THIRD AMENDMENT TO CUPERTINO CITY CENTER NET OFFICE LEASE
EXHIBIT
10.73
THIRD
AMENDMENT TO CUPERTINO CITY CENTER NET OFFICE LEASE
THIS
THIRD AMENDMENT TO CUPERTINO CITY CENTER NET OFFICE LEASE (this “Third
Amendment”) is made and entered into as of this _11th__ day of _July_, 2008 (the
“Effective Date”) by and between CUPERTINO CITY CENTER BUILDINGS, a California
limited partnership (“Lessor”), and CHORDIANT SOFTWARE, INC., a Delaware
corporation (“Lessee”).
RECITALS:
A. Lessor
and Lessee entered into that certain Cupertino City Center Net Office Lease
dated June 19, 1998 (the “Original Lease”), as amended by that certain First
Amendment to Cupertino City Center Net Office Lease dated December 31, 2003 (the
“First Amendment”), as amended by that certain Second Amendment to Cupertino
City Center Net Office Lease dated March 10, 2006 (the “Second Amendment”, and
together with the Original Lease and the First Amendment, the “Lease”), pursuant
to which Lessor leased to Lessee certain premises (as more particularly
described in the Lease), consisting of approximately twenty-four thousand nine
hundred sixty-two (24,962) rentable square feet and more commonly known as 00000
Xxxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxx (the
“Premises”). All initial capitalized terms used herein but not herein
defined shall have the meaning ascribed to such terms in the Lease.
X. Xxxxxx
and Lessee now desire to enter into this Third Amendment to memorialize the Base
Rent in connection with Lessee’s exercise of its option to extend the Term of
the Lease, and to otherwise amend the Lease on terms and conditions set forth in
this Third Amendment.
NOW, THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
Lessor and Lessee hereby agree as follows:
1. INCORPORATION OF
RECITALS. The recitals expressed in A and B above are true and
correct, incorporated herein and made a part of this Third Amendment by this
reference.
2. AMENDMENTS. Commencing
on the Effective Date, the Lease shall be amended as follows:
a. Lessor
and Lessee hereby acknowledge and agree that Lessee has exercised its option to
extend the Term of the Lease pursuant to Section 2.f. of the First
Amendment. Therefore, the Term of the Lease, which was previously
scheduled to expire on December 31, 2008, is hereby extended such that the Term
shall expire on December 31, 2013 (the sixty (60) month period commencing on
January 1, 2009 and expiring on December 31, 2013 shall be referred to herein as
the “Extension Term”).
b. Notwithstanding
the provisions of Article 3.b. of the Original Lease and Section 2.f. of the
First Amendment to the contrary, the Base Rent during the Extension Term shall
be as follows:
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Base
Rent Per Month
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Base
Rent
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|||||
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Per
SF of Rentable Area
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Per
Month
|
|||||
|
January
1, 2009 – December 31, 2009
|
$3.10
|
$
77,382.20
|
||||
|
January
1, 2010 – December 31, 2010
|
$3.19
|
$
79,628.78
|
||||
|
January
1, 2011 – December 31, 2011
|
$3.29
|
$
82,124.98
|
||||
|
January
1, 2012 – December 31, 2012
|
$3.39
|
$
84,621.18
|
||||
|
January
1, 2013 – December 31, 2013
|
$3.49
|
$
87,117.38
|
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c. Section
2.c. of the First Amendment, which previously converted the Lease from a “triple
net” lease to a “full service” lease, is hereby deleted in its entirety, and the
original five (5) paragraphs of Article 7.b. of the Original Lease are hereby
reinstated in their entirety such that the Lease shall be converted back to a
“triple net” lease.
d. Article
1.l. shall be amended to provide that notices to Lessor shall be delivered to
the following:
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Lessor:
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c/o
Prometheus Real Estate Group, Inc.
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0000
Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
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Xxx Xxxxx,
XX 00000
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Attn: Executive
Vice President
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Telephone
No.: (000) 000-0000
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Fax
No.: (000) 000-0000
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with
a concurrent copy to:
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c/o
Prometheus Real Estate Group, Inc.
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0000
Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
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Xxx Xxxxx,
XX 00000
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Attn: Chief
Financial Officer
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Telephone
No.: (000) 000-0000
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Fax
No.: (000) 000-0000
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and
with a concurrent copy to the
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Project
Management Office at:
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00000
Xxxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000
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Xxxxxxxxx,
Xxxxxxxxxx 00000
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Attn: Property
Manager
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Telephone
No.: (000) 000-0000
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Fax
No.: (000) 000-0000
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e. Option to
Extend. Lessee shall have the option to further extend the
Term of the Lease for one (1) period of sixty (60) months, commencing
immediately following the expiration of the Extension Term, on the terms and
conditions set forth in Article 3.b. of the Original Lease; provided, however,
that (i) Lessee shall deliver the Option Notice no more than twelve (12) months
but no less than nine (9) months before the expiration of the current Term (as
extended by this Third Amendment), and (ii) notwithstanding the amount of the
Base Rent payable at the expiration of the Extension Term, the Base Rent shall
be adjusted as of the commencement of the new extension term to be an amount
equal to one hundred percent (100%) of the then current “Fair Market Rental
Value” (as defined and determined pursuant to the procedure set forth in Article
3.b. of the Original Lease) of the Premises at the time of the commencement of
the new extension term.
f. Tenant Improvement
Allowance. Lessor shall pay to Lessee an amount equal to Five
Dollars ($5.00) per square foot of Rentable Area (the "Tenant Improvement
Allowance"), to be applied to costs incurred by Lessee in constructing Lessee’s
Alterations. In no event shall more than One Dollars and 25/100
($1.25) per square foot of Rentable Area of the Tenant Improvement
Allowance be used toward the cost of phones, wiring, furniture, fixtures,
equipment or other personal property. The Tenant Improvement
Allowance is personal to Lessee and may not be assigned to any assignee or
subleseee (except in the event of a Permitted Transfer). The Tenant
Improvement Allowance shall be
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disbursed
in a lump sum after delivery to Lessor of invoices and unconditional lien
releases for the work to which Lessee seeks to apply the Tenant Improvement
Allowance; provided, however, that such invoices and unconditional lien releases
must be delivered to Lessor within twelve (12) months after the Effective
Date. In the event the Tenant Improvement Allowance is greater than
the amounts stated on the invoices delivered to Lessor within the aforementioned
time period, the excess shall be retained by Lessor.
g. Article
13.g. of the Original Lease shall be deleted in its entirety and replaced with
the following:
“Excess
Consideration. In the event of any Transfer (other than a
Permitted Transfer), Lessor shall receive as additional rent hereunder, fifty
percent (50%) of Lessee’s “Excess Consideration” derived from such
Transfer. As used herein, “Excess Consideration” shall mean all rent,
additional rent, key money, bonus money and/or other consideration received by
Lessee from a Transferee and/or paid by a Transferee on behalf of Lessee in
connection with the Transfer in excess of the rent, additional rent and other
sums payable by Lessee under this Lease (on a per square foot basis if less than
all of the Premises is subject to such Transfer), excluding any consideration
attributable to the sale or lease of Lessee’s furniture, fixtures, or equipment
in the Premises, less the sum of Lessee’s reasonable out-of-pocket costs
incurred for brokerage commissions, attorneys’ fees and any Alterations to the
Premises or improvement allowances in connection with such Transfer, any lease
takeover payment paid to or for the benefit of the Transferee, any reasonable
costs of advertising the Premises (or applicable portion thereof) for sublease
or assignment. If part of the Excess Consideration shall be payable
by the Transferee other than in cash, then Lessor’s share of such non-cash
consideration shall be in such form as is reasonably satisfactory to
Lessor.”
3. BROKERS. Lessor
and Lessee each warrant to the other that it has had no dealing with any real
estate broker or agent in connection with this Third Amendment except for
Cornish & Xxxxx Commercial representing Lessee (“Lessee’s Broker”), whose
commission shall be paid by Lessor in accordance with the provisions of a
separate written agreement between Lessor and Lessee’s Broker, and that Lessor
and Lessee know of no other real estate broker who is entitled to or can claim a
commission in connection with this Third Amendment. Lessee agrees to
indemnify, defend and hold Lessor harmless from and against any and all claims,
demands, losses, liabilities, lawsuits, judgments, and costs and expenses
(including, without limitation, reasonable attorneys’ fees and expenses) with
respect to any alleged leasing commission or equivalent compensation alleged to
be owing on account of Lessee’s dealings with any other real estate broker or
agent.
4. NON-DISCLOSURE. Lessee
acknowledges that the terms and conditions of this Third Amendment are
confidential and proprietary in nature (“Confidential Information”), reflecting
a business transaction between Lessor and Lessee. Each party agrees
that it shall take reasonable measures to protect the secrecy of and avoid
disclosure and unauthorized use of the Confidential
Information. Lessee agrees not to disclose the Confidential
Information to any third parties, including but not limited to, real estate
brokers (except for Lessee’s Broker), existing tenants of the Project,
prospective tenants of the Project, or any other person or entity without the
prior written permission of Lessor. Disclosure of the Confidential
Information by Lessee to unauthorized parties will constitute a breach under the
Lease.
5. MISCELLANEOUS.
a. This
Third Amendment may be executed in one or more counterparts, each of which shall
be an original, and all of which shall constitute one instrument. The
parties contemplate that they may be executing counterparts of this Third
Amendment transmitted by facsimile and agree and
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intend
that a signature by facsimile machine shall bind the party so signing with the
same effect as though the signature were an original signature.
b. Except
as set forth in this Third Amendment, the Lease shall remain unchanged, in full
force and effect. If there is any inconsistency between the terms of this Third
Amendment and the terms of the Lease, the terms of this Third Amendment shall
control.
IN WITNESS WHEREOF, Lessor and Lessee
have entered into this Third Amendment as of the date first written
above.
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LESSOR:
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LESSEE
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CUPERTINO
CITY CENTER BUILDINGS,
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CHORDIANT
SOFTWARE, INC.,
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a
California limited partnership
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a
Delaware corporation
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By:
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PROM
XX, INC.,
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By:
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/s/
Xxxxx Xxxxxx
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a
California corporation
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its
general partner
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Print
Name:
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XXXXX
XXXXXX
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By:
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PROMETHEUS
REAL ESTATE
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Its
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CHIEF
FINANCIAL OFFER
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GROUP,
INC.,
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a
California corporation
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Date:
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July
10
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,
2008
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agent
for owner
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By:
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/s/ Xxxxxx X.
Satier
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By:
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/s/
Xxxx Xxxxxxx
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|||||||||||
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Print
Name:
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XXXXXX
X. SATIER
|
Print
Name:
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XXXX
XXXXXXX
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|||||||||||
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Its:
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EXECUTIVE
VICE PRESIDENT, PRINCIPAL
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Its:
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VICE
PRESIDENT, HUMAN RESOURCES
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Date
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July
11
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,
2008
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Date
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July
10
|
,
2008
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|||||||||
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By:
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/s/ Xxxxxxx
X. Xxxxx
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|||||||||||||
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Print
Name:
|
Xxxxxxx
X. Xxxxx
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Its:
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ASSISTANT
SECRETARY
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Date
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July
11
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,
2008
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