California-San Jose-2077 Gateway Place Lease [Amendment No. 1] - Spieker Properties LP and BackWeb Technologies Inc.
1ST AMENDMENT TO LEASE - EXPANSION
THIS 1ST AMENDMENT TO LEASE (this 1ST AMENDMENT) is made this 12th day of May,
2000 between SPIEKER PROPERTIES, L.P., a California limited partnership,
("LANDLORD"), and BACKWEB TECHNOLOGIES, INC., a Delaware corporation ("TENANT").
WHEREAS, Landlord and Tenant entered into a Lease dated December 23, 1998,
(as amended, the "LEASE"), for those certain premises located at SUITE 510, 2077
GATEWAY PLACE, San Jose, California (the "PREMISES"), as more fully described in
the Lease. Capitalized terms used but not otherwise defined herein shall have
the meanings given them in the Lease; and
WHEREAS, Landlord and Tenant desire to modify the Lease as provided
herein.
NOW, THEREFORE, in consideration of the covenants and agreements contained
herein, the parties hereby mutually agree as follows:
1. PREMISES:
The existing Premises of Suite 510, consisting of approximately 3,476
rentable square feet, shall be expanded to include:
A. Suite 550 of 2077 Gateway Place, San Jose, California, which is
deemed to consist of approximately 3,204 rentable square feet,
effective May 1st, 2000, or as soon as Landlord delivers Suite 550
to Tenant, and
B. Suite 500 of 2077 Gateway Place, San Jose, California, which is
deemed to consist of approximately 10,889 rentable square feet,
effective February 1, 2002.
2. TERM:
It is intended that the Lease for Suites 510, 550 and 500 shall all expire
on January 31, 2007. Therefore:
A. The term of the Lease for Suite 510 shall be extended by sixty (60)
months from February 1, 2002 until January 31, 2007.
B. The Term of the Lease for Suite 550 shall be for eighty-one (81)
months, commencing May 1st, 2000, or as soon as Landlord delivers
Suite 550 to Tenant, and shall expire January 31, 2007.
C. The Term of the Lease for Suite 500 shall be for sixty (60) months,
commencing February 1, 2002 and expiring January 31, 2007.
3. RENTAL:
The rental schedule for Base Rent each month shall be as follows:
SUITE 510 SUITE 550 SUITE 500 TOTAL
--------- --------- --------- -----
5/1/00 - 12/31/00 $ 8,864.00 9,868.00 0 $18,732.00/month
1/1/01 - 1/31/01 9,316.00 9,868.00 0 19,184.00/month
2/1/01 - 1/31/02 9,316.00 10,349.00 0 19,665.00/month
2/1/02 - 4/30/02 11,783.00 10,862.00 36,914.00 59,559.00/month
2/1/03 - 1/31/04 12,375.00 11,406.00 38,765.00 62,546.00/month
2/1/04 - 1/31/05 13,000.00 11,983.00 40,725.00 65,708.00/month
2/1/05 - 1/31/06 13,660.00 12,592.00 42,794.00 69,046.00/month
2/1/06 - 1/31/07 14,355.00 13,233.00 44,972.00 72,560.00/month
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4. OPERATING EXPENSES:
In addition to the Base Rent, Tenant shall pay Operating Expenses in
accordance with Paragraph 7 of the Lease. Estimated Operating Expenses for
the year 2000 are approximately $0.67 per rentable square foot. Therefore,
Estimated Operating Expenses for 2000 are as follows:
Suite 510 $2,341.00 per month
Suite 550 $2,147.00 per month
Suite 500 To be determined pending 2002
Estimated Operating Expenses
TOTAL 2000 EST OPERATING EXPENSES: $4,488.00 PER MONTH
Operating Expenses for years 2001 through 2007 shall be in accordance with
Paragraph 7 of the Lease.
5. SECURITY DEPOSIT:
Tenant shall increase the security deposit as follows:
On May 1, 2000 $ 92,500.00 $ 11,471.00 $ 103,971.00
On May 1, 2002 $896,029.00 $103,971.00 $1,000,000.00
6. LETTER OF CREDIT:
At Landlord's sole discretion, but without obligation, Tenant may request
the May 1, 2002 security deposit increase to be provided in the form of a
Letter of Credit, according to the following provisions:
A. DELIVERY OF LETTER OF CREDIT. In lieu of depositing an increased cash
security deposit with Landlord, Tenant may, upon Landlord's review of
Tenant's then-current audited financial statements, elect to deliver to
Landlord and cause to be in effect during the remainder of the Lease
Term an unconditional, irrevocable letter of credit ("LOC") in the
amount of $896,029.00 for the increased Security Deposit in this Lease
Amendment #1, as it may be increased as provided in this Amendment and
the Lease (the "LOC AMOUNT") for an initial term extending 30 days
beyond the expiration date of this Lease Amendment #1 or any extension
thereto. The LOC shall be in a form acceptable to Landlord and shall be
issued by an LOC bank selected by Tenant and acceptable to Landlord.
The text of the LOC shall expressly state that the LOC shall survive
the termination of this Lease. An LOC bank is a bank that accepts
deposits, maintains accounts, has a local office that will negotiate a
letter of credit, and the deposits of which are insured by the Federal
Deposit Insurance Corporation. Tenant shall pay all expenses, points,
or fees incurred by Tenant in obtaining the LOC. The LOC shall not be
mortgaged, assigned or encumbered in any manner whatsoever by Tenant
without the prior
<PAGE> 3
B. REPLACEMENT OF LETTER OF CREDIT. Tenant may, from time to time, replace
any existing LOC with a new LOC if the new LOC (a) becomes effective at
least thirty (30) days before expiration of the LOC that it replaces;
(b) is in the required LOC amount; (c) is issued by an LOC bank
acceptable to Landlord; and (d) otherwise complies with the
requirements of this Paragraph 6.
C. LANDLORD'S RIGHT TO DRAW ON LETTER OF CREDIT. Landlord shall hold the
LOC as security for the performance of Tenant's obligations under this
Lease. If, after notice and failure to cure within any applicable
period provided in this Lease, Tenant defaults on any provision of this
Lease, Landlord may, without prejudice to any other remedy it has, draw
on that portion of the LOC necessary to (a) pay Rent or other sum in
default; (b) pay or reimburse Landlord for any amount that Landlord may
spend or become obligated to spend in exercising Landlord's rights
under Paragraph 30 (Right of Landlord to Perform Tenant's Covenant);
and/or (c) compensate Landlord for any expense, loss, or damage that
Landlord may suffer because of Tenant's default. If Tenant fails to
renew or replace the LOC at least thirty (30) days before its
expiration, Landlord may, without prejudice to any other remedy it has,
draw on the entire amount of the LOC.
D. LOC SECURITY DEPOSIT. Any amount of the LOC that is drawn on by
Landlord but not applied by Landlord shall be held by Landlord as a
security deposit (the "LOC SECURITY DEPOSIT") in accordance with
Paragraph 19 of this Lease.
E. RESTORATION OF LETTER OF CREDIT AND LOC SECURITY DEPOSIT. If Landlord
draws on any portion of the LOC and/or applies all or any portion of
such draw, Tenant shall, within five (5) business days after demand by
Landlord, either (a) deposit cash with Landlord in an amount that, when
added to the amount remaining under the LOC and the amount of any LOC
Security Deposit, shall equal the LOC Amount then required under this
Paragraph 6; or (b) reinstate the LOC to the full LOC Amount.
If Tenant elects to have Landlord review Tenant's then-current audited
financial statements, Landlord is obligated in no way to decrease Tenant's
security deposit.
7. TENANT'S PROPORTIONATE SHARE:
Tenant's Proportionate Share of the Building shall be as follows:
Suite 510 4.60%
Suite 550 4.24%
Suite 500 14.42%
8. TENANT IMPROVEMENTS:
Tenant shall accept the Premises in "as-is" condition. However, Landlord
shall shampoo the carpets and clean, repair and replace blinds as necessary
within suites 550, 500 and 510. Landlord will also patch and paint damage to
the reception area wall in Suite 550.
Tenant may, at Tenant's sole cost, construct the improvements as shown on the
Attached Exhibit #1 to this Amendment. All improvements made to the Premises
by Tenant shall be in accordance with the provisions of Paragraph 12 of the
Lease. Landlord will charge a lowered administration fee of five percent (5%)
of the cost of the improvements shown on the attached Exhibit 1.
<PAGE> 4
9. PARKING
Notwithstanding the provisions of Paragraph 37 of the Lease, Landlord will
be implementing parking charges by the end of 2000. Tenant shall pay to
Landlord (or Landlord's parking contractor, if so directed in writing by
Landlord), as Additional rent hereunder, the monthly charges established
from time to time by Landlord for parking in such parking areas. Such
parking charges shall be payable in advance with Tenant's payment of Basic
Rent. No deductions from the monthly parking charge shall be made for days
on which the Tenant does not use any of the parking spaces entitled to be
used by Tenant.
Except as expressly modified above, all terms and conditions of the lease
remain in full force and effect and are hereby ratified and confirmed.
IN WITNESS WHEREOF, the parties hereto have entered into this First
Amendment as of the date first written above.
LANDLORD: TENANT:
Spieker Properties, L.P., BackWeb Technologies, Inc.
a California limited partnership a Delaware corporation
By: Spieker Properties, Inc. By: /s/ CHRIS MARSHALL 05-12-2000
a Maryland corporation -----------------------------
its General Partner Chris Marshall
Its: Sr. Dir. of Finance &
Corp. Controller
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By: /s/ JOHN W. PETERSEN
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John W. Petersen
Its: Vice President
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