EXHIBIT 10.6(a)
FIRST AMENDMENT
THIS FIRST AMENDMENT (the "Amendment") is made and entered into as of the
22 day of March, 2002, by and between EOP-EMERYVILLE PROPERTIES, L.L.C., a
DELAWARE LIMITED LIABILITY COMPANY ("Landlord"), and ZIPREALTY, INC., a
CALIFORNIA CORPORATION ("Tenant").
RECITALS
A. Landlord and Tenant are parties to that certain lease dated November 28,
2001 (the "Lease"). Pursuant to the Lease, Landlord has leased to Tenant
space currently containing approximately 15,825 rentable square feet (the
"Premises") described as Suite No. 1555 on the 15th floor of the building
commonly known as Emeryville Tower III located at 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxx (the "Building").
B. Tenant and Landlord mutually desire that the Lease be amended on and
subject to 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. ROOF SPACE FOR DISH/ANTENNA. Effective as of the date of this Amendment,
Landlord and Tenant agree that the Lease shall be amended in accordance
with the following terms and conditions:
A. Tenant shall have the right, in consideration for payments of
$200.00 per month (the "Dish/Antenna Payments"), to lease space on
the roof of the Building for the purpose of installing (in
accordance with Section IX.C of the Lease), operating and
maintaining a one-meter dish/antenna or other communication device
approved by the Landlord (the "Dish/Antenna"). Tenant's obligation
to pay Dish/Antenna Payments shall commence on the day the
Dish/Antenna is installed and continue from and after the date of
this Amendment for the remainder of the Term, unless the Lease with
respect to the Roof Space terminates early in accordance with
Section I.L. below. Upon each and every anniversary date of the date
of this Amendment during the initial Term, and during any renewal
Term hereof, the monthly Dish/Antenna Payments referenced above
shall increase by 4% rounded to the nearest dollar, from the rate in
effect at the end of the immediately preceding year. The
Dish/Antenna Payments shall constitute Additional Rent under the
terms of the Lease and Tenant shall be required to make these
payments in strict compliance with the terms of Section IV of the
Lease. The exact location of the space on the roof to be leased by
Tenant shall be designated by Landlord and shall not exceed 25
square feet (the "Roof Space"), provided, however, Landlord agrees
to use its reasonable efforts to designate a location which meets
the "line of sight" requirements for operation of the Dish/Antenna
if such location is available. Landlord reserves the right to
relocate the Roof Space as reasonably necessary during the Term.
Landlord's designation shall take into account Tenant's use of the
Dish/Antenna, provided that if Landlord's designation prevents full
and proper operation of the Dish/Antenna as reasonably determined by
Tenant, Tenant may exercise its right to terminate the Lease with
respect to the Roof Space in accordance with Section I.L. below
unless Landlord designates an alternative Roof Space which allows
for full and proper operation of the Dish/Antenna. Notwithstanding
the foregoing, Tenant's right to install the Dish/Antenna shall be
subject to the approval rights of Landlord and Landlord's architect
and/or engineer with respect to the plans and specifications of the
Dish/Antenna, the manner in which the Dish/Antenna is attached to
the roof of the Building and the manner in which any cables are run
to and from the Dish/Antenna. The precise specifications and a
general description of the Dish/Antenna along with all documents
Landlord reasonably requires to review the installation of the
Dish/Antenna (the "Plans and Specifications") shall be submitted to
Landlord for Landlord's written approval no later than 20 days
before Tenant commences to install the Dish/Antenna. Tenant shall be
solely responsible for obtaining all necessary governmental and
regulatory approvals and for the cost of installing, operating,
maintaining and removing the Dish/Antenna. Tenant shall notify
Landlord upon completion of the installation of the Dish/Antenna. If
Landlord determines that the Dish/Antenna equipment does not comply
with the approved
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Plans and Specifications, that the Building has been damaged during
installation of the Dish/Antenna or that the installation was
defective, Landlord shall notify Tenant of any noncompliance or
detected problems and Tenant immediately shall cure the defects. If
the Tenant fails to immediately cure the defects, Tenant shall pay
to Landlord upon demand the cost, as reasonably determined by
Landlord, of correcting any defects and repairing any damage to the
Building caused by such installation. If at any time Landlord, in
its sole discretion, deems it necessary, Tenant shall provide and
install, at Tenant's sole cost and expense, appropriate aesthetic
screening, reasonably satisfactory to Landlord, for the Dish/Antenna
(the "Aesthetic Screening").
B. Landlord agrees that Tenant, upon reasonable prior written notice to
Landlord, shall have access to the roof of the Building and the Roof
Space for the purpose of installing, maintaining, repairing and
removing the Dish/Antenna, the appurtenances and the Aesthetic
Screening, if any, all of which shall be performed by Tenant or
Tenant's authorized representative or contractors, which shall be
approved by Landlord, such approval not to be unreasonably withheld,
at Tenant's sole cost and risk. It is agreed, however, that only
authorized engineers, employees or properly authorized contractors
of Tenant, FCC (defined below) inspectors, or persons under their
direct supervision will be permitted to have access to the roof of
the Building and the Roof Space. Tenant further agrees to exercise
firm control over the people requiring access to the roof of the
Building and the Roof Space in order to keep to a minimum the number
of people having access to the roof of the Building and the Roof
Space and the frequency of their visits.
C. It is further understood and agreed that the installation,
maintenance, operation and removal of the Dish/Antenna, the
appurtenances and the Aesthetic Screening, if any, is not permitted
to damage the Building or the roof thereof, or interfere with the
use of the Building and roof by Landlord. Tenant agrees to be
responsible for any damage caused to the roof or any other part of
the Building, which may be caused by Tenant or any of its agents or
representatives.
D. If, in the sole judgment of Landlord, any electrical,
electromagnetic, radio frequency or other interference shall result
from the operation of any of the Dish/Antenna, Tenant agrees that
Landlord may, at Landlord's option, shut down Tenant's equipment
upon 8 hours prior notice to Tenant; provided, however, if an
emergency situation exists, which Landlord reasonably determines in
its sole discretion to be attributable to the Dish/Antenna, Landlord
shall immediately notify Tenant orally, who shall act immediately to
remedy the emergency situation. Should Tenant fail to so remedy said
emergency situation, Landlord may then act to shut down Tenant's
equipment. Tenant shall indemnify Landlord and hold it harmless
from, and Tenant waives, all expenses, costs, damages, losses,
claims or other liabilities arising out of said shutdown. Tenant
agrees to cease operations (except for intermittent testing on a
schedule approved by Landlord) until the interference has been
corrected to the satisfaction of Landlord. If such interference has
not been corrected within 30 days, Landlord may require that Tenant
immediately remove from the Roof Space the specific item of
equipment causing such interference, in which latter case the
Dish/Antenna Payments shall be reduced by the portion of the fee
applicable to such Dish/Antenna equipment for the remainder of the
Term and all other terms and conditions of this Amendment shall
remain in full force and effect, provided, however, if all
Dish/Antenna (including appurtenances and Aesthetic Screening, if
any) used by Tenant are removed under this provision, then Tenant's
rights with respect to the Roof Space shall terminate as of the date
of removal and Section I.F. shall apply.
E. Tenant shall, at its sole cost and expense, and at its sole risk,
install, operate and maintain the Dish/Antenna in a good and
workmanlike manner, and in compliance with all Building, electric,
communication, and safety codes, ordinances, standards, regulations
and requirements, now in effect or hereafter promulgated, of the
Federal Government, including, without limitation, the Federal
Communications Commission (the "FCC"), the Federal Aviation
Administration ("FAA") or any successor agency of either the FCC or
FAA having jurisdiction over radio or telecommunications, and of the
state, city and county in which the Building is located. Tenant
shall cooperate generally with Landlord and other carriers to permit
the Building's rooftop to be and remain in compliance
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with all FCC and OSHA rules and regulations relating to radio
frequency emission levels and maximum permissible exposure,
including but not limited to the rules and regulations adopted in
FCC document OET 65 (which rules and regulations have also been
adopted by OSHA). If applicable, Tenant shall (i) reimburse Landlord
for Tenant's equitable share of the cost of conducting an initial
survey to ensure that the Building's rooftop is in compliance with
all FCC and OSHA rules and regulations for all carriers (a "Rooftop
Survey"), and (ii) to the extent the Dish/Antenna or the operation
thereof causes the Building's rooftop (or any section thereof) to
not be in compliance with such rules and regulations, Tenant shall
either (1) promptly remedy any such non-compliance in accordance
with Landlord's directions and at Tenant's sole cost and expense; or
(2) exercise its termination right with respect to the Roof Space in
accordance with Section I.L. below. In the event that Tenant (x)
relocates or makes any change to the Dish/Antenna located in the
Roof Space or (y) makes any change to the Dish/Antenna or operation
thereof which directly or indirectly affects the operation of
Dish/Antenna located in the Roof Space, Landlord may, at its option,
require that a new Rooftop Survey be conducted at Tenant's sole cost
and expense by an EME firm approved by Landlord in its reasonable
discretion. If Tenant believes that the Dish/Antenna is excluded
from coverage under FCC and OSHA rules and regulations, Tenant shall
demonstrate to Landlord's reasonable satisfaction that any such
Dish/Antenna is so excluded. Under this Lease, the Landlord and its
agents assume no responsibility for the licensing, operation and/or
maintenance of Tenant's equipment. The Dish/Antenna shall be
connected to Landlord's power supply in strict compliance with all
applicable Building, electrical, fire and safety codes. Neither
Landlord nor its agents shall be liable to Tenant for any stoppages
or shortages of electrical power furnished to the Dish/Antenna or
the Roof Space because of any act, omission or requirement of the
public utility serving the Building, or the act or omission of any
other tenant, invitee or licensee or their respective agents,
employees or contractors, or for any other cause beyond the
reasonable control of Landlord, and Tenant shall not be entitled to
any rental abatement for any such stoppage or shortage of electrical
power. Neither Landlord nor its agents shall have any responsibility
or liability for the conduct or safety of any of Tenant's
representatives, repair, maintenance and engineering personnel while
in or on any part of the Building or the Roof Space.
F. The Dish/Antenna, the appurtenances and the Aesthetic Screening, if
any, shall remain the personal property of Tenant, and shall be
removed by Tenant at its own expense at the expiration or earlier
termination of this Lease, or this Amendment or Tenant's right to
possession hereunder. Tenant shall repair any damage caused by such
removal, including the patching of any holes to match, as closely as
possible, the color surrounding the area where the equipment and
appurtenances were attached. Tenant agrees to maintain all of the
Tenant's equipment placed on or about the roof or in any other part
of the Building in proper operating condition and maintain same in
satisfactory condition as to appearance and safety in Landlord's
sole discretion. Such maintenance and operation shall be performed
in a manner to avoid any interference with any other tenants or
Landlord. Tenant agrees that at all times during the Term, it will
keep the roof of the Building and the Roof Space free of all trash
or waste materials produced by Tenant or Tenant's agents, employees
or contractors.
G. In light of the specialized nature of the Dish/Antenna, Tenant shall
be permitted to utilize the services of its choice for installation,
operation, removal and repair of the Dish/Antenna, the appurtenances
and the Aesthetic Screening, if any, subject to the reasonable
approval of Landlord. Notwithstanding the foregoing, Tenant must
provide Landlord with prior written notice of any such installation,
removal or repair and coordinate such work with Landlord in order to
avoid voiding or otherwise adversely affecting any warranties
granted to Landlord with respect to the roof. If necessary, Tenant,
at its sole cost and expense, shall retain any contractor having a
then existing warranty in effect on the roof to perform such work
(to the extent that it involves the roof), or, at Tenant's option,
to perform such work in conjunction with Tenant's contractor. In the
event the Landlord contemplates roof repairs that could affect
Tenant's Dish/Antenna, or which may result in an interruption of the
Tenant's telecommunication service, Landlord shall notify Tenant in
writing at least 30 days in advance (except in cases of an
emergency) prior to the commencement of such contemplated work in
order to allow Tenant to make other arrangements for such service.
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H. Tenant shall not allow any provider of telecommunication, video,
data or related services ("Communication Services") to locate any
equipment on the roof of the Building or in the Roof Space for any
purpose whatsoever other than for the contemplated operation of the
Dish/Antenna, nor may Tenant use the Roof Space and/or Dish/Antenna
to provide Communication Services to an unaffiliated tenant,
occupant or licensee of another building, or to facilitate the
provision of Communication Services on behalf of another
Communication Services provider to an unaffiliated tenant, occupant
or licensee of the Building or any other building.
I. Tenant acknowledges that Landlord may at some time establish a
standard license agreement (the "License Agreement") with respect to
the use of roof space by tenants of the Building. Tenant, upon
request of Landlord, shall enter into such License Agreement with
Landlord provided that such agreement does not materially alter the
rights or obligations of Tenant hereunder with respect to the Roof
Space.
J. Tenant specifically acknowledges and agrees that the terms and
conditions of Article XIV of the Lease (Indemnity and Waiver of
Claims) shall apply with full force and effect to the Roof Space and
any other portions of the roof accessed or utilized by Tenant, its
representatives, agents, employees or contractors.
K. If Tenant defaults under any of the terms and conditions of this
Section or the Lease, and Tenant fails to cure said default within
the time allowed by Article XIX of the Lease, Landlord shall be
permitted to exercise all remedies provided under the terms of the
Lease, including removing the Dish/Antenna, the appurtenances and
the Aesthetic Screening, if any, and restoring the Building and the
Roof Space to the condition that existed prior to the installation
of the Dish/Antenna, the appurtenances and the Aesthetic Screening,
if any. If Landlord removes the Dish/Antenna, the appurtenances and
the Aesthetic Screening, if any, as a result of an uncured default,
Tenant shall be liable for all costs and expenses Landlord incurs in
removing the Dish/Antenna, the appurtenances and the Aesthetic
Screening, if any, and repairing any damage to the Building, the
roof of the Building and the Roof Space caused by the installation,
operation or maintenance of the Dish/Antenna, the appurtenances, and
the Aesthetic Screening, if any.
L. Tenant shall have the right to terminate the Lease with respect to
the Roof Space at any time during the Term by delivering to Landlord
30 days advance written notice of Tenant's intent to terminate, in
which case Tenant's rights and obligations with respect to the Roof
Space shall terminate as of the 30th day (the "Roof Space
Termination Date") following Landlord's receipt of the termination
notice. If Tenant elects to terminate the Lease with respect to the
Roof Space (i) Tenant shall remove all Dish/Antenna, appurtenances
and Aesthetic Screening, if any, in accordance with Section I.F. of
this Amendment prior to the Roof Space Termination Date, and (ii)
Tenant shall remain liable for all Dish/Antenna Payments and other
sums due under the Lease with respect to the Roof Space up to and
including the Roof Space Termination Date, even though xxxxxxxx for
such may occur subsequent to the Roof Space Termination Date. The
termination of the Lease with respect to the Roof Space under this
Section I.L. shall have no effect on Landlord's and Tenant's
obligation under the Lease with respect to the Premises or on the
validity or enforceability of the Lease.
II. 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.
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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 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 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.
G. Each signatory of this Amendment represents hereby that he or she
has the authority to execute and deliver the same on behalf of the
party hereto for which such signatory is acting.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Amendment
as of the day and year first above written.
LANDLORD:
EOP-EMERYVILLE PROPERTIES, 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/ Xxxx Xxxxxxxxxx
-------------------------
Name: Xxxx Xxxxxxxxxx
Title: Senior Vice President
TENANT:
ZIPREALTY, INC., A CALIFORNIA CORPORATION
By: /s/ XXXX XXXX
-----------------------
Name: XXXX XXXX
Title: Vice President
By: /s/ XXXXXXX XXXXXXXXX
-----------------------
Name: XXXXXXX XXXXXXXXX
Title: Vice President
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