansion Space and Suite 200 Expansion Space.
Tenant has inspected the Suite 200A Expansion Space and Suite 200
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.
B. Responsibility for Improvements to Xxxxx 000X Xxxxxxxxx Xxxxx xxx
Xxxxx 000 Expansion Space. Any construction, alterations or
improvements to the Suite 200A Expansion Space and Suite 200 Expansion
Space shall be performed by Tenant at its sole cost and expense and
shall be governed in all respects by the provisions of Section 6 of
the Lease. Landlord and Tenant agree that Commercial Interiors
Contractors ("CIC") shall be the general contractor performing any
Improvements to the Suite 200A Expansion Space and Suite 200 Expansion
Space. In any and all events, the Suite 200A Expansion Effective Date
and the Suite 200 Expansion Effective Date shall not be postponed or
delayed if the initial improvements to the Suite 200A Expansion Space
or the Suite 200 Expansion Space, as the case may be, are incomplete
on the Suite 200A Effective Date or the Suite 200 Expansion Effective
Date, as the case may be, for any reason whatsoever. Any delay in the
completion of initial improvements to the Suite 200A Expansion Space
or the Suite 200 Expansion Space shall not subject Landlord to any
liability for any loss or damage resulting therefrom. Notwithstanding
the foregoing to the contrary, Landlord, at its sole cost and expense
shall construct a demising wall between the Suite 200A Expansion Space
and the Suite 200 Expansion Space using Building standard methods,
materials and finishes.
C. Provided Tenant is not in default under this Lease, Tenant shall have
the right to borrow up to $127,448.00 for the 31,852 rentable square
feet of the Building that consists of Suite Nos. 200, 200A, 280 and
285 on the 2/nd/ floor of the Building (the "Allowance") from Landlord
in order to finance the cost of the interior sprinkler work (the
"Sprinkler Work"). Any portion of the Allowance which exceeds the cost
of the Sprinkler Work or is otherwise remaining after April 30, 2001
shall accrue to the sole benefit of Landlord, it being agreed that
Tenant shall not be entitled to any credit, offset, abatement or
payment with respect thereto. Any Allowance borrowed by Tenant
hereunder shall be repaid to Landlord as Additional Rent in equal
monthly installments at an interest rate equal to 12% per annum over a
period of 60 months. If Tenant is in default under
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the Lease after the expiration of applicable cure periods, the entire
unpaid balance of the Allowance borrowed by Tenant shall become
immediately due and payable and, except to the extent required by
applicable law, shall not be subject to mitigation or reduction in
connection with a reletting of the Premises by Landlord.
VIII. Early Access to Suite 200A Expansion Space and Suite 200 Expansion Space.
-------------------------------------------------------------------------
During any period that Tenant shall be permitted to enter the Suite 200A
Expansion Space or the Suite 200 Expansion Space prior to the Suite 200A
Expansion Effective Date and Suite 200 Expansion Effective Date (e.g., to
perform alterations or improvements), 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 200A Expansion Space and
Suite 200 Expansion Space. If Tenant takes possession of the Suite 200A
Expansion Space and Suite 200 Expansion Space prior to the Suite 200A
Expansion Effective Date and Suite 200 Expansion Effective Date for any
reason whatsoever (other than the performance of work in the Suite 200A
Expansion Space and Suite 200 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 200A Expansion Space
and Suite 200 Expansion Space to Landlord on a per diem basis for each
day of occupancy prior to the Suite 200A Expansion Effective Date and
Suite 200 Expansion Effective Date.
IX. Other Pertinent Provisions.
--------------------------
A. Contingency. Landlord and Tenant acknowledge and agree that the terms
-----------
and provisions of this Amendment are expressly contingent upon
Landlord entering into a lease reduction amendment for the Suite 200A
Expansion Space with American Online, Inc., a Delaware corporation
("American Online") on terms satisfactory to Landlord. If such
reduction amendment has not been executed by American Online in a form
satisfactory to Landlord by December 1, 2000, then either party may
terminate this Amendment by providing written notice thereof to the
other party whereupon this Amendment shall be null and void and of no
force or effect.
B. Clarification of Tenant Name. The Lease dated September 1, 1998 was
----------------------------
executed by Tenant under the name "Blue Martini LLC." The Second
Amendment to Lease dated August 5, 1999, ("Second Amendment") and the
Third Amendment to Lease dated January 11, 2000 ("Third Amendment")
was executed by "Blue Martini, Inc., a California corporation."
Tenant hereby represents and warrants to Landlord that, to the best of
Tenant's knowledge, there is no, and never has been, any such legal
entity known as "Blue Martini LLC" and "Blue Martini, Inc., a
California corporation." Instead, Tenant is known as "Blue Martini
Software, Inc., a Delaware corporation." Tenant further represents
and warrants to Landlord that the undersigned Tenant is the same party
which entered into the Lease, Second Amendment and Third Amendment,
fully intending to be bound thereby. Tenant hereby covenants and
agrees, and represents and warrants, that the undersigned Tenant is
bound as tenant, and is fully obligated for all of the tenant's
obligations under the Lease, Second Amendment and Third Amendment as
though the Lease, Second Amendment and Third Amendment had been
properly executed by the undersigned Tenant as of the original date of
execution of such Lease, Second Amendment and Third Amendment.
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X. 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
Amendment.
F. Tenant hereby represents to Landlord that Tenant has dealt with no
broker in connection with this Amendment. Tenant agrees to indemnify
and hold Landlord, its 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 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-PENINSULA OFFICE PARK, 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: ___________________________
Name: _________________________
Title: ________________________
TENANT:
BLUE MARTINI SOFTWARE, INC., a Delaware corporation
By: _______________________________
Name: _____________________________
Title: ____________________________
By: _______________________________
Name: _____________________________
Title: ____________________________
0
XXXXXXX X
XXXXXXX XXX XXXXXXXX XX XXXXX 000X EXPANSION SPACE
--------------------------------------------------
00
XXXXXXX X
XXXXXXX XXX XXXXXXXX XX XXXXX 000 EXPANSION SPACE
-------------------------------------------------
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EXHIBIT C
---------
SAMPLE LETTER OF CREDIT
________________________
[Name of Financial Institution]
Irrevocable Standby
Letter of Credit
No. ______________________
Issuance Date:_____________
Expiration Date:____________
Applicant:__________________
Beneficiary
-----------
EOP-Peninsula Office Park, L.L.C.
Peninsula Office Park
0000 Xxxxxx Xxxxx, 0/xx/ Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn: Leasing Director
Ladies/Gentlemen:
We hereby establish our Irrevocable Standby Letter of Credit in your favor
for the account of the above referenced Applicant in the amount of
____________________ U.S. Dollars ($____________________) available for payment
at sight by your draft drawn on us when accompanied by the following documents:
1. An original copy of this Irrevocable Standby Letter of Credit.
2. Beneficiary's dated statement purportedly signed by one of its officers
reading: "This draw in the amount of ______________________ U.S. Dollars
($____________) under your Irrevocable Standby Letter of Credit No.
____________________ represents funds due and owing to us as a result of
the Applicant's failure to comply with one or more of the terms of that
certain lease by and between EOP-Peninsula Office Park, L.L.C., as
landlord, and Blue Martini Software, Inc., a Delaware corporation, as
tenant."
It is a condition of this Irrevocable Standby Letter of Credit that it will
be considered automatically renewed for a one year period upon the expiration
date set forth above and upon each anniversary of such date, unless at least 60
days prior to such expiration date or applicable anniversary thereof, we notify
you in writing by certified mail, return receipt requested, that we elect not to
so renew this Irrevocable Standby Letter of Credit. A copy of any such notice
shall also be sent to: Equity Office Properties Trust, 0 Xxxxx Xxxxxxxxx Xxxxx,
Xxxxx 0000, Xxxxxxx, XX 00000, Attention: Senior Vice-President-Treasurer. In
addition to the foregoing, we understand and agree that you shall be entitled to
draw upon this Irrevocable Standby Letter of Credit in accordance with 1 and 2
above in the event that we elect not to renew this Irrevocable Standby Letter of
Credit and, in addition, you provide us with a dated statement purportedly
signed by one of Beneficiary's officers stating that the Applicant has failed to
provide you with an acceptable substitute irrevocable standby letter of credit
in accordance with the terms of the above referenced lease. We further
acknowledge and agree
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that: (a) upon receipt of the documentation required herein, we will honor your
draws against this Irrevocable Standby Letter of Credit without inquiry into the
accuracy of Beneficiary's signed statement and regardless of whether Applicant
disputes the content of such statement; (b) this Irrevocable Standby Letter of
Credit shall permit partial draws and, in the event you elect to draw upon less
than the full stated amount hereof, the stated amount of this Irrevocable
Standby Letter of Credit shall be automatically reduced by the amount of such
partial draw; and (c) you shall be entitled to assign your interest in this
Irrevocable Standby Letter of Credit from time to time without our approval and
without charge. In the event of an assignment, we reserve the right to require
reasonable evidence of such assignment as a condition to any draw hereunder.
This Irrevocable Standby Letter of Credit is subject to the Uniform Customs
and Practice for Documentary Credits (1993 revision) ICC Publication No. 500.
We hereby engage with you to honor drafts and documents drawn under and in
compliance with the terms of this Irrevocable Standby Letter of Credit.
All communications to us with respect to this Irrevocable Standby Letter of
Credit must be addressed to our office located at _____________________________
_________________ to the attention of __________________________________.
Very truly yours,
_______________________
[name]
-----------------------
[title
-----------------------
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