FIRST AMENDMENT TO OFFICE LEASE AGREEMENT
FIRST AMENDMENT TO OFFICE LEASE AGREEMENT
THIS FIRST AMENDMENT TO OFFICE LEASE AGREEMENT (this "Amendment") is executed as of December 21, 2001, by and between WEO-CONCAR, LLC, a California limited liability company, formerly known as Office Opportunity Associates, LLC, a California limited liability company ("Landlord"), and SIEBEL SYSTEMS, INC., a Delaware corporation ("Tenant").
Recitals
NOW THEREFORE
, in consideration of, and incorporating, the foregoing recitals and the mutual agreements of the parties herein, Landlord and Tenant hereby agree as follows:- Changes and Additions to Building Shell .
- Tenant hereby requests Landlord make and incorporate those changes and additions to the Building Shell which are set forth in Attachment A hereto ("Building Shell Changes"), which Building Shell Changes Landlord hereby approves and agrees to incorporate into the Buildings pursuant to the provisions of this Amendment. The costs to be charged to Tenant in connection with such Building Shell Changes shall be the Estimated Costs set forth on Attachment A ("Tenant's Shell Costs"), together with reasonable design and architectural fees incurred by Landlord in connection with the Building Shell Changes, which fees have been approved by Tenant, which approval shall not be unreasonably withheld ("Design Costs"). In addition to Tenant's Shell Costs and Design Costs, Tenant shall pay to Landlord a development and construction management fee ("Landlord's Overhead") equal to five percent (5%) of Tenant's Shell Costs.
- Tenant acknowledges that the Building Shell Changes do not constitute and are not being sought as Warm Shell Construction Item changes to the Building Shell pursuant to Section 9 of Exhibit D (Construction Rider) to the Original Lease. Tenant acknowledges that the date for exercising its rights for the Warm Shell Construction Items under said Section 9 has passed and Tenant hereby waives and releases all its rights under said Section 9.
- Landlord and Tenant acknowledge and agree that no Tenant Delay shall be deemed to have occurred as a result of the Building Shell Changes, including as a result of any preparation or modification of building plans and drawings, cost estimates, construction contracts or change orders, or as a result of Landlord's construction of such Building Shell Changes.
- Application of the Tenant Improvement Allowance to Tenant's Shell Costs . Landlord agrees to pay for the costs of constructing the Building Shell Changes, and for the Design Costs and Landlord's Overhead, as an offset against the Tenant Improvement Allowance, and that therefore the Tenant Improvement Allowance will be reduced by Tenant's Shell Costs, the Design Costs and Landlord's Overhead.
- Required Removables . Landlord has indicated on Attachment A which of the Building Shell Changes will need to be removed upon the expiration or earlier termination of the Lease, and therefore, same shall constitute Required Removables under the Lease. Landlord's approval of any Changes to the Tenant Improvements resulting from Building Shell Changes may be conditioned upon Tenant's agreement to remove any particular items thereof which are expressly so identified by Landlord as a Required Removable at the time Landlord finally and formally approves such Change. All such Required Removables shall be removed and the Property restored in connection with said removal, in the same manner as required of Tenant with respect to all other Required Removables pursuant to all applicable provisions of the Lease, including, without limitation, Sections VIII and XXX of the Original Lease. Notwithstanding the foregoing, although Attachment A indicates that the Building Shell Changes listed as items 56, 61, 64, 100 and 101 are Required Removables, Tenant will not be required to remove any below-grade piping or conduit that are part of such items, but shall be required to remove all above grade-elements, such as piping, conduit and fixtures and to cap any piping or conduit flush with slabs or ground surface.
- Base Rent During Pre-Term Period . Tenant agrees to pay to Landlord Base Rent for each floor of the Premises for which the Rent Commencement Date has occurred from the Rent Commencement Date therefor until the Commencement Date of the Lease at the same rate per rentable square foot of the Premises as is applicable to the Premises for Months 1-12 as set forth in the Basic Lease Information.
- Letter of Credit .
- Tenant has previously delivered to Landlord the sum of One Million One Hundred Ninety-Nine Thousand Two Hundred and Fifty Dollars ($1,199,250.00), which represents the estimated first month's Base Rent. Concurrently with its execution of this Amendment, Tenant shall deliver to Landlord a clean, unconditional, irrevocable, transferable standby letter of credit (the "Letter of Credit"), naming Landlord as beneficiary, in the form of Attachment B to this Amendment, and issued by a financial institution, satisfactory to Landlord. The amount available to be drawn under the Letter of Credit shall be One Million One Hundred Ninety-Nine Thousand Two Hundred and Fifty Dollars ($1,199,250.00). Provided that Tenant has delivered the Letter of Credit to Landlord, Landlord shall return to Tenant, within five (5) days after the execution of this Amendment, the full amount of the Prepaid Rent, as defined in Section I.H of the Basic Lease Information.
- Landlord shall hold the Letter of Credit in support of Tenant's obligations under the Lease, including damages that may accrue after a termination of the Lease under California Civil Code Section 1951.2. Tenant expressly waives the provisions of California Civil Code Section 1950.7 with respect to the Letter of Credit. Landlord shall be entitled to draw any portion or the entire amount under the Letter of Credit upon notice that the Letter of Credit will not be renewed or will be terminated or upon default by Tenant, provided that Landlord shall not be obligated to give Tenant notice or opportunity to cure prior to drawing on the Letter of Credit. Landlord may apply such amounts drawn to satisfy Tenant's obligations under the Lease (in such order as Landlord may elect). The Letter of Credit shall provide for partial draws by Landlord. To the extent the Letter of Credit or the amounts drawn thereunder have not been previously applied against Tenant's other obligations under the Lease, Landlord shall be entitled to make draws from the Letter of Credit and apply it against the Base Rent as it comes due, provided, however, that if Tenant pays all such Base Rent in cash at or before the time such Base Rent comes due, Landlord shall return the Letter of Credit (including any unapplied amounts drawn against the Letter of Credit by Landlord) to Tenant, together with such instructions and documentation as the issuer of the Letter of Credit may require to cancel the same, within five (5) days after the first date on which Landlord has received payments of Base Rent from Tenant (exclusive of any Base Rent paid during the period described in Paragraph 4) in the aggregate amount of at least One Million One Hundred Ninety-Nine Thousand Two Hundred and Fifty Dollars ($1,199,250.00).
- Tenant shall not assign or encumber or attempt to assign or encumber the Letter of Credit and neither Landlord nor its successors or assigns shall be bound by any such assignment or encumbrance or attempted assignment or encumbrance.
- In the event of a financing, sale or other transfer of the Building, Tenant, if requested by Landlord in writing, at its sole cost and expense within ten (10) Business Days after receiving such request, will cause the issuing bank of the Letter of Credit to consent to the assignment or to issue a substitute letter of credit on identical terms to the Letter of Credit, other than the stated beneficiary, from the same issuing bank or, if the lender or transferee so requests, from another bank acceptable to such lender or transferee in its reasonable discretion, naming such lender or transferee as the beneficiary thereof, upon delivery by Landlord of the then outstanding Letter of Credit.
- Entire Agreement . All attachments, exhibits and addenda attached hereto are incorporated into this Amendment. This Amendment, together with the Original Lease, contains the entire agreement of the parties hereto with respect to the subject matter hereof and may not be changed or terminated orally or by course of conduct.
- Counterparts . This Amendment may be executed in counterparts, each of which shall be deemed an original as against the party whose signature is affixed thereto, and all of which together shall constitute but one and the same agreement.
- Reaffirmation of Lease . Except as specifically set forth in this Amendment, the Original Lease remains unchanged and, as modified by this Amendment, is in full force and effect. This Amendment shall be binding upon and inure to the benefit to the parties and their respective successors and assigns. All references in the Original Lease to "this Lease" shall mean the Original Lease as amended by this Amendment.
- Landlord and Tenant are parties to that certain Office Lease Agreement, dated as of September, 2000 (the "Original Lease"), as modified by that certain letter agreement dated March 8, 2001, and First Amendment to Office Lease Agreement dated December 21, 2001 (the "First Amendment"). (The Original Lease as so modified is called the "Existing Lease"). Pursuant to the Original Lease, Landlord has agreed to construct the Project and Tenant has agreed to lease from Landlord all of the rentable square feet of office space in the Project. The Project is expected to consist of the following in San Mateo, California: an office building ("Building 1") located at 900 Concar Drive containing approximately 116,592 rentable square feet, an office building ("Building 2") located at 800 Concar Drive, containing approximately 100,526 rentable square feet, a retail building of approximately 2,200 rentable square feet that will be for retail use for another tenant(s), and a parking garage. The foregoing shall not limit or modify the provisions of Section II of the Lease providing for remeasurement of the Premises and Buildings upon completion of the Building Shells. Capitalized terms not defined in this Amendment shall have the meanings given them in the Existing Lease. As used in this Amendment, "Lease" shall mean the Existing Lease, as amended by this Amendment.
- Tenant and Landlord wish to amend the Lease, inter alia, (i) to provide that Tenant and not Landlord shall be obligated to construct the Tenant Improvements, (ii) to change the definition of Landlord Work to be performed by Landlord and the completion dates for Landlord Work, (iii) to eliminate the Tenant Improvement Allowance, (iv) to reduce Base Rent, and (v) to provide certain other changes to the Existing Lease, all on the following terms and conditions:
IN WITNESS WHEREOF
, Landlord and Tenant have entered into and executed this Amendment as of the Effective Date.| LANDLORD: WEO - CONCAR, LLC,
By: /s/ Thomas P. Sullivan | TENANT: SIEBEL SYSTEMS, INC.,
By: /s/ Jeffrey T. Amann |
ATTACHMENT A
BUILDING SHELL CHANGES
[SEE ATTACHED]
| Exhibit A to Second Amendment to Office Lease Agreement |
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| Log | Required | ||||||||
| Number | Date | Description | Comments | Costs | Subcontractor | Removable | |||
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| 61 | 04/03/01 | additional parking drains | Due to the daycare play yard intruding into the parking lot, additional parking drains will be required on the garage deck. | $20,000 | Therma | yes | |||
| 64 | 04/03/01 | outdoor drinking fountain | New outdoor drinking fountains are planned within the daycare play yard. Includes stub to fountain location. Fountains to be TI. | $3,500 | Therma | yes | |||
| 65 | 04/03/01 | outdoor hose bib | New outdoor hose bib is planned within the daycare play yard. Includes piping and fixture. | $1,500 | Therma | Yes | |||
| 67 | 04/03/01 | play equipment bolting | The daycare play equipment will require structural embeds within the parking slab to accommodate their support. | $5,000 | Webcor/Romek | yes | |||
| 82a | 05/04/01 | revised daycare play area | The structural review of the daycare play area, required an additional 15 psf load be added. Cost of Design/Build structural fee | $2,000 | Nishkian/Dean | No | |||
| 83 | 05/04/01 | revised daycare play area | The structural review of the daycare play area, required additional slab reinforcing to meet the governing code requirements. | $6,500 | Webcor Concrete | No | |||
| 84 | 05/04/01 | revised daycare play area | The structural review of the daycare play area required 6 additional piles to be added to accommodate the updated loads. Includes $850 contingency for obstructions. | $7,246 | Foundation Constructors/ Webcor | No | |||
| 85 | 05/04/01 | revised daycare play area | The structural review of the daycare play area shows there is an additional load impact to the respective precast concrete beams. | $7,600 | Confab | No | |||
| 87 | 05/04/01 | generator enclosure | The new below grade Siebel emergency generator vault requires the addition of 6 concrete piles for the foundation support. Includes $850 for obstructions. | $7,246 | Foundation Constructors/ Webcor | No | |||
| 88a | 05/04/01 | enclosure slab & wp | The new below grade Siebel emergency generator vault requires adding approximately 1008 square feet of 1.25' thick slab on grade. Includes $12,287 conc. Plus $3,686 rebar. | $15,973 | Webcor Concrete Regional Steel | No | |||
| 88b | 05/04/01 | enclosure walls & wp | The new below grade Siebel emergency generator vault requires adding 92 linear feet of 10" thick cast in place wall or cmu. Includes $54,791 conc. Plus $16,000 rebar. | $70,791 | Webcor Concrete Regional Steel | No | |||
| 88c | 05/04/01 | enclosure shore & excavate | The new below grade Siebel emergency generator vault requires shoring in order to be built adjacent to the planned Building 1. Includes $1,500 for piling cutoff (Webcor). | $40,000 | Foundation Constructors/ Webcor | No | |||
| 88d | 05/04/01 | enclosure spoils dispose | The new below grade Siebel emergency generator vault requires off haul of soils (clean). 439 cy at $22.50/cy. | $9,878 | Peak | No | |||
| 89 | 05/04/01 | generator enclosure | The new below grade Siebel emergency generator vault requires the addition of (6) W12 x 26 x 20' galvanized beams | $33,266 | Romek | No | |||
| 90a | 05/04/01 | generator enclosure | The new below grade Siebel emergency generator vault requires an additional 1,200 square feet of 1 1/2" galvanized bar grating. | incl. Above | Romek | No | |||
| 90b |
| added exterior galv door | The modified enclosure for the enlarged transformer required an additional exterior galvanized door which was not necessary before. | $2,500 | Romek | No | |||
| 41 | 03/13/01 | enlarge trash enclosure | Based on the revised Siebel demands, namely the cafeteria, the trash enclosure was required to be enlarged and the access point revised. | $10,000 | Webcor Concrete | No | |||
| 97 | 05/30/01 | revised access to loading dock | The current kitchen layout requires exterior service access. Add door 1112B. | $3,500 | Architectural Glass | No | |||
| 5 | 11/29/00 | re-size electrical room | The Siebel upgraded electrical requirements required the electrical rooms to be re-sized for both buildings 1 and 2. Cost for Design/Build fee. | $2,000 | Schwartz & Lindheim | No | |||
| 13 | 01/11/01 | increase main switch boards | S&L bid draft tabulation estimate of additional cost for the Siebel requested increase to the main switchboards. | $38,716 | Schwartz & Lindheim | No | |||
| 14 | 01/11/01 | telecom interconnect conduits | S&L bid draft tabulation estimate of additional cost for the Siebel requested increase to the telecom interconnect conduits. Includes trench $4250 (Webcor) | $48,252 | Schwartz & Lindheim Webcor | No | |||
| 15 | 01/11/01 | telecom conduits from prop line | S&L bid draft tabulation estimate of additional cost for the Siebel requested increase to the telecom conduits to the property line. Includes trench $4250 (Webcor) | $30,399 | Schwartz & Lindheim Webcor | No | |||
| 3 | 11/29/00 | cafe´ duct shaft | Cafe´ duct shaft, penetrations only. Two shfts, 8'-3" X 6'-6" and 3'-0" X 4'-0". Duct to be TI. | $7,500 | Gale Steel | Yes | |||
| 35 | 03/07/01 | revise the height of penthouse | Penthouse screen height increased by 1'-0" to screen increased height of cooling tower mandated by Siebel requirements. Previous height set by elevator penthouse. $22 sf X 773 sf | $17,006 | Metal panel subcontractor TBD | No | |||
| 45 | 03/22/01 | enlarged penthouse footprint | The Siebel requested changes to mechanical system necessitate a larger penthouse footprint. Increase of 1500 sf per penthouse at $12/sf. | $36,000 | Gale, Webcor | No | |||
| 78 | 05/04/01 | vent the washer/dryer | The Siebel fitness area on the second floor of Building 1 will require a vent for washer/dryer. Cost is for penetrations. Vent and duct to be TI. | $1,000 | Webcor | Yes | |||
| 94 | 05/17/01 | boiler and water heater on roof | Structural reinforcement for increased water heater on in rooftop penthouse. | $7,500 | Webcor | No | |||
| 96 | 05/17/01 | grease exhaust in penthouse | The Siebel cafe´ on the ground floor of Building 1 will require a grease exhaust whose costs will be divided between core and shell and TI. | TI |
| Yes | |||
| 80 | 05/04/01 | lab loading of 5,300 lbs. | The Siebel planned lab rooms will require a loading of 5,300 pounds which will have to be specifically accommodated in the overall structure. | $10,600 | Gale | No | |||
| 26 | 02/21/01 | cafe´ access to exterior | The Siebel cafe´ requires addition of exterior door #1109A. | $5,500 | Architectural Glass | Yes | |||
| 56 | 04/01/01 | cafe´ grease interceptor | The cafe´ on the ground floor of Building 1 will require a grease interceptor. Cost includes drain line below slab stubbed to location near future grease interceptor. | $7,000 | Therma, MJB | Yes | |||
| 47 | 04/01/01 | revise exiting layout- daycare | The Siebel childcare on the ground floor of Building 2 requires addition of exterior door #2107A. | $3,500 | Architectural Glass | Yes | |||
| 49 | 04/01/01 | bathroom reconfiguration | The Siebel childcare on the ground floor of Building 2 requires substantial addition of plumbing for additional and reconfigured toilets. Cost for waste upgrades and trenching ($7,800). | $32,661 | Therma, Webcor | No | |||
| 91 | 05/09/01 | security hardware | Siebel security design requires empty conduit in ground floor slab. | $3,000 | Schwartz & Lindheim | No | |||
| 100 |
| bldg 1 plumbing upgrades | Due to space constraints and the larger Siebel design load from childcare and fitness. Cost for upgrades to plumbing and hot water system. (portion of item formerly labeled "Therma 1") | $30,480 | Therma | Yes | |||
| 101 |
| bldg 2 plumbing upgrades | Due to space constraints and the larger Siebel design load from cafe´. Cost for upgrades to plumbing and hot water system. (Portion of item formerly labeled "Therma 1") | $32,619 | Therma | Yes | |||
| 102 |
| booster pump upgrade | Due to the larger Siebel design load from the daycare and cafe´ an upgrade was necessary for the overall size and configuration of the booster pump. | $15,465 | Therma | No | |||
| 103 |
| bldg 1 waste upgrades | Cafe´ in bldg 1 requires substantial upgrade to waste piping in slab. Cost for waste upgrades and trenching | $118,799 | Therma | No | |||
| 104 |
| upgrade cooling tower | Cooling tower upgrade due to increased loads. Both buildings. | $35,200 | CMI | No | |||
| 105 |
| relocate fire pump room in building 2 | Childcare requirements forced relocation of fire pump room. Cost includes 140 ln ft 6" piping plus design/build engineering ($2,240). Design change reduced prior cost. | $5,940 | Golden Bear | No | |||
| 106 |
| electrical service to domestic booster pumps. | electrical service to domestic water booster pumps. | $11,596 | Schwartz & Lindheim | No | |||
| 107 |
| sprinkler increase in bldg 2, rooms 102/109. | Siebel-related revisions increase sprinkler head density. | $1,050 | Golden Bear | No | |||
| 108 |
| penthouse equipment revisions | Design/build fees for Siebel mandated changes in mechanical equipment layout in penthouses. | $5,000 | Schwartz & Lindheim | No | |||
| 109 |
| penthouse ventilation | add sidewall draft fans to penthouses to provide for ventilation to domestic water boilers. | $6,400 | CMI | No | |||
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| Subtotal of Line Items | $759,683 | ||||||||
| General contractor fee, liability ins. And subguard bond (4.38%) | $33,274 | ||||||||
| General contractor allocation of general conditions (4%) | $30,387 | ||||||||
| Developer project management fee (5%) | $37,984 | ||||||||
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| Total | $861,329 | ||||||||
ATTCHEMENT B
FORM LETTER OF CREDIT
[SEE ATTACHED]
Date: _________________
IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER: _______________
BENEFICIARY:
WEO-CONCAR, LLC, a California Limited liability company
199 First Street
San Francisco, CA 94105
Attn: Robert A. Paratte
APPLICANT:
Siebel Systems, Inc.
2207 Bridgepointe Parkway
San Mateo, CA 94404
AMOUNT: US$ 1,199,250.00
Currency: USD
Not exceeding One Million One Hundred Ninety Nine
Thousand Two Hundred and Fifty Dollars and no cent.
EXPIRATION: November 16, 2002
AT OUR COUNTERS
We hereby issue our irrevocable standby letter of credit ("Letter of Credit") in your favor, for the account of Siebel Systems, Inc., a Delaware corporation ("Siebel"), in the amount of One Million One Hundred Ninety Nine Thousand Two Hundred and Fifty Dollars and no cent. This letter of credit is available by sight payment with ourselves only against presentation to us at 333 South Beaudry Avenue, 19th Floor, Mail Code CA9-703-19-23, Los Angeles, California 90017 Attention: Standby Letter of Credit Department of the following documentations:
Your sight draft drawn on us marked: "Drawn Under Bank of America N.A., Irrevocable Standby Letter of Credit No. ______________, Dated __________ _____, _______."
"IT IS A CONDITION OF THIS LETTER OF CREDIT THAT IT IS DEEMED TO BE AUTOMATICALLY EXTENDED WITHOUT AMENDMENT FOR ONE YEAR FROM THE EXPIRY DATE HEREOF, OR ANY FUTURE EXPIRATION DATE, UNLESS AT LEAST 30 DAYS PRIOR TO ANY EXPIRATION DATE WE NOTIFY YOU BY REGISTERED MAIL OR OVERNIGHT COURIER SERVICE AT THE ABOVE ADDRESS THAT WE ELECT NOT TO CONSIDER THIS LETTER OF CREDIT RENEWED FOR ANY SUCH ADDITIONAL PERIOD."
Multiple drawings are permitted. This letter of credit is transferable. Transfer of this letter of credit is subject to our receipt of beneficiary's instruction in the form attached hereto as Exhibit A accompanied by the original letter of credit and amendment(s), if any. Costs or expenses of such transfer shall be for the account of the Applicant.
We hereby agree with you that drafts drawn under and in compliance with the terms of this Letter of Credit will be duly honored upon presentation.
This Letter of Credit is subject to the International Standby Practices 1998, ICC Publication No. 590.
________________________
Justin R. Dooley
Vice President, Finance and Operations
________________________
Kenneth A. Goldman
Senior Vice President and Chief Financial Officer
EXHIBIT A
REQUEST FOR ENTIRE ABSOLUTE AND IRREVOCABLE TRANSFER OF
LETTER OF CREDIT WITHOUT SUBSTITUTION OF INVOICES
| _________________________________ |
| _________________________, 20_______ |
| _________________________________ |
| Letter of Credit No.____________________ |
| _________________________________ |
| Issued By ________________________ |
TO: Bank of America, N.A.
We request you to transfer all of our rights as beneficiary under the Letter of Credit referenced above to the new beneficiary named below:
_________________________________________________________
NAME OF NEW BENEFICIARY
_________________________________________________________
ADDRESS
By this transfer, all our rights as the original beneficiary, including all rights to make drawings under the Letter of Credit, go to the new beneficiary. The new beneficiary shall have sole rights as beneficiary, whether existing now or in the future, including sole rights to agree to any amendments, including increases or extensions or other changes. All amendments will be sent directly to the new beneficiary without the necessity of consent by or notice to us.
We enclose the original letter of credit and any amendments. Please indicate your acceptance of our request for the transfer by endorsing the letter of credit and send it to the new beneficiary with your customary notice of transfer.
The Applicant is responsible for the transfer fee.
| The signature and title at the right conform with |
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_______________________________________________ _______________________________________________ |
SECOND AMENDMENT TO OFFICE LEASE AGREEMENT
THIS SECOND AMENDMENT TO OFFICE LEASE AGREEMENT (this "Amendment") is executed as of September 25, 2002, by and between WEO - CONCAR, LLC, a California limited liability company, formerly known as Office Opportunity Associates, LLC, a California limited liability company ("Landlord"), and SIEBEL SYSTEMS, INC., a Delaware corporation ("Tenant").
Recitals
NOW THEREFORE
, in consideration of, and incorporating, the foregoing recitals and the mutual agreements of the parties herein, Landlord and Tenant hereby agree as follows:- Elimination of Tenant Improvement Allowance. The Tenant Improvement Allowance is changed to zero dollars ($0.00).
- Modification of Landlord Work. The term "Landlord Work" shall be changed to mean the development, design and construction of the Project and Building Shell, but not the Tenant Improvements. The Building Shell shall substantially conform with the specifications described in Paragraph A of Exhibit D-2 of the Lease except as follows: (i) that portion of Item 3.4 thereof described as "perimeter walls taped and sanded, ready for tenant finish" (the "Perimeter Tape Work") is hereby eliminated, (ii) the ground floor of Building 1 (but not of Building 2) will include one men's and women's restroom as described in Item 3.1 of Paragraph A of Exhibit D-2 (the "Building 1 Restroom"), and (iii) the Building Shell Changes will be incorporated into the Building Shell. Landlord shall Substantially Complete the Landlord Work no later than December 31, 2002, except to the extent that any delay in such Substantial Completion is a result of a Tenant Delay. As provided in the second paragraph of Section III.A of the Lease, Landlord Work shall be deemed to be "Substantially Complete" on the date that all Landlord Work has been substantially performed, other than any details of construction, mechanical adjustment or any other similar matter, the non-completion of which does not materially interfere with Tenant's use of the Premises as certified by Landlord's architect and approved by Tenant (such approval not to be unreasonably withheld, conditioned or delayed). Notwithstanding the above, Landlord Work may be deemed Substantially Complete even if Landlord has not installed the wood paneling in the Buildings' lobbies. Landlord shall install such paneling as soon as commercially reasonable, subject to Tenant Delay and Force Majeure. In the event that installation of such paneling has not been completed by December 31, 2002, then Landlord shall endeavor to perform any such installation work during 2003 that occurs after Tenant commences conducting its business operations within the Buildings during non-business hours. If Landlord has not Substantially Completed all of the Landlord Work (other than the lobby paneling) on or before December 31, 2002, neither Landlord nor its representatives shall be liable to Tenant for any damage resulting from the delay in completing such construction obligations and the Lease shall remain in full force and effect; provided however that if the Commencement Date has not occurred or been deemed to have occurred by December 1, 2003, then (i) if the same is not due to a Tenant Delay, Tenant, by written notice to Landlord given within ten (10) days after the expiration of such period, may terminate this Lease without any liability to Landlord and (ii) and if the same is not due to a delay caused by Landlord, then Landlord, by written notice to Tenant given within ten (10) days after the expiration of such period, may terminate this Lease without liability to Tenant. Notwithstanding the foregoing, Tenant shall have no right to terminate this Lease if and to the extent such delay in Substantial Completion of the Landlord Work is caused by a Tenant Delay.
- Reimbursement for Tenant's Shell Costs, Design Costs and Landlord's Overhead . No later than January 10, 2003, Tenant shall reimburse Landlord for the aggregate amount of (i) Design Costs, design and architectural costs for the Tenant Improvements and permitting fees for the Building Shell Changes ("Accrued Design Costs") incurred through December 31, 2002 and (ii) Tenant's Shell Costs and Landlord's Overhead. A schedule of said amounts as of the date of this Amendment is attached to this Amendment as Exhibit A.
- Payment of the Cost of the Work. Tenant shall be solely responsible for paying the entire Cost of the Work, as defined in the Construction Rider to the Lease, and shall reimburse Landlord promptly on demand any Cost of the Work which Landlord incurs after the date of this Amendment; provided that with respect to any third party costs, Tenant has approved such costs or the scope of the work, which approval shall not be unreasonably withheld, conditioned or delayed. Tenant shall not be required to deposit any shortfall with Landlord, as described in Section 2.3 of the Construction Rider.
- Commencement Date. The parties agree that the Commencement Date shall be January 1, 2003, regardless of whether Tenant has then completed its Tenant Improvements. The Commencement Date shall be delayed only to the extent that Tenant can reasonably demonstrate that Landlord's failure to substantially complete Landlord Work, Landlord's failure to approve or disapprove plans within the time frames set forth herein, or any other failure by Landlord to perform its obligations herein or under the Lease causes a delay in Tenant's completion of its Tenant Improvements ("Landlord Delay"). Tenant shall provide Landlord with written notice of any act or omission which Tenant alleges is a Landlord Delay, and such act or omission shall not be deemed to have caused a Landlord Delay if cured within ten (10) days after such notice. Neither the delivery of such notice, nor Landlord's election to cure or not cure the alleged Landlord Delay, shall be deemed an admission by Landlord of a Landlord Delay. Notwithstanding any such delay in the Commencement Date, the length of the Term shall be as set forth in the Original Lease.
- Base Rent. The Base Rent set forth in Section I.D of the Lease is hereby amended and restated as follows:
- Requirement for Tenant Improvement Build-Out. Tenant will no longer be required to use Landlord to construct the Tenant Improvements, and Landlord will no longer be obligated to construct the Tenant Improvements. Tenant shall engage Venture Builders to construct the Tenant Improvements. The Tenant Improvements shall be deemed Alterations under Section IX(C) of the Lease, except that Landlord shall not charge a 5% fee for Landlord's oversight and coordination in connection with the initial Tenant Improvements and no additional security shall be required. The parties acknowledge that Landlord has approved Tenant's Space Plans as set forth in the letter dated January 4, 2002. No later than September 27, 2002, Tenant shall submit to Landlord for its approval the Construction Documents and the Final Construction Documents for the Tenant Improvements as described in Section 2.1.1 of the Construction Rider, and Landlord will have 10 business days after receipt of the Construction Documents and 10 business days after receipt of the Final Construction Documents to give or withhold its approval to such submission in accordance with Section 2.1.1. Tenant shall also submit to Landlord, for its approval, any changes to the Final Construction Documents. Upon execution of this Amendment, Landlord shall permit entry onto the Project by Tenant and its contractors to construct the Tenant Improvements, subject to the conditions and covenants set forth in the letter dated September 19, 2002, a copy of which is attached to this Amendment and incorporated by reference herein. All such entries shall also be subject to the terms of the Lease, other than the payment of Rent which shall commence on the Commencement Date as set forth herein. The parties acknowledge that Landlord may be performing some Landlord Work while Tenant is constructing its Tenant Improvements, and each party agrees to cooperate reasonably with the other party so as not to hinder or interfere with the work of the other party. Tenant shall complete its Tenant Improvements on floors 2 through 5 of Building 1 and floors 3 through 5 of Building 2, and portions of the first floors of both Buildings no later than March 31, 2003. Tenant is anticipating completing the Tenant Improvements for the remainder of the Premises by December 31, 2003.
- No Tenant or Landlord Delay . The parties hereto agree that, due to the provisions of this Amendment that eliminate Tenant Improvements from Landlord Work, as of the date of this Amendment neither Tenant nor its agents, employees, vendors or contractors has taken any action or failed to take any action (including the failure to act or deliver in accordance with the schedule set forth on Exhibit D-3 of the Lease) which has caused a Tenant Delay. Further, the parties agree that the negotiation of the terms and conditions of this Amendment, and Landlord's completion of Landlord Work, as modified herein, within the time period described herein, shall not be deemed to have caused a Landlord Delay in Tenant's completion of the construction of its Tenant Improvements.
- Construction Rider. The following Sections of Exhibit D to the Original Lease ("Construction Rider") are hereby deleted: 2.1.5, 2.2 (but not 2.2.1), 2.3, 2.5, 3, 4, 8 and 9.
- No Further Modifications. The parties hereto agree that (i) the Lease is in full force and effect without default by either party, (ii) except as expressly modified hereby, the terms of the Existing Lease are in full force and effect, (iii) to the extent the terms and provisions of this Amendment expressly conflict with the terms and provisions of the Existing Lease, the terms and provisions of this Amendment will govern.
- Counterparts/Successors and Assigns . This Amendment may be executed in counterparts, each of which shall be deemed an original as against the party whose signature is affixed thereto, and all of which together shall constitute but one and the same agreement. This Amendment shall be binding upon and inure to the benefit of the parties and their respective successors and assigns.
D. "Base Rent"
| Months 1 - 12 |
| $5.63 per rentable square foot per month |
| LANDLORD: WEO - CONCAR, LLC, By: Wilson/Equity Office, LLC By: Wilson Investors-California, LLC By: /s/ Thomas P. Sullivan | TENANT: SIEBEL SYSTEMS, INC., By: /s/ Craig Stevens
By: |
EXHIBIT A
Costs to be Reimbursed by Tenant
| Tenant's Shell Costs under Amendment 1 | $ 823,344 |
| Landlord's Overhead under Amendment 1 | 37,984 |
| Accrued Design Costs through 9/25/02 | 222,596 |
| Credit for Perimeter Tape Work | <73,289> |
| Bathroom on Ground Floor | 50,000 |
| Conduit from Emergency Generator | 49,451 |
| Total as of date of Amendment 2: | $1,110,086 |
September 19, 2002
Ms. Linda Jansen
Vice President, Real Estate and Facilities
Siebel Systems, Inc.
2207 Bridgepoint Parkway
San Mateo. CA 94404
Siebel Systems, Inc.
Attn: General Counsel
2207 Bridgepoint Parkway
San Mateo, CA 94404
Re: Concar - Office Lease Agreement, dated as of September 2000 by and between WEO CONCAR, LLC, a California limited liability company, formerly known as Office Opportunity Associates, LLC, a California limited liability company ("Landlord"), and SIEBEL SYSTEMS, INC., a Delaware corporation ("Tenant"), as modified by that certain letter agreement dated March 8, 2001, and First Amendment to Office Lease Agreement dated December 21, 2001 (such lease with all such amendments, the "Lease")
Ladies and Gentlemen:
This letter concerns your commencement of construction of tenant improvements in the Buildings 1 and 2 at the Concar project in San Mateo. (All capitalized terms used in this letter will have the meanings given in the Lease.)
We were very pleased to learn recently you reversed your plans to leave the Buildings unoccupied for the time being, and now want to complete your tenant improvements and move in as quickly as possible. We have been working very hard with you and the City to help you achieve this goal, and we certainly intend to continue cooperating in this effort as much as we can. As I am sure you understand there are certain details that need to be attended to prior to your continuation of the tenant improvement construction so as not to expose the Landlord or Tenant to undue risks, liabilities or other problems.
As of last week, Venture Builders has instructed their subcontractors to cease work until Landlord has formally released them to proceed. Landlord is prepared to do so in accordance with the current tenant improvement schedule. However, we ask that you acknowledge your agreement to abide by the terms of this letter and the Lease and by the following terms by signing the enclosed copy of this letter and returning it to Landlord:
1. You are the party contracting for and responsible for supervising, managing and paying for all tenant improvement work being performed by Venture Builders and its subcontractors.
2. You indemnify us and hold us harmless from and against any and all loss, cost, damage, expense or liability, including reasonable attorneys' fees and costs related to or arising out of the prior or future construction of the tenant improvements, including, without limitation, any liens resulting from your work and any delay in completion of our work directly or indirectly caused by your or your contractors', representatives' or agents' construction or other activities at the Premises.
We hope that these matters can be resolved quickly, so that you can finish your work and commence occupancy of the Premises as soon as possible.
Thank you for your cooperation.
Very truly yours,
WEO CONCAR. LLC.
, a California limited liability companyBy: Wilson/Equity Office, LLC, a Delaware limited liability company
its Manager
By: Wilson Investors-California, LLC, a Delaware limited liability company
its Manager
By: /s/ Thomas P. Sullivan
Thomas P. Sullivan, Manager
The undersigned acknowledges and agrees to the terms and provisions of this letter.
SIEBEL SYSTEMS, INC.
By: /s/ Linda S. Jansen
Name: Linda S. Jansen
Title: Vice President Facilities and Real Estate
Date: 9/26/02
cc: Bob Winter, EOP
Susan Sagy, EOP
Jeff Arnold, EOP
Mike Sanford, EOP
Jacqueline Moore
Jon Knorpp
Genelle Osendorf
Ken Morrison, The Rockridge Group
