<PAGE> 1
================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the Quarter Ended
September 30, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
Commission File Number 333-82907
Calico Commerce, Inc.
---------------------
(Exact name of registrant as specified in its charter)
Delaware 77-0373344
-------- ------------
(State of other jurisdiction of (I.R.S Employer
incorporation or organization) Identification Number)
333 West San Carlos, San Jose, California 95110
- ----------------------------------------- -----
(Address of principal executive offices) (Zip Code)
(408) 975-7400
--------------
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days
(1) Yes [X] No [ ]
(2) Yes [X] No [ ]
As of October 31, 1999 there were 33,685,585 shares of the Registrant's
Common Stock outstanding.
================================================================================
<PAGE> 2
CALICO COMMERCE, INC. AND SUBSIDIARIES
FORM 10-Q
QUARTER ENDED SEPTEMBER 30, 1999
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page No.
--------
<S> <C>
PART I FINANCIAL INFORMATION
Item 1. Financial Statements
Condensed Consolidated Balance Sheet -
September 30, 1999 and March 31, 1999 3
Condensed Consolidated Statement of Operations - Three and
six months ended September 30, 1999 and 1998 4
Condensed Consolidated Statement of Cash Flows -
Six months ended September 30, 1999 and 1998 5
Notes to Condensed Consolidated Financial Statements 6
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations 9
Item 3. Quantitative and Qualitative Disclosures about Market Risk 24
PART II OTHER INFORMATION
Item 1. Legal Proceedings 25
Item 2. Changes in Securities and Use of Proceeds 25
Item 3. Defaults upon Senior Securities 25
Item 4. Submission of Matters to a Vote of Security Holders 25
Item 5. Other Information 26
Item 6. Exhibits and Reports on Form 8-K 26
SIGNATURE 27
</TABLE>
2
<PAGE> 3
CALICO COMMERCE, INC.
CONDENSED CONSOLIDATED BALANCE SHEET
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(unaudited)
<TABLE>
<CAPTION>
SEPTEMBER 30, MARCH 31,
------------- ---------
1999 1999
-------- ---------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents .................... $ 5,366 $ 15,441
Accounts receivable, net ..................... 7,751 7,443
Other current assets ......................... 2,506 1,417
-------- --------
Total current assets ...................... 15,623 24,301
Property and equipment, net .................... 3,763 2,532
Intangible and other assets, net ............... 3,654 4,535
-------- --------
$ 23,040 $ 31,368
======== ========
LIABILITIES, MANDATORILY REDEEMABLE
CONVERTIBLE PREFERRED STOCK AND
STOCKHOLDERS' DEFICIT
Current liabilities:
Accounts payable ............................. $ 2,867 $ 1,728
Accrued liabilities .......................... 6,731 5,448
Deferred revenue ............................. 4,867 6,054
Current portion of notes payable ............. 952 628
Current portion of capital lease
obligations ............................... 207 256
-------- --------
Total current liabilities ................. 15,624 14,114
Notes payable, non-current ..................... 1,065 700
Capital lease obligations, non-current ......... 98 177
Other liabilities .............................. 468 622
-------- --------
17,255 15,613
-------- --------
Mandatorily Redeemable Convertible Preferred
Stock ........................................ 32,551 32,535
-------- --------
Commitments and contingencies (Note 10)
Stockholders' deficit:
Preferred Stock; $0.001 par value; 15,000
shares authorized; no shares issued and
outstanding actual ........................ -- --
Common Stock; $0.001 par value; 150,000
shares authorized; 11,588 and 11,436
shares issued and outstanding ............. 12 11
Additional paid-in capital ................... 18,347 17,877
Notes receivable from stockholders ........... (2,414) (2,211)
Unearned compensation ........................ (1,846) (2,779)
Accumulated deficit .......................... (40,865) (29,678)
-------- --------
Total stockholders' deficit ............... (26,766) (16,780)
======== ========
$ 23,040 $ 31,368
======== ========
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
financial statements.
3
<PAGE> 4
CALICO COMMERCE, INC.
CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
(unaudited)
<TABLE>
<CAPTION>
THREE MONTHS SIX MONTHS
ENDED SEPTEMBER 30, ENDED SEPTEMBER 30,
--------------------- ---------------------
1999 1998 1999 1998
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Net revenue:
License ............................ $ 3,502 $ 2,657 $ 6,959 $ 5,589
Services ........................... 4,674 2,628 8,650 4,349
-------- -------- -------- --------
Total net revenue ............... 8,176 5,285 15,609 9,938
-------- -------- -------- --------
Cost of net revenue:
License ............................ 236 265 373 366
Services ........................... 3,473 1,742 6,133 3,109
-------- -------- -------- --------
Total cost of net revenue ....... 3,709 2,007 6,506 3,475
-------- -------- -------- --------
Gross profit ......................... 4,467 3,278 9,103 6,463
-------- -------- -------- --------
Operating expenses:
Sales and marketing ................ 4,641 3,066 9,199 5,824
Research and development ........... 3,801 1,232 6,467 2,204
General and administrative ......... 1,900 1,459 3,352 2,100
Stock compensation ................. 420 469 934 893
Acquired in-process research and
development ..................... -- 1,840 -- 1,840
Amortization of goodwill ........... 236 78 476 78
-------- -------- -------- --------
Total operating expenses ........ 10,998 8,144 20,428 12,939
-------- -------- -------- --------
Loss from operations ................. (6,531) (4,866) (11,325) (6,476)
Interest and other income, net ....... 66 (46) 137 (81)
-------- -------- -------- --------
Net loss ............................. $ (6,465) $ (4,912) $(11,188) $ (6,557)
======== ======== ======== ========
Net loss per share:
Basic and diluted .................. $ (0.69) $ (0.75) $ (1.21) $ (1.04)
======== ======== ======== ========
Weighted average shares ............ 9,354 6,565 9,184 6,303
======== ======== ======== ========
Pro forma net loss per share:
Basic and diluted .................. $ (0.26) $ (0.25) $ (0.45) $ (0.35)
======== ======== ======== ========
Weighted average shares ............ 24,982 19,704 24,811 18,636
======== ======== ======== ========
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
financial statements.
4
<PAGE> 5
CALICO COMMERCE, INC.
CONSOLIDATED STATEMENT OF CASH FLOWS
(IN THOUSANDS)
(unaudited)
<TABLE>
<CAPTION>
SIX MONTHS
ENDED SEPTEMBER 30,
-----------------------
1999 1998
-------- --------
<S> <C> <C>
Cash flows from operating activities:
Net loss ............................................................ $(11,188) $ (6,557)
Adjustments to reconcile net loss to net cash used in
operating activities:
Provision for doubtful accounts ................................... 450 74
Provision for sales returns ....................................... 329 150
Depreciation, amortization and other .............................. 1,682 591
Stock compensation and other ...................................... 1,016 893
Loss on disposal of assets ........................................ 36 260
Acquired in-process research and development ...................... -- 1,840
Changes in assets and liabilities, net of acquisition:
Accounts receivable ............................................. (1,087) (1,423)
Other current assets ............................................ (1,089) (118)
Accounts payable ................................................ 1,139 675
Accrued liabilities ............................................. 1,283 342
Deferred revenue ................................................ (1,187) 1,142
Other liabilities ............................................... (60) 101
-------- --------
Net cash used in operating activities ......................... (8,676) (2,030)
-------- --------
Cash flows from investing activities:
Purchases of property and equipment ................................. (2,162) (571)
-------- --------
Net cash used in investing activities ......................... (2,162) (571)
-------- --------
Cash flows from financing activities:
Proceeds from issuance of Common Stock .............................. 186 80
Common stock repurchases ............................................ -- (482)
Proceeds from repayments of stockholder loans ....................... -- 41
Net proceeds from issuance of preferred stock ....................... 16 10,925
Proceeds from issuance of notes payable ............................. 1,000 413
Repayments of notes payable ......................................... (311) (169)
Principal payments under capital lease obligations .................. (128) (61)
-------- --------
Net cash provided by financing activities ..................... 763 10,747
-------- --------
Net increase (decrease) in cash and cash equivalents .................. (10,075) 8,146
Cash and cash equivalents at beginning of period ...................... 15,441 2,514
-------- --------
Cash and cash equivalents at end of period ............................ $ 5,366 $ 10,660
======== ========
Supplemental cash flow disclosures:
Cash paid for interest .............................................. $ 88 $ 97
======== ========
Non cash transactions:
Issuance of Common Stock for notes receivable ....................... $ 292 $ 1,639
======== ========
Cancellation of notes receivable related to forfeited
unvested restricted Common Stock .................................. $ 89 $ 9
======== ========
Equipment acquired through capital lease obligations ................ $ -- $ 136
======== ========
Acquired net assets associated with FirstFloor acquisition includes:
Fair value of tangible assets ....................................... $ 360
Fair value of existing products and core technology ................. 1,547
Acquired in-process research and development ........................ 1,840
Goodwill ............................................................ 4,266
Fair value of liabilities assumed ................................... (1,951)
--------
$ 6,062
========
</TABLE>
The accompanying notes are an integral part of these condensed consolidated
financial statements.
5
<PAGE> 6
CALICO COMMERCE, INC
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
For the Six Months Ended September 30, 1999
(unaudited)
1. PRINCIPLES OF CONSOLIDATION AND BASIS OF PRESENTATION
The unaudited interim condensed consolidated financial statements
include the accounts of Calico Commerce, Inc. and its wholly owned subsidiaries
(collectively, the "Company", "We" or "Our"). All material intercompany accounts
and transactions have been eliminated in consolidation.
The accompanying condensed consolidated financial statements as of
September 30, 1999 and for the three and six months ended September 30, 1999 and
1998 are unaudited and have been prepared on a consistent basis with the March
31, 1999 audited financial statements and include all normal recurring
adjustments which are, in the opinion of management, necessary for their fair
presentation. These condensed consolidated financial statements should be read
in conjunction with our consolidated financial statements and notes thereto
included in our Registration Statement on Form S-1 for the fiscal year ended
March 31, 1999. The results of operations for the three and six months ended
September 30, 1999 are not necessarily indicative of results to be expected for
the entire year or any other period.
2. REINCORPORATION
Effective September 23, 1999 the Company reincorporated in the State of
Delaware. As a result of the reincorporation, the Company is authorized to issue
150,000,000 shares of $0.001 par value Common Stock and 15,000,000 shares of
$0.001 par value Preferred Stock. The Board of Directors has the authority to
issue the undesignated Preferred Stock in one or more series and to fix the
rights, preferences, privileges and restrictions thereof. Share and per share
information for each of the periods presented have been retroactively adjusted
to reflect the reincorporation.
3. REVENUE RECOGNITION
Our revenues are derived from licenses from our software and related
services, which include implementation and integration, technical support,
training and consulting. For contracts with multiple elements, and for which
vendor-specific objective evidence of fair value for the undelivered elements
exists, we recognize revenue for the delivered elements based upon the residual
contract value as prescribed by Statement of Position No. 98-9, "Modification of
SOP No. 97-2 with Respect to Certain Transactions".
Revenue from license fees is recognized when persuasive evidence of an
agreement exists, delivery of the product has occurred, no significant Company
obligations with regard to implementation or integration exist, the fee is fixed
or determinable and collectibility is probable. Provisions for sales returns are
provided at the time of revenue recognition based upon estimated returns. We
have not incurred charges for product returns to date.
Services revenue primarily comprises revenue from consulting fees,
maintenance contracts and training. Services revenue from consulting and
training is recognized as the service is performed.
Maintenance contracts include the right to unspecified upgrades and
ongoing support. Maintenance revenue is deferred and recognized on a
straight-line basis as services revenue over the life of the related contract,
which is typically one year.
License and services revenue on contracts involving significant
implementation, customization or services which are essential to the
functionality of the software is recognized over the period of each engagement,
primarily using the percentage-of-completion method. Labor hours incurred is
generally used as the measure of progress towards completion. We classify
revenue for these arrangements as license revenue and services revenue based
upon its estimates of fair value for each element and recognizes the revenue
based on the percentage-of-completion ratio for the arrangement. A provision for
estimated losses on engagements is made in the period in which the loss becomes
probable and can be reasonably estimated.
Customer billing occurs in accordance with contract terms. Customer
advances and
6
<PAGE> 7
amounts billed to customers in excess of revenue recognized are recorded as
deferred revenue. Amounts recognized as revenue in advance of billing (typically
under percentage-of-completion accounting) are recorded as unbilled receivables.
4. NET LOSS PER SHARE
Basic net loss per share is computed by dividing the net loss available
to Common Stockholders for the period by the weighted average number of shares
of Common Stock outstanding during the period. Diluted net loss per share is
computed by dividing the net loss for the period by the weighted average number
of shares of Common Stock number and potential shares of Common Stock. The
calculation of diluted net loss per share excludes potential shares of Common
Stock if the effect is antidilutive. Potential shares of Common Stock consist of
unvested restricted Common Stock, incremental shares of Common Stock issuable
upon the exercise of stock options and warrants and shares issuable upon
conversion of the Series A, Series B, Series C, Series D and Series E
Mandatorily redeemable Convertible Preferred Stock.
Our historical capital structure is not indicative of our prospective
structure due to the automatic conversion of all shares of mandatorily
redeemable convertible preferred stock into Common Stock concurrent with the
closing of our recent initial public offering. Accordingly, a pro forma
calculation assuming the conversion of all outstanding shares as of September
30, 1999 and 1998 of mandatorily redeemable convertible preferred stock into
Common Stock upon our initial public offering, as if such conversion occurred at
the beginning of the periods presented, or from their respective dates of
issuance, if later, is presented.
The following table sets forth the computation of basic and diluted net
loss per share and the pro forma basic and diluted net loss per share for the
periods indicated (in thousands, except per share amounts):
<TABLE>
<CAPTION>
THREE MONTHS SIX MONTHS
ENDED SEPTEMBER 30, ENDED SEPTEMBER 30,
--------------------- ---------------------
1999 1998 1999 1998
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Numerator:
Net loss ................................... $ (6,465) $ (4,912) $(11,188) $ (6,557)
======== ======== ======== ========
Denominator:
Weighted average shares .................... 11,496 10,530 11,483 10,299
Weighted average unvested shares of Common
Stock subject to repurchase ............. (2,142) (3,965) (2,299) (3,996)
-------- -------- -------- --------
Denominator for basic and diluted
calculation ............................. 9,354 6,565 9,184 6,303
======== ======== ======== ========
Net loss per share:
Basic and diluted .......................... $ (0.69) $ (0.75) $ (1.21) $ (1.04)
======== ======== ======== ========
</TABLE>
At September 30, 1999 24,422,606 potential common shares are excluded
from the determination of diluted net loss per share as the effect of such
shares is antidilutive.
<TABLE>
<S> <C> <C> <C> <C>
Pro forma:
Shares used above ............................ 9,354 6,565 9,184 6,303
Pro forma adjustment to reflect weighted
effect of assumed conversion of
convertible preferred stock ................ 15,628 13,139 15,627 12,333
-------- -------- -------- --------
Shares used in computing pro forma
basic and diluted net loss per share ...... 24,982 19,704 24,811 18,636
======== ======== ======== ========
Net loss per share:
Basic and diluted .......................... $ (0.26) $ (0.25) $ (0.45) $ (0.35)
======== ======== ======== ========
</TABLE>
The above table reflects the restated weighted average shares for the
three months ended June 30, 1999 to reflect 1,052,632 shares sold to a private
investor in March 1999. Using these shares, the previously reported net loss per
share for that quarter would have been $0.52 instead of the $0.59 shown in the
Company's S-1 registration statement.
7
<PAGE> 8
5. COMPREHENSIVE INCOME
Comprehensive income, as defined, includes all changes in equity (net
assets) during a period from non-owner sources. To date, we have not had any
significant transactions that are required to be reported in comprehensive
income.
6. INFORMATION CONCERNING BUSINESS SEGMENTS
We operate in one single industry segment. We do not have separate
operating segments for which discrete financial statements are prepared. Our
management makes operating decisions and assesses performance primarily based
upon product revenues and related gross margins.
The majority of our sales to other foreign countries are originated in
the United States and therefore represent export sales. The following is a
breakdown of revenues by shipment destination for the three and six months ended
September 30, 1999 and 1998, respectively:
<TABLE>
<CAPTION>
THREE MONTHS SIX MONTHS
ENDED SEPTEMBER 30, ENDED SEPTEMBER 30,
------------------- -------------------
1999 1998 1999 1998
------ ------- ------- -------
<S> <C> <C> <C> <C>
United States........................ $7,294 $ 5,236 $13,836 $ 9,837
Other foreign countries.............. 882 49 1,773 101
------- ------- ------- -------
$8,176 $ 5,285 $15,609 $ 9,938
======= ======= ======= =======
</TABLE>
7. INITIAL PUBLIC OFFERING
On October 7, 1999, we completed our initial public offering of our
common stock. The initial public offering price for the 4,600,000 shares offered
by the Company, including the over-allotment option exercised by the
underwriters, was $14.00 per share. Net proceeds to the Company, before offering
expenses, were $59.9 million or $13.02 per share.
Simultaneous with the closing of the initial public offering, we
received an additional $24.0 million from the sale of an aggregate of 1,843,200
shares of common stock at $13.02 per share in private placements to Dell U.S.A.,
L.P., a Texas limited partnership ($20.0 million) and Andersen Consulting LLP
($4.0 million).
8. STOCK SPLIT
On August 24, 1999, our Board of Directors approved a 3-for-2 stock
split of our outstanding Common Stock. Share and per share information for all
periods presented have been retroactively adjusted to reflect the stock split.
9. DEBT AND ASSOCIATED WARRANTS
In September 1999, we entered into a commitment with a bank to issue
variable rate installment notes in connection with a proposed $3.0 million
equipment financing credit line expiring June 30, 2000. Each advance bears
interest at the banks prime rate plus 0.5% per year, with the principal to be
repaid in 36 equal monthly installments. The bank advanced us $1.0 million under
this commitment on September 30, 1999. In connection with this commitment, we
issued warrants to the bank to purchase 5,263 shares of Common Stock at $9.50
per share, expiring on September 24, 2002. We estimated the fair value of the
warrants at $30,000 using the Black-Scholes option pricing model using the fair
value of our Common Stock of $12.00, risk-free interest rate of 5.5%, volatility
factor of 50% and life of three years. We will record the expense related to the
warrants over the life of the associated financing instrument as additional
interest expense.
Under the above commitment, which was finalized in October 1999 with the
same terms stated above, we are required to meet certain monthly and quarterly
financial tests, including minimum operating results and certain liquidity,
leverage and debt service ratios. All previous agreements with the above
financial institution are now under
8
<PAGE> 9
these same covenants. At September 30, 1999 we were not in compliance with the
quick ratio covenant for which we obtained a waiver. We would have been in
compliance if the October 1999 initial public offering and private placement had
been completed on or before September 30, 1999.
10. COMMITMENTS AND CONTINGENCIES
In August 1999, we entered into a new office lease for our corporate
headquarters, as the previous sub-lease had expired. At September 30, 1999, we
had noncancelable operating leases for office space and equipment of
approximately $9.3 million, which are payable through fiscal 2004.
Although we have no material long-term commitments for capital
expenditures, we anticipate a substantial increase in our capital expenditures
and lease commitments consistent with anticipated growth in operations,
infrastructure and personnel. We intend to fund the intended increase in
expenses and capital expenditures through the proceeds of the completed October
1999 initial public offering, together with existing cash and cash equivalents,
and believe that these funds will be sufficient to meet our working capital
needs for at least the next 12 months. However, we may need to raise additional
funds in order to support more rapid expansion of our sales force, develop new
or enhanced products or services, respond to competitive pressures, acquire
complementary businesses or technologies or respond to unanticipated
requirements. If we seek to raise additional funds, we may not be able to obtain
funds on terms which are favorable or otherwise acceptable to us. If we raise
additional funds through the issuance of equity securities, the percentage
ownership of our stockholders would be reduced. Furthermore, these securities
may have rights, preferences or privileges senior to our common stock.
From time to time, in the normal course of business, various claims are
made against the Company. In the opinion of management, based on consultation
with legal counsel, there are no pending claims for which the outcome is
expected to result in a material adverse effect on the financial position or
results of operations of the Company.
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
The information in this discussion contains forward looking statements
within the meaning of Section 27A of the Securities Act of 1933, as amended, and
Section 21E of the Securities Exchange Act of 1934, as amended. Such statements
are based upon current expectations that involve risks and uncertainties. Any
statements contained herein that are not statements of historical fact may be
deemed to be forward-looking statements. Factors that might cause such a
discrepancy include, but are not limited to, those discussed in "Factors that
May Affect Results" and "Liquidity and Capital Resources" below as well as Risk
Factors included in our prospectus dated October 6, 1999, as filed with the
Securities and Exchange Commission. The following discussion should be read in
conjunction with the Condensed Consolidated Financial Statements and notes
thereto appearing elsewhere in this report.
OVERVIEW
We provide software and services that enable companies to interact
directly with their customers over the Internet, intranets, extranets, and
corporate networks, and accessed through desktop and mobile computers and retail
kiosks to improve the interactive buying and selling of complex products and
services.
We were incorporated in April 1994. From May 1994 through March 1997, we
generated revenue primarily from the license of products based upon our first
generation configuration technology. In March 1997, we released our first
product designed for use over the Internet and corporate networks. In December
1998, we released Calico eSales 2.0, an integrated suite of products that
extended the Internet-based architecture and included Calico eSales
Catalog(since re-named Calico eSales InfoGuide), a product that allows targeted
delivery of information without the need to modify existing applications or
information sources. Calico eSales InfoGuide was the first product release based
upon technology obtained from our August 1998 acquisition of FirstFloor. In May
1999, we released Calico eSales Loyalty Builder, which incorporates technology
also obtained from our acquisition of FirstFloor. In June 1999, we released
Calico eSales 2.5, an integrated suite that incorporates eSales Loyalty Builder,
eSales Quote and improved versions of our other products.
9
<PAGE> 10
We derive revenue principally from the license of our Calico eSales
Suite of products and the delivery of associated implementation and support
services. The mix of products and services sold varies by customer, and
follow-on sales typically reflect an expansion of the use of our products within
the customer's business, rather than a migration to different products. To date,
our sales have been primarily within the computer hardware and network and
telecommunications equipment industries.
Since our inception, we have incurred quarterly and annual losses, and
we expect to continue to incur losses on both a quarterly and annual basis for
the foreseeable future. We incurred net losses of $6.9 million for fiscal 1997,
$5.5 million for fiscal 1998, $15.3 million for fiscal 1999 and $11.2 million
for the six months ended September 30, 1999. As of September 30, 1999, we had an
accumulated deficit of $40.9 million. We expect that our operating expenses will
continue to increase substantially in future quarters as we increase sales and
marketing operations, develop new distribution channels, expand our professional
services organization, and continue to fund research and development.
We have recently experienced a period of rapid growth and expansion, and
expect to continue to expand through multiple growth strategies. To manage this
growth effectively, we will have to improve our existing operational and
financial systems and hire additional qualified personnel. In addition, we
expanded our current headquarters during the first half of fiscal 2000. The
expenses related to this expansion or move may be greater than our obligations
for our current facility.
RESULTS OF OPERATIONS
The following table sets forth the periods indicated, the percentage of
revenues represented by certain lines in our condensed consolidated statements
of operations.
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
------------------ ----------------
1999 1998 1999 1998
---- ---- ---- ----
<S> <C> <C> <C> <C>
Net revenue:
License .............................. 43% 50% 45% 56%
Services ............................. 57 50 55 44
---- ---- ---- ----
Total net revenue ................. 100 100 100 100
---- ---- ---- ----
Cost of net revenue:
License .............................. 3 5 2 4
Services ............................. 42 33 40 31
---- ---- ---- ----
Total cost of net revenue ......... 45 38 42 35
---- ---- ---- ----
Gross margin ........................... 55 62 58 65
---- ---- ---- ----
Operating expenses:
Sales and marketing .................. 57 58 59 59
Research and development ............. 47 23 42 22
General and administrative ........... 23 28 21 21
Stock compensation ................... 5 9 6 9
Acquired in-process research and
development ....................... -- 35 -- 18
Amortization of goodwill ............. 3 1 3 1
---- ---- ---- ----
Total operating expenses .......... 135 154 131 130
---- ---- ---- ----
Loss from operations ................... (80) (92) (73) (65)
Interest and other income, net ......... 1 (1) 1 (1)
---- ---- ---- ----
Net loss ............................... (79) (93) (72) (66)
==== ==== ==== ====
</TABLE>
COMPARISON OF THREE MONTHS ENDED SEPTEMBER 30, 1999 AND 1998
REVENUE
Total net revenue increased 55% to $8.2 million in the three months ended
September 30, 1999 from $5.3 million in the three months ended September 30,
1998.
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<PAGE> 11
LICENSE. License revenue increased 32% to $3.5 million in the three months
ended September 30, 1999 from $2.7 million in the three months ended September
30, 1998. License revenue as a percentage of total net revenue was 43% in the
three months ended September 30, 1999 and 50% in the three months ended
September 30, 1998. The increase in license revenue in absolute dollars is
attributable to an increase in the number and average size of license
transactions recognized during the quarter. Thirteen percent of this quarter's
license revenue resulted from an arrangement with a Shareholder who at the time
of the transaction owned 4% of the Company's outstanding Stock (including
conversion of mandatorily redeemable convertible preferred stock).
SERVICES. Services revenue increased 78% to $4.7 million in the three
months ended September 30, 1999 from $2.6 million in the three months ended
September 30, 1998. Services revenue as a percentage of total net revenue was
57% in the three months ended September 30, 1999 and 50% in the three months
ended September 30, 1998. The increase in services revenue in absolute dollars
and as a percentage of total net revenue is attributable to an increase in the
number and size of consulting engagements, as well as an increase in the
installed base of customers and in the average size of maintenance contracts.
This increase in services revenue as a percentage of total net revenue has
resulted in reduced overall gross margins, since services revenue typically has
lower gross margins than license revenue. During the three months ended
September 30, 1999, 70% of maintenance revenue came from initial maintenance
contracts, with the remainder from maintenance renewals.
COST OF REVENUE
LICENSE. Cost of license revenue decreased 11% to $236,000 in the three
months ended September 30, 1999 from $265,000 in the three months ended
September 30, 1998. Cost of license revenue as a percentage of license revenue
was 7% in the three months ended September 30, 1999 and 10% in the three months
ended September 30, 1998. The decrease in cost of license revenue in absolute
dollars and as a percentage of license revenue is primarily due to a reduction
in royalties paid to third parties for embedded technology. Since it is our
continuing strategy to license third-party technology for inclusion in our
products, we expect the cost of license revenue as a percentage of license
revenue to fluctuate or increase in future periods.
SERVICES. Cost of services revenue increased 99% to $3.5 million in the
three months ended September 30, 1999 from $1.7 million in the three months
ended September 30, 1998. Cost of services revenue as a percentage of services
revenue was 74% in the three months ended September 30, 1999 and 66% in the
three months ended September 30, 1998. The increase in cost of services revenue
in absolute dollars is primarily due to costs associated with increased
personnel in our services organization and increased costs for third-party
contractors used to staff consulting engagements. The increase in cost of
services revenue as a percentage of services revenue is primarily due to an
increase in the use of third-party contractors to staff consulting engagements.
OPERATING EXPENSES
SALES AND MARKETING. Sales and marketing expenses increased 51% to $4.6
million in the three months ended September 30, 1999 from $3.1 million in the
three months ended September 30, 1998. Sales and marketing expenses as a
percentage of total net revenue decreased to 57% in the three months ended
September 30, 1999 from 58% in the three months ended September 30, 1998. Sales
and marketing expenses increased in absolute dollars primarily due to increased
personnel-related costs. We intend to continue to expand our sales and marketing
efforts, and accordingly, expect sales and marketing expenses to increase in
absolute dollars in future periods.
RESEARCH AND DEVELOPMENT. Research and development expenses increased 209%
to $3.8 million in the three months ended September 30, 1999 from $1.2 million
in the three months ended September 30, 1998. Research and development expenses
as a percentage of total net revenue increased to 47% in the three months ended
September 30, 1999 from 23% in the three months ended September 30, 1998.
Research and development expenses increased in absolute dollars and as a
percentage of total net revenue as a result of the addition of engineering and
product development personnel. Personnel-related expenses accounted for the
majority of the increase in absolute dollars. We believe that continued
investment in new product development is central to achieving our strategic
objectives, and expect research and development expenses to increase in absolute
dollars in future periods.
GENERAL AND ADMINISTRATIVE. General and administrative expenses increased
30% to $1.9 million in the three months ended September 30, 1999 from $1.5
million in the three
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months ended September 30, 1998. General and administrative expenses as a
percentage of total net revenue were 23% in the three months ended September 30,
1999 and 28% in the three months ended September 30, 1998. General and
administrative expenses decreased as a percentage of net revenues due in part to
a prior year charge of $660,000 in the quarter ended September 30, 1998 for the
minimum lease payments committed under our previous leased facility which we
vacated and losses on disposal of certain fixed assets, related to the
relocation of our corporate headquarters. Excluding this one-time charge, the
absolute increase in general and administrative expenses was a result of
increased personnel-related costs resulting from the growth of our finance,
human resources and information systems staff, along with increased legal and
financial advisory fees. We expect general and administrative expenses to
increase in absolute dollars in future periods as we add personnel and incur
costs to support the growth of our business.
STOCK COMPENSATION. In connection with the granting of stock options to
our employees, we recorded aggregate unearned compensation totaling $5.6
million. The unearned compensation represents the difference between the
exercise price of stock option grants and the deemed fair value of our common
stock at the time of the grants. We recorded expenses related to stock
compensation of $420,000 in the three months ended September 30, 1999 and
$469,000 in the three months ended September 30, 1998. Stock compensation
expenses as a percentage of total net revenue were 5% in the three months ended
September 30, 1999 and 9% in the three months ended September 30, 1998.
AMORTIZATION OF GOODWILL. During the three months ended September 30,
1999, we recorded $236,000 in amortization, reflecting the amortization of
goodwill acquired as part of the FirstFloor acquisition.
INTEREST AND OTHER INCOME, NET
Interest and other income, net, improved to $66,000 of net interest income
in the three months ended September 30, 1999 from $46,000 of net interest
expense in the three months ended September 30, 1998. The improvement is
primarily due to interest earned on increased cash and equivalents balances.
COMPARISON OF SIX MONTHS ENDED SEPTEMBER 30, 1999 AND 1998
REVENUE
Total net revenue increased 57% to $15.6 million in the six months ended
September 30, 1999 from $9.9 million in the six months ended September 30, 1998.
LICENSE. License revenue increased 25% to $7.0 million in the six months
ended September 30, 1999 from $5.6 million in the six months ended September 30,
1998. License revenue as a percentage of total net revenue was 45% in the six
months ended September 30, 1999 and 56% in the six months ended September 30,
1998. The increase in license revenue in absolute dollars is attributable to an
increase in the number and average size of license transactions recognized
during the quarter. Six percent of this period's license revenue resulted from
an arrangement with a Shareholder who at the time of the transaction owned 4% of
the Company's outstanding Stock (including conversion of mandatorily redeemable
convertible preferred stock).
SERVICES. Services revenue increased 99% to $8.7 million in the six months
ended September 30, 1999 from $4.3 million in the six months ended September 30,
1998. Services revenue as a percentage of total net revenue was 55% in the six
months ended September 30, 1999 and 44% in the six months ended September 30,
1998. The increase in services revenue in absolute dollars and as a percentage
of total net revenue is attributable to a significant increase in the number and
size of consulting engagements, as well as an increase in the installed base of
customers and in the average size of maintenance contracts. This increase in
services revenue as a percentage of total net revenue has resulted in reduced
overall gross margins, since services revenue typically has lower gross margins
than license revenue. During the six months ended September 30, 1999, 71% of
maintenance revenue came from initial maintenance contracts, with the remainder
from maintenance renewals.
COST OF REVENUE
LICENSE. Cost of license revenue increased 2% to $373,000 in the six
months ended September 30, 1999 from $366,000 in the six months ended September
30, 1998. Cost of license revenue as a percentage of license revenue was 5% in
the six months ended
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September 30, 1999 and 7% in the six months ended September 30, 1998. The
increase in cost of license revenue in absolute dollars is due to the
amortization of existing products and core technology acquired in the
acquisition of FirstFloor, offset by reduced payments to third parties for
embedded technology. The decline in cost of license revenue as a percentage of
net license revenue is due to growth in license revenue and lower average
royalty rates.
SERVICES. Cost of services revenue increased 97% to $6.1 million in the
six months ended September 30, 1999 from $3.1 million in the six months ended
September 30, 1998. Cost of services revenue as a percentage of services revenue
was 71% in the six months ended September 30, 1999 and 71% in the six months
ended September 30, 1998. The increase in cost of services revenue in absolute
dollars is primarily due to costs associated with increased personnel in our
services organization as well as increased costs for third-party contractors
used to staff consulting engagements.
OPERATING EXPENSES
SALES AND MARKETING. Sales and marketing expenses increased 58% to $9.2
million in the six months ended September 30, 1999 from $5.8 million in the six
months ended September 30, 1998. Sales and marketing expenses as a percentage of
total net revenue was 59% in the six months ended September 30, 1999 and 59% in
the six months ended September 30, 1998. Sales and marketing expenses increased
in absolute dollars primarily due to increased personnel-related costs,
resulting from our continued investment in the development of our international
direct sales and indirect sales and marketing organizations.
RESEARCH AND DEVELOPMENT. Research and development expenses increased 193%
to $6.5 million in the six months ended September 30, 1999 from $2.2 million in
the six months ended September 30, 1998. Research and development expenses as a
percentage of total net revenue increased to 42% in the six months ended
September 30, 1999 from 22% in the six months ended September 30, 1998. Research
and development expenses increased in absolute dollars and as a percentage of
total net revenue as a result of increased engineering and product development
personnel partially attributable to personnel added as a result of our
acquisition of FirstFloor in the quarter ended September 30, 1998.
Personnel-related expenses accounted for the majority of the increase in
absolute dollars.
GENERAL AND ADMINISTRATIVE. General and administrative expenses increased
60% to $3.4 million in the six months ended September 30, 1999 from $2.1 million
in the six months ended September 30, 1998. General and administrative expenses
as a percentage of total net revenue were 21% in the six months ended September
30, 1999 and 21% in the six months ended September 30, 1998. In the six months
ended September 30, 1998, general and administrative expenses included a charge
of $660,000 in the quarter ended September 30, 1998 for the minimum lease
payments committed under our previous leased facility which we vacated and
losses on disposal of certain fixed assets, related to the relocation of our
corporate headquarters. Excluding this charge, the majority of the absolute
dollar increase in general and administrative expenses was due to increased
personnel-related costs resulting from the growth of our finance, human
resources and information systems staff, and due to increased spending for legal
and financial advisory services.
STOCK COMPENSATION. We recorded expenses related to stock compensation of
$934,000 in the six months ended September 30, 1999 and $893,000 in the six
months ended September 30, 1998. Stock compensation expenses as a percentage of
total net revenue were 6% in the six months ended September 30, 1999 and 9% in
the six months ended September 30, 1998.
AMORTIZATION OF GOODWILL. During the six months ended September 30, 1999,
we recorded $476,000 in amortization, compared with $78,000 in the six months
ended September 30, 1998.
INTEREST AND OTHER INCOME, NET
Interest and other income, net, improved to $137,000 of net interest
income in the six months ended September 30, 1999 from $81,000 of net interest
expense in the six months ended September 30, 1998. The improvement is primarily
due to interest earned on increased cash and cash equivalent balances.
LIQUIDITY AND CAPITAL RESOURCES
In October 1999, we completed an initial public offering of 4,600,000
shares of Common Stock (including the exercise of the underwriters'
overallotment option) at $14.00 per share. Net proceeds to us, before offering
expenses, were $59.9 million or $13.02
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per share. Simultaneous with the closing of the initial public offering, the
Company received an additional $24.0 million from the sale of an aggregate of
1,843,200 shares of common stock at $13.02 per share in private placements to
Dell U.S.A., L.P., a Texas limited partnership ($20.0 million) and Andersen
Consulting LLP ($4.0 million). We have used, and continue to expect to use, the
proceeds from the sale of stock for general corporate purposes, including
working capital. A portion of the proceeds may also be used to acquire or invest
in complementary companies, product lines, products or technologies. Pending
such uses, we have invested the net proceeds from the sale of stock in
investment grade, interest-bearing securities. Prior to our initial public
offering, we had financed our operations and met our capital expenditure
requirements primarily through the sale of private equity securities, and to a
lesser extent, notes payable and capital equipment leases.
As of September 30, 1999, we had $5.4 million of cash and cash
equivalents, compared with $15.4 million as of March 31, 1999. Cash used in
operating activities was $4.3 million for fiscal 1997, $3.3 million for fiscal
1998 and $7.4 million for fiscal 1999, and was $2.0 million in the six months
ended September 30, 1998 and $8.7 million in the six months ended September 30,
1999. Cash used in operations resulted primarily from net losses net of non-cash
expenses including depreciation and stock compensation, and increases in our
accounts receivable, offset in part by the growth in accounts payable and
accrued liabilities.
Net cash used in investing activities of $930,000 for fiscal 1997, $1.4
million for fiscal 1998, $1.8 million for fiscal 1999, $571,000 for the six
months ended September 30, 1998 and $2.2 million for the six months ended
September 30, 1999, related to purchases of computer equipment and to a lesser
extent software and office furniture to support our expanding operations.
Financing activities provided net cash of $5.4 million for fiscal 1997,
$5.3 million for fiscal 1998, $22.1 million for fiscal 1999, $10.7 million for
the six months ended September 30, 1998 and $763,000 in the six months ended
September 30, 1999. Financing activities were primarily the sale of our Common
and Preferred Stock. We have also used debt and leases to partially finance our
operations and capital purchases. At September 30, 1999 we also had $2.0 million
in current and non-current debt as well as $305,000 in current and non-current
lease obligations.
Included in the amounts above are four variable rate installment notes
with a bank that are secured by the equipment financed by the bank. The notes
bear interest at the bank prime rate and are due between March 2001 and February
2002. Also included are three notes payable to an equipment financing company
that bear interest at 7% per year and are due between June 2000 and October
2000, and three capital leases for the lease of computer and office equipment
due through January 2003.
In September 1999, we entered into a commitment with the bank issuing the
variable rate installment notes described above in connection with a proposed
$3.0 million equipment financing credit line expiring June 30, 2000, which we
completed in October 1999. Each advance bears interest at the bank's prime rate
plus 0.5% per year, with principal to be repaid in 36 equal monthly
installments. The bank advanced us $1.0 million under this commitment on
September 30, 1999. We issued warrants to the bank to purchase 5,263 shares of
common stock at $9.50 per share in connection with this commitment.
Under the above commitment, which was finalized in October 1999 with the
same terms stated above, we are required to meet certain monthly and quarterly
financial tests, including minimum operating results and certain liquidity,
leverage and debt service ratios. All previous agreements with the above
financial institution are now under these same covenants. At September 30, 1999
we were in compliance with all of the new financial covenants.
In August 1999, we entered into a new office lease for our corporate
headquarters, as the previous sub-lease had expired. At September 30, 1999, we
had noncancelable operating leases for office space and equipment of
approximately $9.3 million, which are payable through fiscal 2004.
Although we have no material long-term commitments for capital
expenditures, we anticipate a substantial increase in our capital expenditures
and lease commitments consistent with anticipated growth in operations,
infrastructure and personnel. We intend to fund the intended increase in
expenses and capital expenditures through the proceeds of the completed October
1999 initial public offering, together with existing cash and cash equivalents,
and believe that these funds will be sufficient to meet our working capital
needs for at least the next 12 months. However, we may need to raise additional
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funds in order to support more rapid expansion of our sales force, develop new
or enhanced products or services, respond to competitive pressures, acquire
complementary businesses or technologies or respond to unanticipated
requirements. If we seek to raise additional funds, we may not be able to obtain
funds on terms which are favorable or otherwise acceptable to us. If we raise
additional funds through the issuance of equity securities, the percentage
ownership of our stockholders would be reduced. Furthermore, these securities
may have rights, preferences or privileges senior to our Common Stock.
RECENTLY ISSUED ACCOUNTING PRONOUNCEMENTS
In June 1998, the FASB issued Statement of Financial Accounting
Standards No. 133, "Accounting for Derivatives and Hedging Activities". This
statement establishes accounting and reporting standards of derivative
instruments, including certain derivative instruments embedded in other
contracts, and for hedging activities. SFAS No. 133 will become effective during
the year ending March 31, 2001. The adoption of SFAS No. 133 is not expected to
have a material effect on our results of operations, financial position or cash
flows.
YEAR 2000 COMPLIANCE
The "year 2000" issue refers generally to the problems that some software
may have in determining the correct century for the year. Software with date
sensitive information that is not year 2000 compliant may not be able to
distinguish whether "00" means 1900 or 2000, which may result in system failures
or the creation of erroneous results. We are subject to potential year 2000
problems affecting our products, our internal systems and the systems of our
suppliers and customers, any of which could harm our business.
We believe that all current versions of our products are year 2000
compliant, so long as they are configured and used in accordance with our
specifications, and provided that the underlying operating systems and any other
software used with our products are also year 2000 compliant. However, since our
products are integrated with our customers' systems, the failure of our
customers' systems to be year 2000 compliant could impede the success of our
applications in their systems. Accordingly, known or unknown defects or errors
that affect the operation of our software, including any defects or errors in
systems that include our products, could result in delay or loss of revenue,
diversion of development resources, damage to our reputation, or increased
service or warranty costs, any of which could harm our business.
We have completed an assessment of our internal systems and are not
currently aware of any material operational issues or costs associated with our
internal systems for the year 2000. However, we may experience material
unanticipated problems and costs caused by undetected errors or defects in the
technology used in our internal systems.
In conjunction with our year 2000 assessment, we have contacted our major
suppliers to determine whether their operations and the products and services
they provide are year 2000 compliant. Where practicable, we have attempted to
mitigate our risks with respect to the failure of suppliers to be year 2000
compliant. However, these failures remain a possibility and could harm our
business.
We have developed a series of contingency plans to address situations that
may result if our products, our internal systems, or the systems of our
suppliers or customers are not year 2000 compliant.
We have funded our year 2000 plan from available cash and have not
separately accounted for these costs. Through September 30, 1999, these costs
have not been material and are not expected to be material. However, we may
experience unanticipated problems and costs with year 2000 compliance that could
harm our business.
FACTORS THAT MAY AFFECT RESULTS
You should carefully consider the risks described below, together with all
of the other information included in this prospectus, before deciding whether to
invest in our common stock.
If any of the following risks actually occurs, our business could be
harmed. In such case, the trading price of our Common Stock could decline, and
you may lose all or part of your investment.
WE HAVE A HISTORY OF LOSSES, WE EXPECT TO CONTINUE TO INCUR LOSSES AND
WE MAY NOT ACHIEVE OR MAINTAIN PROFITABILITY
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We have incurred quarterly and annual losses in each of the five years
since we were formed, and we expect to continue to incur losses on both a
quarterly and annual basis for the foreseeable future. We incurred net losses of
$6.9 million for fiscal 1997, $5.5 million for fiscal 1998, $15.3 million for
fiscal 1999 and $11.2 million for the six months ended September 30, 1999. As of
September 30, 1999, we had an accumulated deficit of $40.9 million. Moreover, we
expect to continue to incur significant sales and marketing and research and
development expenses, and, as a result, we will need to generate significant
revenue to achieve and maintain profitability. Although our revenue has grown in
recent quarters, we cannot be certain that we can sustain this growth or that we
will generate sufficient revenue for profitability. If we do achieve
profitability, we cannot be certain that we can sustain or increase
profitability on a quarterly or annual basis in the future.
OUR QUARTERLY RESULTS FLUCTUATE SIGNIFICANTLY, ARE SUBJECT TO SEASONALITY AND
MAY FALL SHORT OF ANTICIPATED LEVELS, WHICH MAY CAUSE VOLATILITY OR DECLINE IN
THE PRICE OF OUR COMMON STOCK
Our quarterly operating results have varied significantly in the past and
we expect that they will continue to vary significantly from quarter to quarter
in the future.
In addition, we receive a major portion of our orders near the end of each
quarter. Therefore, we have difficulty predicting the volume and timing of
orders, and short delays in closing orders or implementation of products can
cause our operating results to fall substantially short of anticipated levels
for that quarter.
We also expect to experience seasonal fluctuations in the sales of our
software products. For example, our quarterly results may fluctuate based upon
our customers' calendar year budgeting cycles. These seasonal variations may
lead to fluctuations in our quarterly operating results.
As a result of these and other factors, we believe that period-to-period
comparisons of our historical results of operations are not necessarily
meaningful and are not a good predictor of our future performance. In some
future quarter our operating results may be below the expectations of public
market analysts and investors, which could cause volatility or decline in the
price of our common stock.
OUR PRODUCTS HAVE A LONG SALES AND IMPLEMENTATION CYCLE WHICH MAKES IT DIFFICULT
TO PREDICT OUR QUARTERLY RESULTS AND MAY CAUSE OPERATING RESULTS TO VARY
SIGNIFICANTLY
The sales cycle for our products is long, typically ranging from three
months to a year, making it difficult to predict the quarter in which revenue
recognition may occur. Our products have a relatively high sales price per unit,
and often are part of a significant strategic decision by our customers
regarding their information systems infrastructure. Accordingly, the decision to
purchase our products typically requires significant pre-purchase evaluation. We
spend significant time educating and providing information to prospective
customers regarding the use and benefits of our products. During this evaluation
period, we may expend substantial funds in sales, marketing and management
efforts.
This lengthy sales cycle may cause license revenue and operating results
to vary significantly from period to period. If anticipated sales from a
specific customer for a particular quarter are not realized in that quarter, our
operating results may vary significantly and we may miss our revenue forecast.
IF WE ARE UNABLE TO COMPLETE SUBSTANTIAL LICENSE SALES WHEN ANTICIPATED OR
EXPERIENCE DELAYS IN THE PROGRESS ON A PROJECT OR IN THE SATISFACTION OF
CONTRACT TERMS, WE MAY HAVE TO DEFER REVENUE UNTIL LATER QUARTERS, CAUSING OUR
QUARTERLY RESULTS TO FLUCTUATE AND FALL BELOW ANTICIPATED LEVELS
Even after purchase of our products, it often takes substantial time and
resources to implement our software and to integrate it with our customers'
existing computer systems. We may not be able to recognize all or a portion of
the revenue until the implementation of the software is completed or milestones
are achieved. We have in the past and may in the future be required to defer
license revenue for software products from the period in which the agreement for
the license of software is signed to subsequent periods. If we are unable to
complete one or more substantial anticipated license sales or experience delays
in the progress on a project or product or in the satisfaction of contract terms
required for revenue recognition in a particular quarter,
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we may not be able to recognize revenue when anticipated, causing our quarterly
results to fluctuate and fall below anticipated levels. This could cause our
stock price to decline.
BECAUSE A SMALL NUMBER OF CUSTOMERS ACCOUNT FOR A SUBSTANTIAL PORTION OF OUR
REVENUE, OUR REVENUE COULD DECLINE IF WE LOSE A MAJOR CUSTOMER
We derive a significant portion of our software license revenue in each
quarter from a limited number of customers. For example, for the six months
ended September 30, 1999, two customers accounted for 42% of our revenue and ten
customers accounted for 83% of our revenue. Many of our contracts are in excess
of $1.0 million. We expect that a limited number of customers will continue to
account for a substantial portion of our revenue for the foreseeable future. As
a result, if we lose a major customer, if a contract is delayed, cancelled or
deferred or if an anticipated sale is not made, our revenue would be adversely
affected. In addition, customers that have accounted for significant revenue in
the past may not continue to generate revenue in any future period.
WE MAY NOT ACHIEVE ANTICIPATED REVENUE IF WE DO NOT SUCCESSFULLY INTRODUCE, OR
IF OUR CUSTOMERS DO NOT ACCEPT, UPGRADES AND ENHANCEMENTS TO OUR PRODUCTS
We currently derive substantially all of our revenue from licenses,
professional services and support related to sales of the Calico eSales Suite.
Our business depends on the success and customer acceptance of the
introduction of upgrades as well as future enhancements. Although our products
have been subject to our internal testing procedures, since the new version of
the Calico eSales Suite has only recently been introduced, customers may
discover errors or other problems with the product, which may adversely affect
its acceptance.
We expect that we will continue to depend on revenue from new and enhanced
versions of the Calico eSales Suite for the foreseeable future, and if our
target customers do not continue to adopt and expand their use of the Calico
eSales Suite, we may not achieve anticipated revenue.
WE COULD FAIL TO ACHIEVE ANTICIPATED REVENUE IF WE EXPERIENCE DELAYS IN
INTRODUCTION AND MARKET ACCEPTANCE OF NEW PRODUCTS
We expect to add new products by acquisition or internal development and
by developing enhancements to our existing products. We have in the past
experienced delays in the planned release dates of our software products and
upgrades. New products may not be released on schedule or may contain defects
when released. The introduction of enhancements to our suite of products may
cause customers to defer orders for our existing products. New and enhanced
products may not meet the requirements of the marketplace and achieve market
acceptance. If we are unable to ship or implement new or enhanced products when
planned, or fail to achieve timely market acceptance of our new or enhanced
products, we may suffer lost sales and could fail to achieve anticipated
revenue.
WE HAVE LIMITED EXPERIENCE WITH LARGE-SCALE DEPLOYMENTS, THE CALICO ESALES
CONFIGURATOR OPERATES ONLY ON WINDOWS NT AND NOT ON UNIX-BASED WEB SERVERS, AND
IF OUR PRODUCTS DO NOT SCALE TO OPERATE IN A COMPANY-WIDE ENVIRONMENT, WE MAY
LOSE SALES AND SUFFER DECREASED REVENUE
Our strategy requires that our software be highly scalable, or able to
accommodate substantial increases in the number of users concurrently using the
product. However, we are just beginning to deploy large-scale Internet-based
solutions and no large-scale deployment has been operating at any customer site
for an extended period of time. In addition, the interface component of the
Calico eSales Configurator is powered by Microsoft Active Server Pages and
therefore operates only on Windows NT. We are developing user interface
components to allow our customers to use either a Unix-based or Windows NT-based
web server. If we are unable to promptly or successfully develop the Unix
version, the scalability of our Calico eSales Configurator may be limited for
larger customer applications due to the scalability limitations of Windows NT.
If our solutions do not perform adequately in large-scale implementations, we
may lose customer sales resulting in a decline in revenue.
In addition, the computer software for our larger customer applications is
often implemented together with computer software applications from other
companies. Some of these implementations are performed by third parties. If our
customers experience delays or difficulties implementing our software together
with these computer software
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applications in large scale complex integrations, we may lose sales, incur
customer dissatisfaction and suffer decreased revenue.
TO DATE, OUR SALES HAVE BEEN CONCENTRATED IN THE COMPUTER HARDWARE AND NETWORK
AND TELECOMMUNICATIONS EQUIPMENT MARKETS AND IF WE ARE UNABLE TO SUCCESSFULLY
PENETRATE NEW MARKETS, WE MAY NOT BE ABLE TO ACHIEVE EXPECTED SALES GROWTH
Sales of our products and services in two markets -- computer hardware and
network and telecommunications equipment -- accounted for over 60% of our total
net revenue in the six months ended September 30, 1999. We expect that revenue
from these two markets will continue to account for a substantial portion of our
total net revenue in fiscal 2000. We are targeting expansion in additional
market segments defined by industry where eCommerce software is highly strategic
and promote competitive advantage, including manufacturing, retail,
telecommunications services and financial services. If we are unable to
successfully increase penetration of our existing markets or expand in these
additional markets, or if the overall economic climate of our target markets
deteriorates, we may not be able to achieve expected sales growth.
IN ORDER TO INCREASE SALES OF OUR PRODUCTS, WE MUST INCREASE OUR DIRECT SALES
FORCE; HOWEVER, HIRING AND INTEGRATING SALES PERSONNEL TAKES TIME AND THERE IS A
SHORTAGE OF QUALIFIED PERSONNEL
Our future growth depends on the ability of our direct sales force to
develop customer relationships and increase sales to a level that will allow us
to reach and maintain profitability. Our ability to increase our sales will
depend on our ability to recruit, train and retain top quality sales people who
are able to target prospective customers' senior management, and who can
productively generate and service large accounts.
There is a shortage of the sales personnel we need, and competition for
qualified personnel is intense. In addition, it will take time for new sales
personnel to achieve full productivity. If we are unable to hire or retain
qualified sales personnel, or if newly hired personnel fail to develop the
necessary skills or to reach productivity when anticipated, we may not be able
to expand our sales organization and increase sales of our products.
IF WE DO NOT EXPAND OUR PROFESSIONAL SERVICES ORGANIZATION AND ESTABLISH AND
MAINTAIN RELATIONSHIPS WITH THIRD PARTY CONSULTANTS, WE MAY NOT BE ABLE TO
PROVIDE ADEQUATE IMPLEMENTATION SERVICES TO OUR CUSTOMERS
Growth in the license of our products depends on our ability to provide
our customers with professional services to assist with design, implementation
and maintenance. If we are unable to get the support of third-party consultants
to provide these services or if third parties do not provide these services
effectively or in a cost-efficient manner, or decide to develop their own
products or support the products of our competitors rather than our products, we
may not be able to provide sufficient implementation services to our customers.
This could result in decreased customer satisfaction and loss of sales. In
addition, if we have to retain third party consultants to provide services for
our customers for which we have previously committed, the resulting increased
costs could have an adverse impact on the gross margins for our professional
services.
YEAR 2000 CONSIDERATIONS MAY CAUSE OUR CUSTOMERS AND POTENTIAL CUSTOMERS TO
DELAY PURCHASES OF OUR PRODUCTS UNTIL LATER IN 2000, AND MAY REDUCE OUR SALES
We may experience reduced license of products as customers and potential
customers put a priority on correcting year 2000 problems and therefore defer
purchase decisions for software products until later in 2000. Accordingly,
demand for our products may be particularly volatile and unpredictable for the
remainder of calendar 1999 and 2000.
OUR DEPENDENCE ON SERVICES REVENUE, WHICH HAS A LOWER GROSS MARGIN THAN LICENSE
REVENUE, COULD ADVERSELY IMPACT OUR GROSS MARGIN AND OPERATING RESULTS
We anticipate that services revenue will continue to represent a
significant percentage of total net revenue as we continue to provide consulting
and training services that complement our products and as our installed base of
customers grows. To increase services revenue, we must expand our services
organization, successfully recruit and train a sufficient number of qualified
services personnel, and obtain renewals of current maintenance contracts by our
customers.
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<PAGE> 19
Although services revenue is important to our business, services revenue
has lower gross margins than license revenue. As a result, a continued increase
in the percentage of total net revenue represented by services revenue or an
unexpected decrease in license revenue could have a detrimental impact on our
overall gross margins and our operating results.
WE NEED TO ESTABLISH AND MAINTAIN KEY MARKETING ALLIANCES TO COMPLEMENT OUR
DIRECT SALES FORCE IN ORDER TO GROW SALES; HOWEVER, FEW POTENTIAL PARTNERS HAVE
FOCUSED ON OUR SOFTWARE MARKET AND WE HAVE ONLY ENTERED INTO A SMALL NUMBER OF
KEY ALLIANCES
In order to increase geographic sales coverage worldwide and to address
new markets and customer segments, we must complement our direct sales force
with strategic marketing alliances. Until recently, few potential partner
organizations have focused on the emerging class of packaged electronic commerce
applications and we have only established a limited number of such key
alliances. To date, we have not generated significant revenue from these
alliances. If we fail to maintain our existing relationships and to establish
new key alliances, or if our partners do not perform to our or our customers'
expectations, we may not be able to expand our sales as anticipated.
COMPETITION IN THE MARKET FOR ADVANCED ELECTRONIC COMMERCE PRODUCTS AND SERVICES
IS INTENSE AND COMES FROM DEVELOPERS OF IN-HOUSE SOLUTIONS, VENDORS OF
ENTERPRISE CLASS SOFTWARE AND EMERGING COMPANIES FOCUSED ON ELECTRONIC COMMERCE,
AND COULD REDUCE OUR SALES AND PREVENT US FROM ACHIEVING PROFITABILITY
The market for software and services that enable electronic commerce is
new, intensely competitive, highly fragmented, and rapidly changing. We expect
competition to persist and intensify, which could result in price reductions,
reduced gross margins and loss of market share.
Competitors vary in size and in the scope and breadth of the products and
services offered. Many of our competitors and potential competitors have a
number of significant advantages over us, including:
- - a longer operating history;
- - preferred vendor status with our customers;
- - more extensive name recognition and marketing power; and
- - significantly greater financial, technical, marketing and other resources,
giving them the ability to respond more quickly to new or changing
opportunities, technologies and customer requirements.
Our competitors may also bundle their products in a manner that may
discourage users from purchasing our products. Current and potential competitors
may establish cooperative relationships with each other or with third parties,
or adopt aggressive pricing policies to gain market share. Competitive pressures
may require us to reduce the prices of our products and services. We may not be
able to maintain or expand our sales if competition increases and we are unable
to respond effectively.
MANY OF OUR EXECUTIVE OFFICERS AND KEY PERSONNEL ARE RELATIVELY NEW AND MUST BE
INTEGRATED INTO OUR ORGANIZATION, AND WE NEED TO IMPROVE AND IMPLEMENT NEW
SYSTEMS, PROCEDURES AND CONTROLS AND HIRE ADDITIONAL PERSONNEL IN ORDER TO
CONTINUE TO MANAGE OUR RAPID GROWTH
We have recently experienced a period of rapid growth and expansion, which
places significant demands on our managerial administrative, operational,
financial and other resources. All members of our management team, other than
our Vice President, Research and Development have joined Calico since June 1997.
Our Vice President, Engineering joined Calico in January 1999, and our Vice
President and Chief Financial Officer joined Calico in June 1999. From September
30, 1997 to September 30, 1999, we expanded from 85 to 272 employees. Our new
employees include a number of key managerial, marketing, planning, technical and
operations personnel who have not yet been fully integrated into our
organization.
We also plan to expand the geographic scope of our operations. Our rapid
growth and expansion places significant demands on our managerial,
administrative, operational, financial and other resources. To accommodate
continued anticipated growth and expansion, we will be required to:
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<PAGE> 20
- - improve existing and implement new operational and financial systems,
procedures and controls; and
- - hire, train, manage, retain and motivate qualified personnel.
These measures may place additional burdens on our management and our
internal resources.
THE MARKET FOR OUR ELECTRONIC COMMERCE PRODUCTS AND SERVICES IS NEW AND EVOLVING
AND CUSTOMERS MAY NOT ACCEPT OUR PRODUCTS
The market for our products and services is at an early stage of
development and is rapidly evolving. This market may not continue to develop and
grow, and companies may not elect to utilize our products and services rather
than attempt to develop applications internally or through other sources.
Companies that have already invested substantial resources in other methods of
conducting commerce may be reluctant to adopt a new approach that may replace,
limit or compete with their existing systems. We expect that we will continue to
need intensive marketing and sales efforts to educate prospective customers
about the uses and benefits of our products and services. Therefore, demand for
and market acceptance of our products and services will be subject to a high
level of uncertainty.
NEW TECHNOLOGIES COULD RENDER OUR PRODUCTS OBSOLETE OR REQUIRE US TO REWRITE OUR
SOFTWARE IN NEW COMPUTER LANGUAGES OR FOR OTHER OPERATING SYSTEMS
The market for software and services that enable electronic commerce is
characterized by rapid technological change, changes in customer requirements,
frequent new product and service introductions and enhancements, and emerging
industry standards. Advances in Internet technology or in applications software
directed at electronic commerce, or the development of entirely new technologies
to replace existing software, could lead to new competitive products that have
better performance or lower prices than our products and could render our
products obsolete and unmarketable. In addition, if a new software language or
operating system becomes standard or is widely adopted in our industry, we may
need to rewrite portions of our products in another computer language or for
another operating system to remain competitive. If we are unable to develop
products that respond to changing technology, our business could be harmed.
It is common for software companies to acquire other companies as a means
of introducing new products or emerging technologies. If a new technology or
product emerges that may displace our product lines, competitors with large
market capitalizations or cash reserves would be better positioned than we are
to acquire such new technology or product.
IF WE LOSE KEY PERSONNEL, WE COULD EXPERIENCE REDUCED SALES, DELAYED PRODUCT
DEVELOPMENT AND DIVERSION OF MANAGEMENT RESOURCES
Our success depends largely on the continued contributions of our key
management, engineering, sales and marketing and professional services
personnel, many of whom would be difficult to replace. We do not have employment
agreements with most of our key personnel. Although we have not experienced
significant turnover in our key personnel in the recent past, if one or more
members of our senior management were to resign, the loss of personnel could
result in loss of sales, delays in new product development and diversion of
management resources.
BECAUSE COMPETITION FOR QUALIFIED PERSONNEL IS INTENSE, WE MAY NOT BE ABLE TO
RECRUIT OR RETAIN PERSONNEL, WHICH COULD IMPACT THE DEVELOPMENT OR SALES OF OUR
PRODUCTS
Our success depends on our ability to attract and retain additional
qualified engineering, sales and marketing and professional services personnel.
Competition for these types of personnel is intense, especially in Silicon
Valley. If we are unable to retain our existing key personnel, or attract and
train additional qualified personnel, our growth may be limited due to our lack
of capacity to develop and market our products.
ACQUISITIONS, SUCH AS OUR ACQUISITION OF FIRSTFLOOR, MAY BE COSTLY AND DIFFICULT
TO INTEGRATE, DIVERT MANAGEMENT RESOURCES OR DILUTE STOCKHOLDER VALUE
As part of our business strategy, we have in the past and may in the
future make acquisitions of, or investments in companies, products or
technologies that complement our current products, augment our market coverage,
enhance our technical capabilities or that may otherwise offer growth
opportunities. For example, in 1998 we acquired
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<PAGE> 21
FirstFloor Software. We encountered the following difficulties in our
acquisition of FirstFloor and would anticipate similar difficulties in future
acquisitions:
- - difficulties in the assimilation of acquired personnel, operations,
technologies or products;
- - unanticipated costs associated with the acquisition;
- - diversion of management's attention from other business concerns; and
- - adverse effects on existing business relationships with suppliers and
customers.
Future acquisitions could also pose risks of entering markets where we
have no or limited prior experience and require us to use substantial portions
of our available cash to consummate the acquisition.
In addition, in connection with any future acquisitions, we could:
- - issue equity securities which would dilute current stockholders' percentage
ownership;
- - incur substantial debt; or
- - assume significant liabilities.
These actions by us could materially adversely affect our operating
results and/or the price of our common stock.
WE INTEND TO PURSUE RELATIONSHIPS WITH EMERGING ELECTRONIC COMMERCE BUSINESSES
THAT MAY HAVE NO PROVEN RECORD OF SUCCESS
We intend to pursue relationships with and foster development of emerging
electronic commerce-based businesses at an early stage of their development. We
may pursue these new ventures by acquisition, joint venture, or other
alternative investment. We cannot be certain that these new ventures will be
successful, or that we will generate any revenue from these new ventures. In
addition to the risks posed by traditional acquisitions, these new ventures may
have no proven record of success, and may fail, causing us to lose our
investment, and may divert management time and resources.
WE DEPEND ON TECHNOLOGY LICENSED TO US BY THIRD PARTIES FOR OUR APPLICATION
SERVERS, SEARCH CAPABILITY SOFTWARE, A LICENSING MECHANISM AND QUOTE GRID
TECHNOLOGY, AND THE LOSS OR INABILITY TO MAINTAIN THESE LICENSES COULD RESULT IN
INCREASED COSTS OR DELAY SALES OF OUR PRODUCTS
We license technology from several software providers for our application
servers, our search capability software, a licensing mechanism and quote grid
technology. We anticipate that we will continue to license technology from third
parties in the future. This software may not continue to be available on
commercially reasonable terms, if at all. Some of the software we license from
third parties could be difficult to replace. The loss of any of these technology
licenses could result in delays in the license of our products until
equivalent technology, if available, is developed or identified, licensed and
integrated. In addition, the effective implementation of our products depends
upon the successful operation of third-party licensed products in conjunction
with our products, and therefore any undetected errors in these licensed
products could prevent the implementation or impair the functionality of our
products, delay new product introductions and/or injure our reputation. The use
of additional third-party software would require us to enter into license
agreements with third parties, which could result in higher royalty payments and
a loss of product differentiation.
SOFTWARE DEFECTS IN OUR SOFTWARE PRODUCTS AND SYSTEM ERRORS IN OUR CUSTOMERS'
SYSTEMS AFTER INSTALLING OUR SOFTWARE COULD DIMINISH DEMAND FOR OUR PRODUCTS AND
RESULT IN LOSS OF REVENUE, DELAY IN MARKET ACCEPTANCE AND INJURY TO OUR
REPUTATION
Complex software products like ours may contain undetected errors or
defects, including year 2000 related errors, that may be detected at any point
in the life of the product. We have in the past discovered software errors in
our products and as a result have experienced delays in shipment of products
during the period required to correct these errors. Errors may be found from
time to time in our new or enhanced products after commencement of commercial
shipments, such as this latest version of our suite, resulting
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<PAGE> 22
in loss of revenue, delay in market acceptance and sales, diversion of
development resources, injury to our reputation or increased warranty and repair
costs.
Our products are generally used in systems with other vendors' products,
and as a result our products must integrate successfully with these existing
systems. System errors, whether caused by our products or those of another
vendor, could adversely affect the market acceptance of our products, and any
necessary revisions could cause us to incur significant expenses.
IF WE BECOME SUBJECT TO PRODUCT LIABILITY LITIGATION, IT COULD BE COSTLY AND
TIME CONSUMING TO DEFEND
Since our products are used for company-wide, integral computer
applications with potentially strong impact on our customers' sales of their
products, errors, defects or other performance problems could result in
financial or other damages to our customers. Although our license agreements
generally contain provisions designed to limit our exposure to product liability
claims, existing or future laws or unfavorable judicial decisions could negate
such limitation of liability provisions. Product liability litigation, even if
it were unsuccessful, would be time consuming and costly to defend.
IF OUR SYSTEMS AND THE SYSTEMS OF OUR KEY SUPPLIERS AND CUSTOMERS ARE NOT YEAR
2000 COMPLIANT, WE COULD INCUR INCREASED COSTS, DELAY OR LOSS OF REVENUE,
DIVERSION OF DEVELOPMENT RESOURCES OR DAMAGE TO OUR REPUTATION
Our products are generally integrated into computer systems involving
sophisticated hardware and complex software products, which may not be year 2000
compliant. The failure of our customers' systems to be year 2000 compliant could
impede the success of applications that we or our partners have developed for
them. Accordingly, known or unknown defects that affect the operation of our
software, including any defects or errors in applications that include our
products, could result in delay or loss of revenue, diversion of development
resources, damage to our reputation, or increased service or warranty costs and
litigation costs.
We have completed our internal audit of our own internal computer and
other systems, and have substantially completed our testing of our software
products and audit of the year 2000 compliance status of our suppliers and
business partners. We have completed our year 2000 investigation and overall
compliance initiative, and the total cost of our year 2000 compliance has not
been substantial. We may experience material unanticipated problems and costs
caused by undetected errors or defects in the technology used in our internal
systems.
IF WE ARE UNABLE TO PROTECT OUR INTELLECTUAL PROPERTY WE MAY LOSE A VALUABLE
ASSET OR INCUR COSTLY LITIGATION TO PROTECT OUR RIGHTS
Our success and ability to compete depend upon our proprietary technology.
We rely on patent, trademark, trade secret and copyright laws to protect our
intellectual property. Despite our efforts to protect our intellectual property,
a third party could copy or otherwise obtain our software or other proprietary
information without authorization, or could develop software competitive to
ours. Our means of protecting our proprietary rights may not be adequate and our
competitors may independently develop similar technology, duplicate our products
or design around our patents or other intellectual property. In addition, the
laws of some foreign countries do not protect our proprietary rights to as great
an extent as do the laws of the United States, and we expect that it will become
more difficult to monitor the use of our products if we increase our
international presence.
We may have to litigate to enforce our intellectual property rights, to
protect our trade secrets or know-how or to determine their scope, validity or
enforceability. Enforcing or defending our proprietary technology is expensive,
could cause the diversion of our resources and may not prove successful. Our
protective measures may prove inadequate to protect our proprietary rights. Any
failure to enforce or protect our rights could cause us to lose a valuable
asset. If we are unable to protect our intellectual property, we may lose a
valuable asset or incur costly litigation to protect our rights.
IF THE FUNCTIONALITY OF OUR PRODUCTS OVERLAPS A COMPETITORS' PRODUCTS AND WE
BECOME SUBJECT TO INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS, THESE CLAIMS COULD
BE COSTLY AND TIME-CONSUMING TO DEFEND, DIVERT MANAGEMENT ATTENTION OR CAUSE
PRODUCT DELAYS
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<PAGE> 23
There has been substantial litigation in the software and Internet
industries regarding intellectual property rights. It is possible that, in the
future, third parties may claim that we or our current or potential future
products infringe their intellectual property. We expect that software product
developers and providers of electronic commerce solutions will increasingly be
subject to infringement claims as the number of products and competitors in our
industry grows and the functionality of products overlaps. Any claims, with or
without merit, could be costly and time-consuming to defend, divert our
management's attention, or cause product delays. If our products were found to
infringe a third party's proprietary rights, we could be required to enter into
royalty or licensing agreements in order to be able to sell our products.
Royalty and licensing agreements, if required, may not be available on terms
acceptable to us or at all.
IF USE OF THE INTERNET DOES NOT CONTINUE TO DEVELOP AND RELIABLY SUPPORT THE
DEMANDS PLACED ON IT BY ELECTRONIC COMMERCE, IT MAY NOT DEVELOP AS A COMMERCIAL
MARKETPLACE, CAUSING US TO FAIL TO ACHIEVE ANTICIPATED SALES GROWTH
Growth in sales of our products and services depends upon the continued
and increased use of the Internet as a medium for commerce and communication.
Although the Internet is experiencing growth in the number of users and traffic,
such rapid growth is a recent phenomenon and may not continue. In addition, the
Internet infrastructure may not be able to support the demands placed on it by
increased usage and bandwidth requirements. Other risks associated with
commercial use of the Internet could slow its growth, including:
- - inadequate security of information distributed over the Internet, resulting
in privacy concerns;
- - inadequate reliability of the network infrastructure;
- - slow development of enabling technologies and complementary products; and
- - limited accessibility and ability to deliver quality service.
In addition, the recent growth in the use of the Internet has caused
frequent periods of poor or slow performance, requiring components of the
Internet infrastructure to be upgraded. Delays in the development or adoption of
new equipment and standards or protocols required to handle increased levels of
Internet activity, or increased government regulation, could cause the Internet
to lose its viability as a commercial medium. If the Internet infrastructure
does not develop sufficiently to address these concerns, it may not develop as a
commercial marketplace, necessary for us to increase sales.
INCREASING GOVERNMENT REGULATION OF THE INTERNET COULD LIMIT THE MARKET FOR OUR
PRODUCTS AND SERVICES, OR IMPOSE ON US GREATER TAX BURDENS OR LIABILITY FOR
TRANSMISSION OF PROTECTED DATA
As electronic commerce and the Internet continue to evolve, we expect that
federal, state and foreign governments will adopt laws and regulations covering
issues such as user privacy, taxation of goods and services provided over the
Internet, pricing, content and quality of products and services. If enacted,
these laws and regulations could limit the market for electronic commerce, and
therefore the market for our products and services. Although many of these
regulations may not apply directly to our business, we expect that laws
regulating the solicitation, collection or processing of personal or consumer
information could indirectly affect our business.
The Telecommunications Act of 1996 prohibits certain types of information
and content from being transmitted over the Internet. The prohibition's scope
and the liability associated with a Telecommunications Act violation are
currently unsettled. The imposition upon us and other software and service
providers of potential liability for information carried on or disseminated
through our applications could require us to implement measures to reduce our
exposure to this liability. These measures could require us to expend
substantial resources or discontinue certain services. In addition, although
substantial portions of the Communications Decency Act (the Act through which
the Telecommunications Act of 1996 imposes criminal penalties) were held to be
unconstitutional, similar legislation may be enacted and upheld in the future.
It is possible that this legislation could expose companies involved in
electronic commerce to liability, which could limit the growth of electronic
commerce generally. Legislation like the Telecommunications Act and the
Communications Decency Act could dampen the growth of Internet usage and
decrease its acceptance as a communications and commercial medium.
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<PAGE> 24
RESTRICTIONS ON EXPORT OF ENCRYPTED TECHNOLOGY COULD CAUSE US TO INCUR DELAYS IN
INTERNATIONAL PRODUCT SALES
Our software utilizes encryption technology, the export of which is
regulated by the United States government. If our export authority is revoked or
modified, if our software is unlawfully exported or if the United States adopts
new legislation restricting export of software and encryption technology, we may
experience delay or reduction in shipment of our products internationally.
Current or future export regulations could limit our ability to distribute our
products outside of the United States. While we take precautions against
unlawful exportation of our software, we cannot effectively control the
unauthorized distribution of software across the Internet.
IF WE DO NOT EXPAND OUR INTERNATIONAL OPERATIONS, WE MAY NOT ACHIEVE ANTICIPATED
SALES GROWTH
In order to increase our international sales opportunities, we will need
to develop further our international sales, professional services and support
organizations, and we will need to form additional relationships with partners
worldwide. If we are unable to expand our international operations and
international sales on a timely basis, we may not achieve anticipated sales
growth. This expansion may be more difficult or take longer than we anticipate,
and we may not be able to successfully market, sell, deliver and support our
products internationally.
INTERNATIONAL EXPANSION COULD BE DIFFICULT AND PRESENT RISKS TO OUR BUSINESS
If successful in our international expansion, we will be subject to a
number of risks associated with international operations, including:
- - longer accounts receivable collection cycles;
- - expenses associated with localizing products for foreign markets;
- - difficulties in managing operations across disparate geographic areas;
- - difficulties in hiring qualified local personnel;
- - difficulties associated with enforcing agreements and collecting receivables
through foreign legal systems; and
- - unexpected changes in regulatory requirements that impose multiple
conflicting tax laws and regulations.
FLUCTUATIONS IN FOREIGN EXCHANGE RATES AND THE POSSIBLE LACK OF FINANCIAL
STABILITY IN FOREIGN COUNTRIES COULD PREVENT OVERSEAS SALES GROWTH
Our international sales are currently U.S. dollar-denominated. As a
result, an increase in the value of the U.S. dollar relative to foreign
currencies could make our products less competitive in international markets. In
the future, we may elect to invoice some of our international customers in local
currencies. Doing so will subject us to fluctuations in exchange rates between
the U.S. dollar and the particular local currency. Our operating results could
also be adversely affected by the seasonality of international sales and the
economic conditions of our overseas markets.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
We develop products in the United States and market our products in
North America, and to a lesser extent in Europe and Asia. As a result, our
financial results could be affected by factors such as changes in foreign
currency exchange rates or weak economic conditions in foreign markets. Because
nearly all of our revenue is currently denominated in U.S. dollars, a
strengthening of the dollar could make our products less competitive in foreign
markets. Our interest income is sensitive to changes in the general level of
U.S. interest rates, particularly since the majority of our investments are in
short-term instruments. Due to the short-term nature of our investments, we do
not believe that we have a material risk exposure. Because some of our debt
arrangements are based on variable rates of interest, our interest expense is
sensitive to changes in the general level of U.S. interest rates. Since these
obligations represent a small percentage of our total capitalization, we believe
that there is not a material risk exposure.
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<PAGE> 25
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
We are currently involved in litigation with a former employee arising
out of the alleged sexual harassment and wrongful termination of the employee.
We have responded to the lawsuit by filing an answer that denies all of the
material allegations. The lawsuit was filed by Susan D. Quinn on June 11, 1997
in the Santa Clara County Superior Court for the State of California, naming us
and one of our former employees as defendants. The case is currently in the
early stages of pre-trial discovery. The lawsuit seeks unspecified monetary
amounts for lost wages and benefits, emotional and physical distress and
punitive damages.
We believe that we have meritorious defenses against the alleged claims,
and intend to defend ourselves vigorously. However, due to the nature of
litigation and the fact that discovery is still in its early stages, we cannot
determine the possible loss, if any, that may ultimately be incurred either in
the context of a trial or as a result of a negotiated settlement. We may also
incur substantial legal fees in this matter. After consideration of the nature
of the claims and facts relating to the litigation, we believe that the
resolution of this matter will not harm our business. However, the results of
these proceedings, including any potential settlement, are uncertain and there
can be no assurance that they will not harm our business.
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS
The effective date of the Registration Statement for the Company's
initial public offering, filed on Form S-1 under the Securities Act of 1933, was
October 6, 1999. The class of securities registered was Common Stock.
Pursuant to the Registration Statement, the Company registered and sold
4,600,000 shares of it's Common Stock to an underwriting syndicate at an initial
public offering price of $14.00 per share. Net proceeds to the Company, before
offering expenses, were $59.9 million or $13.02 per share.
Simultaneous with the closing of the initial public offering, the
Company received an additional $24.0 million from the sale of an aggregate of
1,843,200 shares of common stock at $13.02 per share in private placements to
Dell U.S.A., L.P., a Texas limited partnership ($20.0 million) and Andersen
Consulting LLP ($4.0 million).
We have used, and continue to expect to use, the proceeds from the sale
of stock for general corporate purposes, including working capital. A portion of
the proceeds may also be used to acquire or invest in complementary companies,
product lines, products or technologies. Pending such uses, we have invested the
net proceeds from the sale of stock in investment grade, interest-bearing
securities.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES
Not applicable
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
Calico solicited the written consent of its stockholders as of August
25, 1999 to approve the following:
(1) An amendment to its 1997 Stock Option Plan to increase the number of shares
reserved for issuance under the Option Plan from 9,810,000 shares of our common
stock to 14,715,000 shares of our common stock, subject to automatic increase on
the first day of each fiscal year beginning April 1, 2001 by 5% of the number of
shares of common stock issued and outstanding on the last day of the preceding
fiscal year.
For 16,299,957 Against 0 Abstain 0
(2) The 1999 Employee Stock Purchase Plan with a share reserve of 750,000 shares
of our common stock.
For 16,299,957 Against 0 Abstain 0
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<PAGE> 26
(3) Our reincorporation into the state of Delaware.
For 16,299,957 Against 0 Abstain 0
(4) The form of Indemnity agreement to be entered into by Calico and each of our
officers and directors.
For 16,299,957 Against 0 Abstain 0
ITEM 5. OTHER INFORMATION
Not applicable
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
<TABLE>
<CAPTION>
No. Description
- --- -----------
<S> <C>
2.1* Agreement and Plan of Merger dated as of September 23, 1999 by and
between Calico Commerce, Inc. and Delaware Calico Commerce, Inc.
3.1* Certificate of Incorporation
3.2* Bylaws
3.3* Certificate of Elimination and Certificate of Amendment
10.2* Amended and Restated 1997 Stock Option Plan and forms of agreements
thereunder
10.4* 1999 Employee Stock Purchase Plan
10.5* Form of Indemnity Agreement between Calico Commerce, Inc. and its
directors and officers
10.9* Common Stock Purchase Agreement dated September 3, 1999 between Calico
Commerce, Inc. and Dell U.S.A., L.P.
10.10* Letter Agreement between Andersen Consulting LLP and Calico Commerce,
Inc. dated September 17, 1999
10.11* Common Stock Purchase Agreement dated September 29, 1999 between Calico
Commerce, Inc. and AC II Technology (ACT II) B.V.
10.12* Amendment Number Nine to Investors' Rights Agreement
10.13 Amended and Restated Loan and Security Agreement dated October 15, 1999
between Calico Commerce, Inc. and Comerica Bank-California.
10.14 Office Lease between Metropolitan Life Insurance Company and Calico
Commerce, Inc. dated August 18, 1999.
27.1 Financial Data Schedule (filed only with the electronic submission of
Form 10-Q in accordance with Edgar requirements)
* Incorporated by reference to the exhibit of the same number in the
Registrant's Registration Statement on Form S-1 (File No. 333-82907)
declared effective October 6, 1999
</TABLE>
(b) Reports on Form 8-K
No reports on Form 8-K were filed by the Registrant during the three
months ended September 30, 1999.
26
<PAGE> 27
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Date: November 12, 1999 /s/ Arthur F. Knapp, Jr.
-------------------- --------------------------------
Arthur F. Knapp, Jr.
Vice President and Chief
Financial Officer
(Principal Financial and
Accounting Officer)
27
<PAGE> 28
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
No. Description
- --- -----------
<S> <C>
2.1* Agreement and Plan of Merger dated as of September 23, 1999 by and
between Calico Commerce, Inc. and Delaware Calico Commerce, Inc.
3.1* Certificate of Incorporation
3.2* Bylaws
3.3* Certificate of Elimination and Certificate of Amendment
10.2* Amended and Restated 1997 Stock Option Plan and forms of agreements
thereunder
10.4* 1999 Employee Stock Purchase Plan
10.5* Form of Indemnity Agreement between Calico Commerce, Inc. and its
directors and officers
10.9* Common Stock Purchase Agreement dated September 3, 1999 between Calico
Commerce, Inc. and Dell U.S.A., L.P.
10.10* Letter Agreement between Andersen Consulting LLP and Calico Commerce,
Inc. dated September 17, 1999
10.11* Common Stock Purchase Agreement dated September 29, 1999 between Calico
Commerce, Inc. and AC II Technology (ACT II) B.V.
10.12* Amendment Number Nine to Investors' Rights Agreement
10.13 Amended and Restated Loan and Security Agreement dated October 15, 1999
between Calico Commerce, Inc. and Comerica Bank-California.
10.14 Office Lease between Metropolitan Life Insurance Company and Calico
Commerce, Inc. dated August 18, 1999.
27.1 Financial Data Schedule (filed only with the electronic submission of
Form 10-Q in accordance with Edgar requirements)
* Incorporated by reference to the exhibit of the same number in the
Registrant's Registration Statement on Form S-1 (File No. 333-82907)
declared effective October 6, 1999
</TABLE>
(b) Reports on Form 8-K
No reports on Form 8-K were filed by the Registrant during the three
months ended September 30, 1999.
28
<PAGE> 1
EXHIBIT 10.13
- --------------------------------------------------------------------------------
CALICO COMMERCE, INC.
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
- --------------------------------------------------------------------------------
<PAGE> 2
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
THIS AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT (the "Agreement")
is entered into as of October 15, 1999 (the "Effective Date"), by and between
COMERICA BANK-CALIFORNIA ("Bank") and CALICO COMMERCE, INC., formerly Calico
Technology, Inc. ("Borrower"), with respect to the Revolving Credit Loan and
Security Agreement (Accounts and Inventory), dated as of March 10, 1997, by and
between Bank and Borrower (the "Original Loan Agreement"), as modified by (i)
First Modification to Revolving Credit Loan and Security Agreement, dated as of
June 2, 1997, between Bank and Borrower, (ii) Second Modification to Revolving
Credit Loan and Security Agreement, dated as of July 15, 1997, between Bank and
Borrower, (iii) Third Modification to Revolving Credit Loan and Security
Agreement, dated as of May 14, 1998, between Bank and Borrower, and (iv) Fourth
Modification to Revolving Credit Loan and Security Agreement, dated as of August
19, 1998, between Bank and Borrower (the Original Loan Agreement, as modified,
is referred to as the "Loan Agreement").
RECITALS
Borrower wishes to obtain credit from time to time from Bank, and Bank
desires to extend credit to Borrower. This Agreement sets forth the terms on
which Bank will advance credit to Borrower, and Borrower will repay the amounts
owing to Bank.
AGREEMENT
The parties agree as follows:
1. DEFINITIONS AND CONSTRUCTION.
1.1 Definitions. As used in this Agreement, the following terms
shall have the following definitions:
"Accounts" means all presently existing and hereafter
arising accounts, contract rights, and all other forms of obligations owing to
Borrower arising out of the sale or lease of goods (including, without
limitation, the licensing of software and other technology) or the rendering of
services by Borrower, whether or not earned by performance, and any and all
credit insurance, guaranties, and other security therefor, as well as all
merchandise returned to or reclaimed by Borrower and Borrower's Books relating
to any of the foregoing.
"Advance" or "Advances" means the Revolving Advances and
the Equipment Line Advances.
"Affiliate" means, with respect to any Person, any
Person that owns or controls directly or indirectly such Person, any Person that
controls or is controlled by or is under common control with such Person, and
each of such Person's senior executive officers, directors, and partners.
"Approved Equipment" has the meaning assigned in Section
2.1.
"Bank Expenses" means all: reasonable costs or expenses
(including reasonable attorneys' fees and expenses) incurred in connection with
the preparation, negotiation, administration, and enforcement of the Loan
Documents; reasonable Collateral audit fees; and Bank's reasonable attorneys'
fees and expenses incurred in amending, enforcing or defending the Loan
Documents (including fees and expenses of appeal), incurred before, during and
after an Insolvency Proceeding, whether or not suit is brought.
"Borrower's Books" means all of Borrower's books and
records including: ledgers; records concerning Borrower's assets or liabilities,
the Collateral, business operations or financial condition; and all computer
programs, or tape files, and the equipment, containing such information.
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"Business Day" means any day that is not a Saturday,
Sunday, or other day on which banks in the State of California are authorized or
required to close.
"Capital Expenditures" means, with respect to any
period, the aggregate of all expenditures (whether paid in cash or accrued as
liabilities and including expenditures for capitalized lease obligations) by
Borrower during such period that are required by GAAP to be included in or
reflected by the property, plant, or equipment or similar fixed asset accounts
(or in intangible accounts subject to amortization) in Borrower's balance sheet,
excluding Approved Equipment.
"Closing Date" means the date of this Agreement.
"Code" means the California Uniform Commercial Code.
"Collateral" means the property described on Exhibit A
attached hereto.
"Contingent Obligation" means, as applied to any Person,
any direct or indirect liability, contingent or otherwise, of that Person with
respect to (i) any indebtedness, lease, dividend, letter of credit or other
obligation of another, including, without limitation, any such obligation
directly or indirectly guaranteed, endorsed, co-made or discounted or sold with
recourse by that Person, or in respect of which that Person is otherwise
directly or indirectly liable; (ii) any obligations with respect to undrawn
letters of credit issued for the account of that Person; and (iii) all
obligations arising under any interest rate, currency or commodity swap
agreement, interest rate cap agreement, interest rate collar agreement, or other
agreement or arrangement designated to protect a Person against fluctuation in
interest rates, currency exchange rates or commodity prices; provided, however,
that the term "Contingent Obligation" shall not include endorsements for
collection or deposit in the ordinary course of business. The amount of any
Contingent Obligation shall be deemed to be an amount equal to the stated or
determined amount of the primary obligation in respect of which such Contingent
Obligation is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof as determined by such Person in good
faith; provided, however, that such amount shall not in any event exceed the
maximum amount of the obligations under the guarantee or other support
arrangement.
"Copyrights" means any and all copyright rights,
copyright applications, copyright registrations and like protections in each
work or authorship and derivative work thereof, whether published or unpublished
and whether or not the same also constitutes a trade secret, now or hereafter
existing, created, acquired or held.
"Credit Extension" means each Equipment Advance or any
other extension of credit by Bank for the benefit of Borrower hereunder.
"Current Assets" means, as of any applicable date, all
amounts that should, in accordance with GAAP, be included as current assets on
the consolidated balance sheet of Borrower and its Subsidiaries as at such date.
"Current Liabilities" means, as of any applicable date,
all amounts that should, in accordance with GAAP, be included as current
liabilities on the consolidated balance sheet of Borrower and its Subsidiaries,
as at such date, plus, to the extent not already included therein, all
outstanding Advances made under this Agreement, including all Indebtedness that
is payable upon demand or within one year from the date of determination thereof
unless such Indebtedness is renewable or extendible at the option of Borrower or
any Subsidiary to a date more than one year from the date of determination.
"Daily Balance" means the amount of the Obligations owed
at the end of a given day.
"Debt Service Coverage" means, as of any date of
determination, a ratio of (a) the sum of (i) earnings after tax annualized for
the preceding three (3) months plus interest and non-cash (i.e., depreciation
and amortization) expenses, annualized for the preceding (3) three months to (b)
the sum of (i) current portion of long term debt and capitalized leases plus
(ii) interest expense, annualized for the preceding three months.
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"Effective Tangible Net Worth" means at any date as of
which the amount thereof shall be determined, the sum of the capital stock and
additional paid-in capital plus retained earnings (or minus accumulated deficit)
of Borrower and its Subsidiaries minus intangible assets, plus Subordinated
Debt, on a consolidated basis determined in accordance with GAAP.
"Equipment" means all present and future machinery,
equipment, tenant improvements, furniture, fixtures, vehicles, tools, parts and
attachments in which Borrower has any interest.
"Equipment Advance" or "Equipment Advances" has the
meaning assigned in Section 2.1.
"Equipment Line" means a Credit Extension of up to Three
Million Dollars ($3,000,000), One Million Dollars ($1,000,000) of which shall be
used to pay in fully Borrower's obligations under that certain Master Revolving
Note issued on September 29, 1999 by Borrower to Bank.
"Equipment Line Facility" means the facility under which
Borrower may request Bank to issue Equipment Advances, as specified in Section
2.1 hereof.
"Equipment Maturity Date" means the earliest to occur of
(1) June 30, 2003, (2) the date which is 36 months after the first Amortization
Commencement Date, as defined in Section 2.1, and (3) the date which is 36
months after the Drawdown End Date, as defined in Section 2.1.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended, and the regulations thereunder.
"Event of Default" has the meaning assigned in Article
8.
"GAAP" means generally accepted accounting principles as
in effect from time to time.
"Indebtedness" means (a) all indebtedness for borrowed
money or the deferred purchase price of property or services, including without
limitation reimbursement and other obligations with respect to surety bonds and
letters of credit, (b) all obligations evidenced by notes, bonds, debentures or
similar instruments, (c) all capital lease obligations and (d) all Contingent
Obligations.
"Initial Public Offering" means Borrower's registration
of common stock with the Securities and Exchange Commission, effected by
preparing and filing a registration statement in compliance with the Securities
Act of 1933, as amended, with net proceeds to Borrower of at least $50,000,000.
"Insolvency Proceeding" means any proceeding commenced
by or against any person or entity under any provision of the United States
Bankruptcy Code, as amended, or under any other bankruptcy or insolvency law,
including assignments for the benefit of creditors, formal or informal
moratoria, compositions, extension generally with its creditors, or proceedings
seeking reorganization, arrangement, or other relief.
"Intellectual Property Collateral" means:
(a) Copyrights, Trademarks and Patents;
(b) Any and all trade secrets, and any and all
intellectual property rights in computer software and computer software products
now or hereafter existing, created, acquired or held;
(c) Any and all design rights which may be
available to Borrower now or hereafter existing, created, acquired or held;
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(d) Any and all claims for damages by way of
past, present and future infringement of any of the rights included above, with
the right, but not the obligation, to sue for and collect such damages for said
use or infringement of the intellectual property rights identified above;
(e) All licenses or other rights to use any of
the Copyrights, Patents or Trademarks, and all license fees and royalties
arising from such use to the extent permitted by such license or rights;
(f) All amendments, renewals and extensions of
any of the Copyrights, Trademarks or Patents; and
(g) All proceeds and products of the foregoing,
including without limitation all payments under insurance or any indemnity or
warranty payable in respect of any of the foregoing.
"Inventory" means all present and future inventory in
which Borrower has any interest, including merchandise, raw materials, parts,
supplies, packing and shipping materials, work in process and finished products
intended for sale or lease or to be furnished under a contract of service, of
every kind and description now or at any time hereafter owned by or in the
custody or possession, actual or constructive, of Borrower, including such
inventory as is temporarily out of its custody or possession or in transit and
including any returns upon any accounts or other proceeds, including insurance
proceeds, resulting from the sale or disposition of any of the foregoing and any
documents of title representing any of the above, and Borrower's Books relating
to any of the foregoing.
"Investment" means any beneficial ownership of
(including stock, partnership interest or other securities) any Person, or any
loan, advance or capital contribution to any Person.
"IRC" means the Internal Revenue Code of 1986, as
amended, and the regulations thereunder.
"Lien" means any mortgage, lien, deed of trust, charge,
pledge, security interest or other encumbrance.
"Loan Documents" means, collectively, this Agreement,
the Notes, any other note or notes executed by Borrower, and any other agreement
entered into between Borrower and Bank in connection with this Agreement, all as
amended or extended from time to time.
"Material Adverse Effect" means a material adverse
effect on (i) the business operations or condition (financial or otherwise) of
Borrower and its Subsidiaries taken as a whole or (ii) the ability of Borrower
to repay the Obligations or otherwise perform its obligations under the Loan
Documents.
"Negotiable Collateral" means all of Borrower's present
and future letters of credit of which it is a beneficiary, notes, drafts,
instruments, securities, documents of title, and chattel paper, and Borrower's
Books relating to any of the foregoing.
"Notes" means, collectively, (i) the Variable
Rate-Installment Note, dated as of March 31, 1998, in the original principal
amount of Three Hundred Thirty-Seven Thousand Two Hundred Thirty-Seven Dollars
and Eighteen Cents ($337,237.18), issued by Borrower to the order of Bank, (ii)
the Variable Rate-Installment Note, dated as of April 23, 1998, in the original
principal amount of One Hundred Sixty-Two Thousand Seven Hundred Sixty-Two
Dollars and Eighty-Two Cents ($162,762.82), issued by Borrower to the order of
Bank, (iii) the Variable Rate-Installment Note, dated as of September 15, 1998,
in the original principal amount of Two Hundred Fifty Thousand Dollars
($250,000), issued by Borrower to the order of Bank, and (iv) the Variable
Rate-Installment Note, dated as of February 9, 1999, in the original principal
amount of Two Hundred Fifty Thousand Dollars ($250,000), issued by Borrower to
the order of Bank, as such notes may be amended and restated during the term
hereof.
"Notes Maturity Date" means the maturity dates as
specified in the respective Notes.
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"Obligations" means all debt, principal, interest, fees,
Bank Expenses and other amounts owed to Bank by Borrower pursuant to this
Agreement or any other agreement, including the Notes, any other notes executed
by Borrower in favor of the Bank, whether absolute or contingent, due or to
become due, now existing or hereafter arising, including any interest that
accrues after the commencement of an Insolvency Proceeding and including any
debt, liability, or obligation owing from Borrower to others that Bank may have
obtained by assignment or otherwise.
"Patents" means all patents, patent applications and
like protections including without limitation improvements, divisions,
continuations, renewals, reissues, extensions and continuations-in-part of the
same.
"Permitted Indebtedness" means:
(a) Indebtedness of Borrower in favor of Bank
arising under this Agreement or any other Loan Document;
(b) Indebtedness existing on March 10, 1997, and
renewals and extensions of such Indebtedness;
(c) Indebtedness secured by a lien described in
clause (c) of the defined term "Permitted Liens," provided such Indebtedness
does not exceed the lesser of the cost or fair market value of the equipment
financed with such Indebtedness; and
(d) Subordinated Debt.
"Permitted Investment" means marketable direct
obligations issued or unconditionally guaranteed by the United States of America
or any agency or any State thereof maturing within one (1) year from the date of
acquisition thereof, (ii) commercial paper maturing no more than one (1) year
from the date of creation thereof and currently having rating of at least A-2 or
P-2 from either Standard & Poor's Corporation or Moody's Investors Service,
(iii) certificates of deposit maturing no more than one (1) year from the date
of investment therein issued by Bank, (iv) Bank's money market accounts, (v) any
Investments permitted by Borrower's investment policy, which has been approved
by Borrower's board of directors and Bank, in the form submitted to Bank and
attached hereto as Exhibit F, and (vi) the Subsidiaries listed on the Schedule
submitted to Bank as of the Closing Date, provided that, in any given year,
Borrower's aggregate investments in such Subsidiaries, foreign and otherwise,
shall not exceed ten percent (10%) of Borrower's net worth as of the last day of
such year.
"Permitted Liens" means the following:
(a) Liens for taxes, fees, assessments or other
governmental charges or levies, either not delinquent or being contested in good
faith by appropriate proceedings, provided the same have no priority over any of
Bank's security interests;
(b) Liens (i) upon or in any equipment acquired
or held by Borrower or any of its Subsidiaries to secure the purchase price of
such equipment or indebtedness incurred solely for the purpose of financing the
acquisition of such equipment, or (ii) existing on such equipment at the time of
its acquisition, provided that the Lien is confined solely to the property so
acquired and improvements thereon, and the proceeds of such equipment;
(c) Liens incurred in connection with the
extension, renewal or refinancing of the indebtedness secured by Liens of the
type described in clauses (a) through (c) above, provided that any extension,
renewal or replacement Lien shall be limited to the property encumbered by the
existing Lien and the principal amount of the indebtedness being extended,
renewed or refinanced does not increase.
"Person" means any individual, sole proprietorship,
partnership, limited liability company, joint venture, trust, unincorporated
organization, association, corporation, institution, public benefit corporation,
firm, joint stock company, estate, entity or governmental agency.
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"Prime Rate" means the variable rate of interest, per
annum, most recently announced by Bank, as its "prime rate," whether or not such
announced rate is the lowest rate available from Bank.
"Quick Assets" means, at any date as of which the amount
thereof shall be determined, the unrestricted cash and cash-equivalents,
accounts receivable and short-term marketable securities, of Borrower determined
in accordance with GAAP.
"Responsible Officer" means each of the Chief Executive
Officer, the Chief Operating Officer, the Chief Financial Officer and the
Controller of Borrower.
"Security Agreement" has the meaning specified in
Section 3(c).
"Subordinated Debt" means any debt incurred by Borrower
that is subordinated to the debt owing by Borrower to Bank on terms reasonably
acceptable to Bank (and identified as being such by Borrower and Bank).
"Subsidiary" means any corporation or partnership in
which (i) any general partnership interest or (ii) more than 50% of the stock of
which by the terms thereof ordinary voting power to elect the Board of
Directors, managers or trustees of the entity shall, at the time as of which any
determination is being made, is owned by Borrower, either directly or through an
Affiliate.
"Total Liabilities" means at any date as of which the
amount thereof shall be determined, all obligations that should, in accordance
with GAAP be classified as liabilities on the consolidated balance sheet of
Borrower, including in any event all Indebtedness.
"Trademarks" means any trademark and servicemark rights,
whether registered or not, applications to register and registrations of the
same and like protections, and the entire goodwill of the business of Borrower
connected with and symbolized by such trademarks.
1.2 Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP and all calculations
made hereunder shall be made in accordance with GAAP. When used herein, the
terms "financial statements" shall include the notes and schedules thereto.
2. LOAN AND TERMS OF PAYMENT.
2.1 Equipment Line Facility.
(a) Drawdown of Equipment Advances. At any time prior to
the earlier of (i) June 30, 2000 and (ii) the date on which the aggregate
outstanding Equipment Advances equals the Equipment Line (the "Drawdown End
Date"), Borrower may from time to time request advances (each an "Equipment
Advance" and, collectively, the "Equipment Advances") from Bank in an aggregate
principal amount of up to the Equipment Line. Bank will credit the amount of
Equipment Advances made under this Section 2.1 to Borrower's deposit account.
The Equipment Advances shall be used to purchase Equipment with an invoice date
which is within 90 days of the corresponding Equipment Advance and approved by
Bank ("Approved Equipment") and shall not exceed One Hundred Percent (100%) of
the cost of such Approved Equipment, excluding installation expense, freight
discounts, warranty charges, taxes and other soft costs. Amounts borrowed
pursuant to this Section 2.1 may not be reborrowed once repaid. Notwithstanding
any of the foregoing, the first advance under this Section 2.1 (which shall be
treated as an Equipment Advance), shall be in the amount of $1,000,000 and shall
be used to pay in full Borrower's obligations under that certain Master
Revolving Note issued on September 29, 1999 by Borrower to Bank (the "September
Note"). This Section 2.1 replaces the September Note, and the September Note
shall have no further force and effect after the date of this Agreement.
(b) Payments.
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(i) Interest shall accrue from the date of each
Equipment Advance, and shall be payable on the first calendar day of each month
(each a "monthly payment date") through the Drawdown End Date.
(ii) The next payment date after a date on which
the aggregate outstanding and unamortized Equipment Advances equal or exceed Two
Hundred Fifty Thousand Dollars ($250,000) shall be considered an "Amortization
Commencement Date". The Equipment Advance or Equipment Advances that are
outstanding on each Amortization Commencement Date shall be payable in equal
monthly installments of principal, plus accrued interest, on the first calendar
day of each month beginning on the first monthly payment date after the
applicable Amortization Commencement Date and continuing until the earlier to
occur of (i) 36 months after the applicable Amortization Commencement Date and
(ii) the Equipment Maturity Date.
(iii) The Equipment Advance or Equipment
Advances that are outstanding and unamortized on the Drawdown End Date shall be
payable in equal monthly installments of principal, plus accrued interest, on
the first calendar day of each month beginning on the first monthly payment date
after the Drawdown End Date. The entire unpaid principal balance and all accrued
but unpaid interest under this Agreement shall be due and payable on the
Equipment Maturity Date.
(c) Requests. When Borrower desires to obtain an
Equipment Advance, it shall notify Bank (which notice shall be irrevocable) by
facsimile transmission received no later than 3:00 p.m. California time one (1)
Business Day before the day on which the Equipment Advance is to be made. Such
notice shall be in substantially the form of Exhibit B. The notice shall be
signed by a Responsible Officer and include copies of the invoices for the
Approved Equipment to be financed.
2.2 Interest Rates, Payments, and Calculations.
(a) Interest Rates Except as set forth in Section
2.2(b), the Equipment Advances shall bear interest, on the outstanding daily
balance thereof, at a floating rate equal to the Prime Rate plus one-half
percent (0.50%).
(b) Default Rate. All Obligations shall bear interest,
from and after the occurrence and during the continuance of an Event of Default,
at a rate equal to three (3) percentage points above the interest rate
applicable immediately prior to the occurrence of an Event of Default.
(c) Payments. Interest shall be due and payable on the
first calendar day of each month during the term hereof. Bank shall, at its
option, charge such interest and all Bank Expenses against any of Borrower's
deposit accounts. Any interest not paid when due shall be compounded by becoming
a part of the Obligations, and such interest shall thereafter accrue interest at
the rate then applicable hereunder. Bank shall deliver to Borrower statements of
account in the ordinary course of business reflecting charges made hereunder.
(d) Computation. In the event the Prime Rate is changed
from time to time hereafter, the applicable rate of interest hereunder shall be
increased or decreased effective as of the day the Prime Rate is changed, by an
amount equal to such change in the Prime Rate. All interest chargeable under the
Loan Documents shall be computed on the basis of a three hundred sixty (360) day
year for the actual number of days elapsed.
2.3 Crediting Payments. Prior to the occurrence of an Event of
Default, Bank shall credit a wire transfer of funds, check or other item of
payment to such deposit account or Obligation as Borrower specifies. After the
occurrence of an Event of Default, the receipt by Bank of any wire transfer of
funds, check, or other item of payment shall be credited as Bank determines in
its sole discretion. The receipt of any wire transfer of funds, check or other
item of payment by Bank shall not be considered a payment on account until such
wire transfer, check or other item of payment is honored when presented for
payment, in which event, it shall be deemed to have been paid to Bank two (2)
calendar days after the date Bank actually receives such wire transfer, check or
other item of payment. Notwithstanding anything to the contrary contained
herein, any wire transfer or payment received by Bank after 12:00 noon Pacific
time shall be deemed to have been received by Bank as of the opening of business
on the immediately following Business Day. Whenever any payment to Bank under
the Loan Documents would
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otherwise be due (except by reason of acceleration) on a date that is not a
Business Day, such payment shall instead be due on the next Business Day, and
additional fees or interest, as the case may be, shall accrue and be payable for
the period of such extension.
2.4 Term. This Agreement shall terminate on the Equipment
Maturity Date. Upon request by Borrower, Bank and Borrower shall terminate this
Agreement and Bank shall have no further obligation to make Credit Extensions to
Borrower, provided that (i) Bank receives three (3) days prior written notice
thereof, and (ii) all Obligations have been repaid in full. Notice of such
termination by Borrower shall be effectuated by mailing of a registered or
certified letter not less than thirty (30) days prior to the effective date of
such termination, addressed to the Bank at the address set forth herein and the
termination shall be effective as of the date so fixed in such notice.
Notwithstanding the foregoing, Bank shall have the right to terminate its
obligation to make Credit Extensions under this Agreement immediately and
without notice upon the occurrence and during the continuance of an Event of
Default. Notwithstanding termination, Bank's Lien on the Collateral shall remain
in effect for so long as any Obligations are outstanding.
After termination and when Bank has received payment in full of the
Obligations, including the Obligations under the Notes, Bank shall reassign to
Borrower all Collateral held by Bank, and shall execute a termination of all
security agreements and security interests given by Borrower to Bank, upon the
execution and delivery of mutual general releases.
3. CONDITIONS OF LOANS. The obligation of Bank to make each Credit
Extension is subject to the following conditions:
(a) timely receipt by Bank of the Payment/Advance Form
as provided in Section 2.1;
(b) the representations and warranties contained in
Section 5 shall be true and correct in all material respects on and as of the
date of such Payment/Advance Form, and on the effective date of each Credit
Extension as though made at and as of each such date, and no Event of Default
shall have occurred and be continuing, or would result from such Credit
Extension (provided, however, that those representations and warranties
expressly referring to another date shall be true, correct and complete in all
material respects as of such date). The making of each Credit Extension shall be
deemed to be a representation and warranty by Borrower on the date of such
Credit Extension as to the accuracy of the facts referred to in this section;
(c) Borrower's and FirstFloor Software, Inc.'s grant to
Bank of a first priority security interest in all of its intellectual property
rights as security for the Obligations, pursuant to a Collateral Assignment,
Patent Mortgage and Security Agreement substantially in the form attached hereto
as Exhibit E (the "Security Agreement"); and
(d) Borrower's grant to Bank of a warrant substantially
in the form attached hereto as Exhibit F (the "Warrant").
4. CREATION OF SECURITY INTEREST.
4.1 Grant of Security Interest. Borrower grants and pledges to
Bank a continuing security interest in all presently existing and hereafter
acquired or arising Collateral in order to secure prompt repayment of any and
all Obligations and in order to secure prompt performance by Borrower of each of
its covenants and duties under the Loan Documents. Such security interest
constitutes a valid, first priority security interest in the presently existing
Collateral, and will constitute a valid, first priority security interest in
Collateral acquired after the date hereof.
4.2 Delivery of Additional Documentation Required. Borrower
shall from time to time execute and deliver to Bank, at the request of Bank, all
Negotiable Collateral, all financing statements and other documents that Bank
may reasonably request, in form satisfactory to Bank, to perfect and continue
perfected Bank's security interests in the Collateral and in order to fully
consummate all of the transactions contemplated under the Loan Documents.
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4.3 Right to Inspect. Bank (through any of its officers,
employees, or agents) shall have the right, upon reasonable prior notice, from
time to time during Borrower's usual business hours but no more than once a year
(unless an Event of Default has occurred and is continuing), to inspect
Borrower's Books and to make copies thereof and to check, test, and appraise the
Collateral in order to verify Borrower's financial condition or the amount,
condition of, or any other matter relating to, the Collateral.
5. REPRESENTATIONS AND WARRANTIES.
Borrower represents and warrants as follows:
5.1 Due Organization and Qualification. Borrower and each
Subsidiary is a corporation duly existing under the laws of its state of
incorporation and qualified and licensed to do business in any state in which
the conduct of its business or its ownership of property requires that it be so
qualified.
5.2 Due Authorization; No Conflict. The execution, delivery, and
performance of the Loan Documents are within Borrower's powers, have been duly
authorized, and are not in conflict with nor constitute a breach of any
provision contained in Borrower's Articles of Incorporation or Bylaws, nor will
they constitute an event of default under any material agreement to which
Borrower is a party or by which Borrower is bound. Borrower is not in default
under any agreement to which it is a party or by which it is bound, which
default could have a Material Adverse Effect.
5.3 No Prior Encumbrances. Borrower has good and indefeasible
title to the Collateral, free and clear of Liens, except for Permitted Liens.
5.4 Bona Fide Accounts. The Accounts are bona fide existing
obligations. The property giving rise to such Accounts has been delivered to the
account debtor or to the account debtor's agent for immediate shipment to and
unconditional acceptance by the account debtor.
5.5 Merchantable Inventory. All Inventory is in all material
respects of good and marketable quality, free from all material defects, except
for Inventory for which adequate reserves have been made.
5.6 Intellectual Property. Borrower is the sole owner of the
Intellectual Property, except for non-exclusive licenses granted by Borrower to
its customers in the ordinary course of business. Each of the Patents is valid
and enforceable, and no part of the Intellectual Property has been judged
invalid or unenforceable, in whole or in part, and no claim has been made that
any part of the Intellectual Property violates the rights of any third party.
5.7 Name; Location of Chief Executive Office. Except for the
name Calico Technology, Inc., Borrower has not done business under any name
other than that specified on the signature page hereof. The chief executive
office of Borrower is located at the address indicated in Section 10 hereof.
5.8 Litigation. There are no actions or proceedings pending by
or against Borrower or any Subsidiary before any court or administrative agency
in which an adverse decision could have a Material Adverse Effect or a material
adverse effect on Borrower's interest or Bank's security interest in the
Collateral.
5.9 No Material Adverse Change in Financial Statements. All
consolidated financial statements related to Borrower and any Subsidiary that
are delivered by Borrower to Bank fairly present in all material respects
Borrower's consolidated financial condition as of the date thereof and
Borrower's consolidated results of operations for the period then ended. There
has not been a material adverse change in the consolidated financial condition
of Borrower since the date of the most recent of such financial statements
submitted to Bank.
5.10 Solvency, Payment of Debts. Borrower is solvent and able to
pay its debts (including trade debts) as they mature.
5.11 Regulatory Compliance. Borrower and each Subsidiary have
met the minimum funding requirements of ERISA with respect to any employee
benefit plans subject to ERISA. No event has occurred resulting from Borrower's
failure to comply with ERISA that is reasonably likely to result in Borrower's
incurring
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any liability that could have a Material Adverse Effect. Borrower is not an
"investment company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940. Borrower is not engaged
principally, or as one of the important activities, in the business of extending
credit for the purpose of purchasing or carrying margin stock (within the
meaning of Regulations T and U of the Board of Governors of the Federal Reserve
System). Borrower has complied with all the provisions of the Federal Fair Labor
Standards Act. Borrower has not violated any statutes, laws, ordinances or rules
applicable to it, violation of which could have a Material Adverse Effect.
5.12 Environmental Condition. None of Borrower's or any
Subsidiary's properties or assets has ever been used by Borrower or any
Subsidiary or, to the best of Borrower's knowledge, by previous owners or
operators, in the disposal of, or to produce, store, handle, treat, release, or
transport, any hazardous waste or hazardous substance other than in accordance
with applicable law; to the best of Borrower's knowledge, none of Borrower's
properties or assets has ever been designated or identified in any manner
pursuant to any environmental protection statute as a hazardous waste or
hazardous substance disposal site, or a candidate for closure pursuant to any
environmental protection statute; no lien arising under any environmental
protection statute has attached to any revenues or to any real or personal
property owned by Borrower or any Subsidiary; and neither Borrower nor any
Subsidiary has received a summons, citation, notice, or directive from the
Environmental Protection Agency or any other federal, state or other
governmental agency concerning any action or omission by Borrower or any
Subsidiary resulting in the releasing, or otherwise disposing of hazardous waste
or hazardous substances into the environment.
5.13 Taxes. Borrower and each Subsidiary has filed or caused to
be filed all tax returns required to be filed, and has paid, or has made
adequate provision for the payment of, all taxes reflected therein.
5.14 Subsidiaries. Borrower does not own any stock, partnership
interest or other equity securities of any Person, except for Permitted
Investments.
5.15 Government Consents. Borrower and each Subsidiary has
obtained all consents, approvals and authorizations of, made all declarations or
filings with, and given all notices to, all governmental authorities that are
necessary for the continued operation of Borrower's business as currently
conducted, the failure to obtain which could have a Material Adverse Effect.
5.16 Year 2000. Borrower and its Subsidiaries have reviewed the
areas within their operations and business which could be adversely affected by,
and have developed or are developing a program to address on a timely basis, the
Year 2000 Problem and have made related appropriate inquiry of material
suppliers, customers and vendors, and based on such review and program, the Year
2000 Problem will not have a Material Adverse Effect upon its financial
condition, operations or business as now conducted. "Year 2000 Problem" means
the possibility that any computer applications or equipment used by Borrower may
be unable to recognize and properly perform date sensitive functions involving
certain dates prior to and any dates on or after December 31, 1999.
5.17 Full Disclosure. No representation, warranty or other
statement made by Borrower in any certificate or written statement furnished to
Bank contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements contained in such
certificates or statements not misleading.
6. AFFIRMATIVE COVENANTS. Borrower covenants and agrees that, until
payment in full of all outstanding Obligations, and for so long as Bank may have
any commitment to make a Credit Extension hereunder, Borrower shall do all of
the following:
6.1 Good Standing. Borrower shall maintain its and each of its
Subsidiaries' corporate existence in its jurisdiction of incorporation and
maintain qualification in each jurisdiction in which the failure to so qualify
could have a Material Adverse Effect. Borrower shall maintain, and shall cause
each of its Subsidiaries to maintain in force all licenses, approvals and
agreements, the loss of which could have a Material Adverse Effect.
6.2 Government Compliance. Borrower shall meet, and shall cause
each Subsidiary to meet, the minimum funding requirements of ERISA with respect
to any employee benefit plans subject to ERISA. Borrower shall comply, and shall
cause each Subsidiary to comply, with all statutes, laws, ordinances and
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government rules and regulations to which it is subject, noncompliance with
which could have a Material Adverse Effect or a material adverse effect on the
Collateral or the priority of Bank's Lien on the Collateral.
6.3 Financial Statements, Reports, Certificates. Borrower shall
deliver to Bank: (a) if Borrower does not maintain at least $20,000,000 of
unrestricted cash, cash equivalents and short-term marketable securities on its
balance sheet at all times, (1) as soon as available, but in any event within
thirty (30) days after the end of each calendar month, a company prepared
consolidated balance sheet and income statement covering Borrower's consolidated
operations during such period, in a form acceptable to Bank and certified by a
Responsible Officer and (2) as soon as available, but in any event within ninety
(90) days after the end of Borrower's fiscal year, audited consolidated
financial statements of Borrower prepared in accordance with GAAP, consistently
applied, together with an unqualified opinion on such financial statements of an
independent certified public accounting firm reasonably acceptable to Bank; (b)
promptly upon receipt of notice thereof, a report of any legal actions pending
or threatened against Borrower or any Subsidiary that could result in damages or
costs to Borrower or any Subsidiary of Two Hundred Fifty Thousand Dollars
($250,000) or more; (c) such budgets, sales projections, operating plans or
other financial information as Bank may reasonably request from time to time
generally prepared by Borrower in the ordinary course of business; (d) within
five (5) days of becoming available, but in any event within forty-five (45)
days after the end of each fiscal quarter, the report on Form 10-Q filed or
required to be filed with the Securities and Exchange Commission; and (e) within
five (5) days of becoming available, but in any event within ninety (90) days
after the end of each fiscal year, the report on Form 10-K filed or required to
be filed with the Securities and Exchange Commission.
Borrower shall deliver to Bank with the monthly financial statements a
Compliance Certificate signed by a Responsible Officer in substantially the form
of Exhibit C hereto.
6.4 Inventory; Returns. Borrower shall keep all Inventory in
good and marketable condition, free from all material defects except for
Inventory for which adequate reserves have been made. Returns and allowances, if
any, as between Borrower and its account debtors shall be on the same basis and
in accordance with the usual customary practices of Borrower, as they exist at
the time of the execution and delivery of this Agreement. Borrower shall
promptly notify Bank of all returns and recoveries and of all disputes and
claims, where the return, recovery, dispute or claim involves more than One
Million Dollars ($1,000,000).
6.5 Taxes. Borrower shall make, and shall cause each Subsidiary
to make, due and timely payment or deposit of all material federal, state, and
local taxes, assessments, or contributions required of it by law, and will
execute and deliver to Bank, on demand, appropriate certificates attesting to
the payment or deposit thereof; and Borrower will make, and will cause each
Subsidiary to make, timely payment or deposit of all material tax payments and
withholding taxes required of it by applicable laws, including, but not limited
to, those laws concerning F.I.C.A., F.U.T.A., state disability, and local,
state, and federal income taxes, and will, upon request, furnish Bank with proof
satisfactory to Bank indicating that Borrower or a Subsidiary has made such
payments or deposits; provided that Borrower or a Subsidiary need not make any
payment if the amount or validity of such payment is contested in good faith by
appropriate proceedings and is reserved against (to the extent required by GAAP)
by Borrower.
6.6 Insurance.
(a) Borrower, at its expense, shall keep the Collateral
insured against loss or damage by fire, theft, explosion, sprinklers, and all
other hazards and risks, and in such amounts, as ordinarily insured against by
other owners in similar businesses conducted in the locations where Borrower's
business is conducted on the date hereof. Borrower shall also maintain insurance
relating to Borrower's ownership and use of the Collateral in amounts and of a
type that are customary to businesses similar to Borrower's.
(b) All such policies of insurance shall be in such
form, with such companies, and in such amounts as reasonably satisfactory to
Bank. All such policies of property insurance shall contain a lender's loss
payable endorsement, in a form satisfactory to Bank, showing Bank as an
additional loss payee thereof and all liability insurance policies shall show
the Bank as an additional insured, and shall specify that the insurer must give
at least twenty (20) days notice to Bank before canceling its policy for any
reason. Upon Bank's request, Borrower shall deliver to Bank certified copies of
such policies of insurance and evidence of the payments of all premiums
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therefor. All proceeds payable under any such policy shall, at the option of
Bank, be payable to Bank to be applied on account of the Obligations.
6.7 Year 2000 Compliance. Borrower shall perform all acts
reasonably necessary to ensure that (a) Borrower and any business in which
Borrower holds a substantial interest, and (b) all customers, suppliers and
vendors that are material to Borrower's business, become Year 2000 Compliant in
a timely manner to the extent that failure to be Year 2000 Compliant could have
a Material Adverse Effect. Such acts shall include, without limitation,
performing a comprehensive review and assessment of all Borrower's systems and
adopting a detailed plan, with itemized budget, for the remediation, monitoring
and testing of such systems. As used in this paragraph, "Year 2000 Compliant"
shall mean, in regard to any entity, that all software, hardware, firmware,
equipment, goods or systems utilized by or material to the business operations
or financial condition of such entity, will properly perform date sensitive
functions before, during and after the year 2000. Borrower shall immediately
upon request, provide to Bank such certifications or other evidence of
Borrower's compliance with the terms of this paragraph as Bank may from time to
time require.
6.8 Principal Depository and Deposit Requirements. Borrower
shall maintain its principal depository and operating accounts with Bank.
6.9 Quick Ratio. Borrower shall maintain, as of the last day of
each quarter, a ratio of Quick Assets to Current Liabilities (excluding, for
this purpose, deferred revenue) of not less than 2.50 to 1.00.
6.10 Effective Tangible Net Worth. Borrower shall maintain a
minimum, as of the last day of each quarter, an Effective Tangible Net Worth of
at least One Million Dollars ($1,000,000) until October 31, 1999; on and after
October 31, 1999, Borrower shall maintain, as of the last day of each quarter,
an Effective Tangible Net Worth of at least Fifteen Million Dollars
($15,000,000) plus eighty percent (80%) of the new equity raised after October
31, 1999 and 75% of net profit after tax. Notwithstanding the foregoing, if
Borrower does not retain a balance of unrestricted cash, cash equivalents and
short-term marketable securities of at least $20,000,000 on its balance sheet,
this covenant shall be measured on a monthly basis.
6.11 Capital Expenditures. Borrower shall not make Capital
Expenditures in excess of Eight Million Dollars ($8,000,000) during any twelve
(12) month period.
6.12 Liquidity; Debt Service Coverage. Borrower shall maintain,
as of the last day of each quarter, a ratio of the sum of (i) unrestricted cash,
cash equivalents and short-term marketable securities on such date plus (ii) 60%
of Borrower's Accounts to the outstanding principal amount of all the
Obligations (Borrower's "Liquidity") of not less than 2.00 to 1.00.
Notwithstanding the foregoing, after Borrower has maintained a Debt Service
Coverage of at least 1.50 to 1.00 for two consecutive quarters, Borrower
thereafter shall maintain such Debt Service Coverage of at least 1.50 to 1.00 as
of the last day of each fiscal quarter in lieu of the liquidity covenant.
Notwithstanding the foregoing, if Borrower does not retain a balance of
unrestricted cash, cash equivalents and short-term marketable securities of at
least $20,000,000 on its balance sheet, the Liquidity covenant shall be measured
on a monthly basis.
6.13 Profitability. Borrower shall not permit its losses for any
two consecutive fiscal quarters (with losses calculated in accordance with GAAP,
but excluding (i) one time non-cash charges for acquisitions that Borrower makes
with its own capital stock, (ii) amortization of goodwill and (iii) non-cash
stock compensation charges) to exceed Thirteen Million Dollars ($13,000,000).
6.14 Registration of Intellectual Property Rights.
(a) Borrower shall execute and deliver such additional
instruments and documents from time to time as Bank shall reasonably request to
perfect Bank's security interest in the Intellectual Property Collateral.
(b) Borrower shall (i) protect, defend and maintain the
validity and enforceability of the Trademarks, Patents and Copyrights, (ii) use
its best efforts to detect infringements of the Trademarks, Patents and
Copyrights and promptly advise Bank in writing of material infringements
detected and (iii) not allow any
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material Trademarks, Patents or Copyrights to be abandoned, forfeited or
dedicated to the public without the written consent of Bank, which shall not be
unreasonably withheld.
(c) Bank may audit Borrower's Intellectual Property
Collateral to confirm compliance with this Section 6.14, provided such audit may
not occur more often than once per year, unless an Event of Default has occurred
and is continuing. Bank shall have the right, but not the obligation, to take,
at Borrower's sole expense, any actions that Borrower is required under this
Section 6.14 to take but which Borrower fails to take, after fifteen (15) days'
notice to Borrower. Borrower shall reimburse and indemnify Bank for all
reasonable costs and reasonable expenses incurred in the reasonable exercise of
its rights under this Section 6.14.
6.15 Further Assurances. At any time and from time to time
Borrower shall execute and deliver such further instruments and take such
further action as may reasonably be requested by Bank to effect the purposes of
this Agreement.
7. NEGATIVE COVENANTS. Borrower covenants and agrees that, so long as
any credit hereunder shall be available and until payment in full of the
outstanding Obligations or for so long as Bank may have any commitment to make
any Credit Extensions, Borrower will not do any of the following:
7.1 Dispositions. Convey, sell, lease, transfer or otherwise
dispose of (collectively, a "Transfer"), or permit any of its Subsidiaries to
Transfer, all or any part of its business or property, other than: (i) Transfers
of Inventory in the ordinary course of business; (ii) Transfers of non-exclusive
licenses and similar arrangements for the use of the property of Borrower or its
Subsidiaries; or (iii) Transfers of surplus, worn-out or obsolete Equipment.
7.2 Change in Business. Engage in any business, or permit any of
its Subsidiaries to engage in any business, other than the businesses currently
engaged in by Borrower and any business substantially similar or related thereto
(or incidental thereto). Borrower will not, without thirty (30) days prior
written notification to Bank, relocate its chief executive office.
7.3 Mergers or Acquisitions. Merge or consolidate, or permit any
of its Subsidiaries to merge or consolidate, with or into any other business
organization, or acquire, or permit any of its Subsidiaries to acquire, all or
substantially all of the capital stock or property of another Person.
7.4 Indebtedness. Create, incur, assume or be or remain liable
with respect to any Indebtedness, or permit any Subsidiary so to do, other than
Permitted Indebtedness.
7.5 Encumbrances. Create, incur, assume or suffer to exist any
Lien with respect to any of its property, or assign or otherwise convey any
right to receive income, including the sale of any Accounts, or permit any of
its Subsidiaries so to do, except for Permitted Liens.
7.6 Distributions. Pay any dividends or make any other
distribution or payment on account of or in redemption, retirement or purchase
of any capital stock, except that Borrower may repurchase the stock of former
employees pursuant to stock repurchase agreements as long as an Event of Default
does not exist prior to such repurchase or would not exist after giving effect
to such repurchase.
7.7 Investments. Directly or indirectly acquire or own, or make
any Investment in or to any Person, or permit any of its Subsidiaries so to do,
other than Permitted Investments.
7.8 Transactions with Affiliates. Directly or indirectly enter
into or permit to exist any material transaction with any Affiliate of Borrower
except for transactions that are in the ordinary course of Borrower's business,
upon fair and reasonable terms that are no less favorable to Borrower than would
be obtained in an arm's length transaction with a nonaffiliated Person.
7.9 Subordinated Debt. Make any payment in respect of any
Subordinated Debt, or permit any of its Subsidiaries to make any such payment,
except in compliance with the terms of such Subordinated Debt,
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or amend any provision contained in any documentation relating to the
Subordinated Debt without Bank's prior written consent.
7.10 Inventory. Store the Inventory with a bailee, warehouseman,
or similar party unless Bank has received a pledge of the warehouse receipt
covering such Inventory; provided, however, that Borrower may deposit software
code in escrow for customers in the ordinary course of business. Except for
Inventory sold in the ordinary course of business and except for such other
locations as Bank may approve in writing, Borrower shall keep the Inventory only
at the location set forth in Section 10 hereof and such other locations of which
Borrower gives Bank prior written notice and as to which Borrower signs and
files a financing statement where needed to perfect Bank's security interest.
7.11 Compliance. Become an "investment company" or be controlled
by an "investment company," within the meaning of the Investment Company Act of
1940, or become principally engaged in, or undertake as one of its important
activities, the business of extending credit for the purpose of purchasing or
carrying margin stock, or use the proceeds of any Credit Extension for such
purpose. Fail to meet the minimum funding requirements of ERISA, permit a
Reportable Event or Prohibited Transaction, as defined in ERISA, to occur, fail
to comply with the Federal Fair Labor Standards Act or violate any law or
regulation, which violation could have a Material Adverse Effect or a material
adverse effect on the Collateral or the priority of Bank's Lien on the
Collateral, or permit any of its Subsidiaries to do any of the foregoing.
8. EVENTS OF DEFAULT. Any one or more of the following events shall
constitute an Event of Default by Borrower under this Agreement:
8.1 Payment Default. If Borrower fails to pay, when due, any of
the Obligations;
8.2 Covenant Default. If Borrower fails to perform any
obligation under Article 6 or violates any of the covenants contained in Article
7 of this Agreement, or fails or neglects to perform, keep, or observe any other
material term, provision, condition, covenant, or agreement contained in this
Agreement, in any of the Loan Documents, or in any other present or future
agreement between Borrower and Bank;
8.3 Material Adverse Change. If there occurs a material adverse
change in Borrower's business or financial condition, or if there is a material
impairment of the prospect of repayment of any portion of the Obligations or a
material impairment of the value or priority of Bank's security interests in the
Collateral;
8.4 Attachment. If any material portion of Borrower's assets is
attached, seized, subjected to a writ or distress warrant, or is levied upon, or
comes into the possession of any trustee, receiver or person acting in a similar
capacity and such attachment, seizure, writ or distress warrant or levy has not
been removed, discharged or rescinded within ten (10) days, or if Borrower is
enjoined, restrained, or in any way prevented by court order from continuing to
conduct all or any material part of its business affairs, or if a judgment or
other claim becomes a lien or encumbrance upon any material portion of
Borrower's assets, or if a notice of lien, levy, or assessment is filed of
record with respect to any of Borrower's assets by the United States Government,
or any department, agency, or instrumentality thereof, or by any state, county,
municipal, or governmental agency, and the same is not paid within ten (10) days
after Borrower receives notice thereof, provided that none of the foregoing
shall constitute an Event of Default where such action or event is stayed or an
adequate bond has been posted pending a good faith contest by Borrower (provided
that no Credit Extensions will be required to be made during such cure period);
8.5 Insolvency. If Borrower becomes insolvent, or if an
Insolvency Proceeding is commenced by Borrower, or if an Insolvency Proceeding
is commenced against Borrower and is not dismissed or stayed within ten (10)
days (provided that no Credit Extensions will be made prior to the dismissal of
such Insolvency Proceeding);
8.6 Other Agreements. If there is a default in any agreement to
which Borrower is a party with a third party or parties resulting in a right by
such third party or parties, whether or not exercised, to accelerate the
maturity of any Indebtedness in an amount in excess of Two Hundred Fifty
Thousand Dollars ($250,000) or that could have a Material Adverse Effect;
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8.7 Subordinated Debt. If Borrower makes any payment on account
of Subordinated Debt, except to the extent such payment is allowed under any
subordination agreement entered into with Bank;
8.8 Judgments. If a judgment or judgments for the payment of
money in an amount, individually or in the aggregate, of at least Two Hundred
Fifty Thousand Dollars ($250,000) shall be rendered against Borrower and shall
remain unsatisfied and unstayed for a period of ten (10) days (provided that no
Credit Extensions will be made prior to the satisfaction or stay of such
judgment);
8.9 Misrepresentations. If any material misrepresentation or
material misstatement exists now or hereafter in any warranty or representation
set forth herein or in any certificate delivered to Bank by any Responsible
Officer pursuant to this Agreement or to induce Bank to enter into this
Agreement or any other Loan Document;
8.10 Note Defaults. If a Default, as defined in any of the
Notes, occurs; or
8.11 Pledge or Guaranty. Any guaranty of all or a portion of the
Obligations, including, but not limited to, the Pledge Agreement, ceases for any
reason to be in full force and effect, or any guarantor, including FirstFloor
Software, Inc., fails to perform any obligation under any guaranty of all or a
portion of the Obligations, or any material misrepresentation or material
misstatement exists now or hereafter in any warranty or representation set forth
in any guaranty of all or a portion of the Obligations or in any certificate
delivered to Bank in connection with such guaranty. If any guarantor, including
FirstFloor Software, Inc., becomes insolvent, or if an Insolvency Proceeding is
commenced by such guarantor, or if an Insolvency Proceeding is commenced against
such guarantor and is not dismissed or stayed with ten (10) days (provided that
no Credit Extensions will be made prior to the dismissal of such Insolvency
Proceeding).
9. BANK'S RIGHTS AND REMEDIES.
9.1 Rights and Remedies. Upon the occurrence and during the
continuance of an Event of Default, Bank may, at its election, without notice of
its election and without demand, do any one or more of the following, all of
which are authorized by Borrower:
(a) Declare all Obligations, whether evidenced by this
Agreement, by any of the other Loan Documents, or otherwise, immediately due and
payable (provided that upon the occurrence of an Event of Default described in
Section 8.5 all Obligations shall become immediately due and payable without any
action by Bank);
(b) Cease advancing money or extending credit to or for
the benefit of Borrower under this Agreement or under any other agreement
between Borrower and Bank;
(c) Settle or adjust disputes and claims directly with
account debtors for amounts, upon terms and in whatever order that Bank
reasonably considers advisable;
(d) Make such payments and do such acts as Bank
considers necessary or reasonable to protect its security interest in the
Collateral. Borrower agrees to assemble the Collateral if Bank so requires, and
to make the Collateral available to Bank as Bank may designate. Borrower
authorizes Bank to enter the premises where the Collateral is located, to take
and maintain possession of the Collateral, or any part of it, and to pay,
purchase, contest, or compromise any encumbrance, charge, or lien which in
Bank's determination appears to be prior or superior to its security interest
and to pay all expenses incurred in connection therewith. With respect to any of
Borrower's owned premises, Borrower hereby grants Bank a license to enter into
possession of such premises and to occupy the same, without charge, in order to
exercise any of Bank's rights or remedies provided herein, at law, in equity, or
otherwise;
(e) Set off and apply to the Obligations any and all (i)
balances and deposits of Borrower held by Bank, or (ii) indebtedness at any time
owing to or for the credit or the account of Borrower held by Bank;
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(f) Ship, reclaim, recover, store, finish, maintain,
repair, prepare for sale, advertise for sale, and sell (in the manner provided
for herein) the Collateral. Bank is hereby granted a license or other right,
solely pursuant to the provisions of this Section 9.1, to use, without charge,
Borrower's labels, patents, copyrights, rights of use of any name, trade
secrets, trade names, trademarks, service marks, and advertising matter, or any
property of a similar nature, as it pertains to the Collateral, in completing
production of, advertising for sale, and selling any Collateral and, in
connection with Bank's exercise of its rights under this Section 9.1, Borrower's
rights under all licenses and all franchise agreements shall inure to Bank's
benefit;
(g) Sell the Collateral at either a public or private
sale, or both, by way of one or more contracts or transactions, for cash or on
terms, in such manner and at such places (including Borrower's premises) as Bank
determines is commercially reasonable, and apply any proceeds to the Obligations
in whatever manner or order Bank deems appropriate;
(h) Bank may credit bid and purchase at any public sale;
and
(i) Any deficiency that exists after disposition of the
Collateral as provided above will be paid immediately by Borrower.
9.2 Power of Attorney. Effective only upon the occurrence and
during the continuance of an Event of Default, Borrower hereby irrevocably
appoints Bank (and any of Bank's designated officers, or employees) as
Borrower's true and lawful attorney to: (a) send requests for verification of
Accounts or notify account debtors of Bank's security interest in the Accounts;
(b) endorse Borrower's name on any checks or other forms of payment or security
that may come into Bank's possession; (c) sign Borrower's name on any invoice or
bill of lading relating to any Account, drafts against account debtors,
schedules and assignments of Accounts, verifications of Accounts, and notices to
account debtors; (d) dispose of any Collateral; (e) make, settle, and adjust all
claims under and decisions with respect to Borrower's policies of insurance; and
(f) settle and adjust disputes and claims respecting the accounts directly with
account debtors, for amounts and upon terms which Bank determines to be
reasonable; provided Bank may exercise such power of attorney to sign the name
of Borrower on any of the documents described in Section 4.2 regardless of
whether an Event of Default has occurred. The appointment of Bank as Borrower's
attorney in fact, and each and every one of Bank's rights and powers, being
coupled with an interest, is irrevocable until all of the Obligations have been
fully repaid and performed and Bank's obligation to provide Advances hereunder
is terminated.
9.3 Accounts Collection. At any time during the term of this
Agreement, Bank may notify any Person owing funds to Borrower of Bank's security
interest in such funds and verify the amount of such Account. Borrower shall
collect all amounts owing to Borrower for Bank, receive in trust all payments as
Bank's trustee, and immediately deliver such payments to Bank in their original
form as received from the account debtor, with proper endorsements for deposit.
9.4 Bank Expenses. If Borrower fails to pay any amounts or
furnish any required proof of payment due to third persons or entities, as
required under the terms of this Agreement, then Bank may do any or all of the
following after reasonable notice to Borrower: (a) make payment of the same or
any part thereof; (b) set up such reserves under the Revolving Facility as Bank
deems necessary to protect Bank from the exposure created by such failure; or
(c) obtain and maintain insurance policies of the type discussed in Section 6.6
of this Agreement, and take any action with respect to such policies as Bank
deems prudent. Any amounts so paid or deposited by Bank shall constitute Bank
Expenses, shall be immediately due and payable, and shall bear interest at the
then applicable rate hereinabove provided, and shall be secured by the
Collateral. Any payments made by Bank shall not constitute an agreement by Bank
to make similar payments in the future or a waiver by Bank of any Event of
Default under this Agreement.
9.5 Bank's Liability for Collateral. So long as Bank complies
with reasonable banking practices, Bank shall not in any way or manner be liable
or responsible for: (a) the safekeeping of the Collateral; (b) any loss or
damage thereto occurring or arising in any manner or fashion from any cause; (c)
any diminution in the value thereof; or (d) any act or default of any carrier,
warehouseman, bailee, forwarding agency, or other person whomsoever. All risk of
loss, damage or destruction of the Collateral shall be borne by Borrower.
16
<PAGE> 18
9.6 Remedies Cumulative. Bank's rights and remedies under this
Agreement, the Loan Documents, and all other agreements shall be cumulative.
Bank shall have all other rights and remedies not inconsistent herewith as
provided under the Code, by law, or in equity. No exercise by Bank of one right
or remedy shall be deemed an election, and no waiver by Bank of any Event of
Default on Borrower's part shall be deemed a continuing waiver. No delay by Bank
shall constitute a waiver, election, or acquiescence by it. No waiver by Bank
shall be effective unless made in a written document signed on behalf of Bank
and then shall be effective only in the specific instance and for the specific
purpose for which it was given.
9.7 Demand; Protest. Borrower waives demand, protest, notice of
protest, notice of default or dishonor, notice of payment and nonpayment, notice
of any default, nonpayment at maturity, release, compromise, settlement,
extension, or renewal of accounts, documents, instruments, chattel paper, and
guarantees at any time held by Bank on which Borrower may in any way be liable.
10. NOTICES. Unless otherwise provided in this Agreement, all notices or
demands by any party relating to this Agreement or any other agreement entered
into in connection herewith shall be in writing and (except for financial
statements and other informational documents which may be sent by first-class
mail, postage prepaid) shall be personally delivered or sent by a recognized
overnight delivery service, certified mail, postage prepaid, return receipt
requested, or by telefacsimile to Borrower or to Bank, as the case may be, at
its addresses set forth below:
If to Borrower: Calico Commerce, Inc.
333 W. San Carlos Street, Suite 300
San Jose, CA 95110
Attn: Mr. Arthur F. Knapp, Jr.
FAX: (408) 278-9291
If to Bank: Comerica Bank-California
55 Almaden Boulevard, 2nd Floor
San Jose, CA 95113
Attn: Ms. Mary Beth Suhr
FAX: (408) 556-5889
The parties hereto may change the address at which they are to receive
notices hereunder, by notice in writing in the foregoing manner given to the
other.
11. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER. This Agreement shall be
governed by, and construed in accordance with, the internal laws of the State of
California, without regard to principles of conflicts of law. Each of Borrower
and Bank hereby submits to the nonexclusive jurisdiction of the state and
Federal courts located in the County of Santa Clara, State of California.
BORROWER AND BANK EACH HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF ANY OF THE LOAN
DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING CONTRACT
CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR
STATUTORY CLAIMS. EACH PARTY RECOGNIZES AND AGREES THAT THE FOREGOING WAIVER
CONSTITUTES A MATERIAL INDUCEMENT FOR IT TO ENTER INTO THIS AGREEMENT. EACH
PARTY REPRESENTS AND WARRANTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL
COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS
FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
12. GENERAL PROVISIONS.
12.1 Successors and Assigns. This Agreement shall bind and inure
to the benefit of the respective successors and permitted assigns of each of the
parties; provided, however, that neither this Agreement nor any rights hereunder
may be assigned by Borrower without Bank's prior written consent, which consent
may be granted or withheld in Bank's sole discretion. Bank shall have the right
without the consent of or notice to Borrower
17
<PAGE> 19
to sell, transfer, negotiate, or grant participation in all or any part of, or
any interest in, Bank's obligations, rights and benefits hereunder.
12.2 Indemnification. Borrower shall defend, indemnify and hold
harmless Bank and its officers, employees, and agents against: (a) all
obligations, demands, claims, and liabilities claimed or asserted by any other
party in connection with the transactions contemplated by this Agreement; and
(b) all losses or Bank Expenses in any way suffered, incurred, or paid by Bank
as a result of or in any way arising out of, following, or consequential to
transactions between Bank and Borrower whether under this Agreement, or
otherwise (including without limitation reasonable attorneys fees and expenses),
except for losses caused by Bank's gross negligence or willful misconduct.
12.3 Time of Essence. Time is of the essence for the performance
of all obligations set forth in this Agreement.
12.4 Severability of Provisions. Each provision of this
Agreement shall be severable from every other provision of this Agreement for
the purpose of determining the legal enforceability of any specific provision.
12.5 Amendments in Writing, Integration. This Agreement cannot
be amended or terminated orally. All prior agreements, understandings,
representations, warranties, and negotiations between the parties hereto with
respect to the subject matter of this Agreement, if any, are merged into this
Agreement and the Loan Documents.
12.6 Counterparts. This Agreement may be executed in any number
of counterparts and by different parties on separate counterparts, each of
which, when executed and delivered, shall be deemed to be an original, and all
of which, when taken together, shall constitute but one and the same Agreement.
12.7 Survival. All covenants, representations and warranties
made in this Agreement shall continue in full force and effect so long as any
Obligations remain outstanding. The obligations of Borrower to indemnify Bank
with respect to the expenses, damages, losses, costs and liabilities described
in Section 12.2 shall survive until all applicable statute of limitations
periods with respect to actions that may be brought against Bank have run.
12.8 No Novation. This Agreement is not intended to be, and
shall not be construed to create, a novation or accord and satisfaction, and,
except as otherwise provided herein, the Agreement, as executed and delivered as
of March 10, 1997, and modified through the four modifications executed prior to
the date hereof, shall remain in full force and effect.
18
<PAGE> 20
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
CALICO COMMERCE, INC.
By: /s/ Alan Naumann
---------------------------------
Title: CEO
------------------------------
By: /s/ Arthur F Knapp, Jr
---------------------------------
Title: VP and CFO
------------------------------
COMERICA BANK-CALIFORNIA
By: /s/ Mary Beth Suhr
---------------------------------
Title: Vice President
------------------------------
19
<PAGE> 21
EXHIBIT A
COLLATERAL DESCRIPTION ATTACHMENT
TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
The Collateral shall consist of all right, title and interest of
Borrower in and to the following:
(a) All goods and equipment now owned or hereafter acquired, including,
without limitation, all machinery, fixtures, vehicles (including motor vehicles
and trailers), and any interest in any of the foregoing, and all attachments,
accessories, accessions, replacements, substitutions, additions, and
improvements to any of the foregoing, wherever located;
(b) All inventory, now owned or hereafter acquired, including, without
limitation, all merchandise, raw materials, parts, supplies, packing and
shipping materials, work in process and finished products including such
inventory as is temporarily out of Borrower's custody or possession or in
transit and including any returns upon any accounts or other proceeds, including
insurance proceeds, resulting from the sale or disposition of any of the
foregoing and any documents of title representing any of the above, and
Borrower's Books relating to any of the foregoing;
(c) All contract rights and general intangibles now owned or hereafter
acquired, including, without limitation, goodwill, trademarks, servicemarks,
trade styles, trade names, patents, patent applications, leases, license
agreements, franchise agreements, blueprints, drawings, purchase orders,
customer lists, route lists, infringements, claims, computer programs, computer
discs, computer tapes, literature, reports, catalogs, design rights, income tax
refunds, payments of insurance and rights to payment of any kind;
(d) All now existing and hereafter arising accounts, contract rights,
royalties, license rights and all other forms of obligations owing to Borrower
arising out of the sale or lease of goods, the licensing of technology or the
rendering of services by Borrower, whether or not earned by performance, and any
and all credit insurance, guaranties, and other security therefor, as well as
all merchandise returned to or reclaimed by Borrower and Borrower's Books
relating to any of the foregoing;
(e) All documents, cash, deposit accounts, securities, securities
accounts, security entitlements, financial assets, investment property, letters
of credit, certificates of deposit, instruments and chattel paper now owned or
hereafter acquired and Borrower's Books relating to the foregoing;
(f) All copyright rights, copyright applications, copyright
registrations and like protections in each work of authorship and derivative
work thereof, whether published or unpublished, now owned or hereafter acquired;
all trade secret rights, including all rights to unpatented inventions,
know-how, operating manuals, license rights and agreements and confidential
information, now owned or hereafter acquired; all mask work or similar rights
available for the protection of semiconductor chips, now owned or hereafter
acquired; all claims for damages by way of any past, present and future
infringement of any of the foregoing; and
(g) Any and all claims, rights and interests in any of the above and all
substitutions for, additions and accessions to and proceeds thereof.
<PAGE> 22
EXHIBIT B
LOAN PAYMENT/ADVANCE TELEPHONE REQUEST FORM
DEADLINE FOR SAME DAY PROCESSING IS 3:00 P.M., Pacific Time
TO:____________________ DATE: ____________________
FAX#: TIME: ____________________
FROM: __________________________________________________________________________
CLIENT NAME (BORROWER)
REQUESTED BY: __________________________________________________________________
AUTHORIZED SIGNER'S NAME
AUTHORIZED SIGNATURE: __________________________________________________________
PHONE NUMBER: __________________________________________________________________
FROM ACCOUNT # ____________ TO ACCOUNT # ___________________________________
REQUESTED TRANSACTION TYPE REQUEST DOLLAR AMOUNT
PRINCIPAL INCREASE (ADVANCE) $___________________________________
PRINCIPAL PAYMENT (ONLY) $___________________________________
INTEREST PAYMENT (ONLY) $___________________________________
PRINCIPAL AND INTEREST (PAYMENT) $___________________________________
OTHER INSTRUCTIONS: ____________________________________________________________
________________________________________________________________________________
All representations and warranties of Borrower stated in the Loan
Agreement are true, correct and complete in all material respects as of the date
of the telephone request for and Advance confirmed by this Borrowing
Certificate; provided, however, that those representations and warranties
expressly referring to another date shall be true, correct and complete in all
material respects as of such date.
BANK USE ONLY
TELEPHONE REQUEST:
The following person is authorized to request the loan payment transfer/loan
advance on the advance designated account and is known to me.
___________________________________ ___________________________________
Authorized Requester Phone #
___________________________________ ___________________________________
Authorized Requester Phone #
_________________________________________________
Authorized Signature (Bank)
<PAGE> 23
EXHIBIT C
COMPLIANCE CERTIFICATE
TO: COMERICA BANK-CALIFORNIA
FROM: CALICO COMMERCE, INC.
The undersigned authorized officer of Calico Commerce, Inc.C. hereby certifies
that in accordance with the terms and conditions of the Amended and Restated
Loan and Security Agreement between Borrower and Bank (the "Agreement"), (i)
Borrower is in complete compliance for the period ending ________________ with
all required covenants except as noted below and (ii) all representations and
warranties of Borrower stated in the Agreement are true and correct in all
material respects as of the date hereof. Attached herewith are the required
documents supporting the above certification. The Officer further certifies that
these are prepared in accordance with Generally Accepted Accounting Principles
(GAAP) and are consistently applied from one period to the next except as
explained in an accompanying letter or footnotes.
PLEASE INDICATE COMPLIANCE STATUS BY CIRCLING YES/NO UNDER "COMPLIES" COLUMN.
<TABLE>
<CAPTION>
REPORTING COVENANT REQUIRED COMPLIES
------------------ -------- --------
<S> <C> <C> <C>
Monthly financial statements Quarterly within 45 days (if Yes No
minimum cash not maintained,
monthly within 30 days)
Annual (CPA Audited) FYE within 90 days Yes No
</TABLE>
<TABLE>
<CAPTION>
FINANCIAL COVENANT REQUIRED ACTUAL COMPLIES
------------------ -------- ------ --------
<S> <C> <C> <C> <C>
Maintain on a
Monthly/Quarterly/Yearly Basis:
Minimum Quick Ratio (quarterly) 2.50:1.00 _____:1.00 Yes No
Minimum Effective Tangible Net Worth * $_____ Yes No
Minimum Liquidity 2.00:1.00 _____:1.00 Yes No
Debt Service Coverage** 1.50:1.00 _____:1.00 Yes No
Maximum Quarterly Loss *** $______ Yes No
Maximum Capital Expenditures (Yearly) $8,000,000 $______ Yes No
</TABLE>
* Borrower shall maintain a minimum, as of the last day of each quarter, an
Effective Tangible Net Worth of at least One Million Dollars ($1,000,000) until
October 31, 1999; on and after October 31, 1999, Borrower shall maintain, as of
the last day of each quarter, an Effective Tangible Net Worth of at least
Fifteen Million Dollars ($15,000,000) plus eighty percent (80%) of the new
equity raised after October 31, 1999 and 75% of net profit after tax.
Notwithstanding the foregoing, if Borrower does not retain a balance of
unrestricted cash, cash equivalents and short-term marketable securities of at
least $20,000,000 on its balance sheet, this covenant shall be measured on a
monthly basis.
** Debt Service Coverage replaces Liquidity after 6 consecutive months of
DSC>1.50:1.00
*** Borrower shall not permit its losses for any two consecutive fiscal quarters
(with losses calculated in accordance with GAAP, but excluding (i) one time
non-cash charges for acquisitions that Borrower makes with its own capital
stock, (ii) amortization of goodwill and (iii) non-cash stock compensation
charges) to exceed Thirteen Million Dollars ($13,000,000).
COMMENTS REGARDING EXCEPTIONS: BANK USE ONLY
See Attached.
Received by:___________________________
Sincerely, AUTHORIZED SIGNER
__________________________________ Date:__________________________________
SIGNATURE
__________________________________ Verified:______________________________
TITLE AUTHORIZED SIGNER
__________________________________ Date:__________________________________
DATE
Compliance Status: Yes No
<PAGE> 24
EXHIBIT D
SECURITY AGREEMENT
<PAGE> 25
EXHIBIT E
WARRANT
<PAGE> 26
EXHIBIT F
BORROWER'S INVESTMENT POLICY
<PAGE> 27
APPENDIX 1
NOTICE OF EXERCISE
1. The undersigned hereby elects to purchase ________ shares of the
Common Stock of Calico Technology, Inc. pursuant to the terms of the attached
Warrant, and tenders herewith payment of the purchase price of such shares in
full.
2. The undersigned hereby elects to convert the attached Warrant into
Shares/cash [strike one] in the manner specified in the Warrant. This conversion
is exercised with respect to _____________________ of the Shares covered by the
Warrant.
[Strike paragraph that does not apply.]
3. Please issue a certificate or certificates representing said shares
in the name of the undersigned or in such other name as is specified below:
______________________________________
(Name)
______________________________________
(Address)
4. The undersigned represents it is acquiring the shares solely for its
own account and not as a nominee for any other party and not with a view toward
the resale or distribution thereof except in compliance with applicable
securities laws.
______________________________________
(Signature
_______________
(Date)
<PAGE> 1
EXHIBIT 10.14
OFFICE LEASE
BETWEEN
METROPOLITAN LIFE INSURANCE COMPANY (LANDLORD)
AND
CALICO COMMERCE, INC. (TENANT)
RiverPark
San Jose, California
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE ONE - BASIC LEASE PROVISIONS.........................................................1
1.01 BASIC LEASE PROVISIONS........................................................1
1.02 ENUMERATION OF EXHIBITS & RIDER(S)............................................2
1.03 DEFINITIONS...................................................................2
ARTICLE TWO - PREMISES, TERM, FAILURE TO GIVE POSSESSION, AND PARKING........................6
2.01 LEASE OF PREMISES.............................................................6
2.02 TERM..........................................................................6
2.03 FAILURE TO GIVE POSSESSION....................................................6
2.04 AREA OF PREMISES..............................................................6
2.05 CONDITION OF PREMISES.........................................................6
2.06 PARKING.......................................................................7
ARTICLE THREE - RENT.........................................................................7
ARTICLE FOUR - RENT ADJUSTMENTS AND PAYMENTS.................................................7
4.01 RENT ADJUSTMENTS..............................................................7
4.02 STATEMENT OF LANDLORD.........................................................8
4.03 BOOKS AND RECORDS.............................................................8
4.04 PARTIAL OCCUPANCY.............................................................8
4.05 TENANT OR LEASE SPECIFIC TAXES................................................9
ARTICLE FIVE - SECURITY DEPOSIT..............................................................9
5.01 INITIAL DEPOSIT...............................................................9
5.02 LETTER OF CREDIT..............................................................9
5.03 GENERAL PROVISIONS...........................................................10
ARTICLE SIX - SERVICES......................................................................10
6.01 LANDLORD'S GENERAL SERVICES..................................................10
6.02 ELECTRICAL SERVICES..........................................................11
6.03 ADDITIONAL AND AFTER-HOUR SERVICES...........................................11
6.04 TELEPHONE SERVICES...........................................................11
6.05 DELAYS IN FURNISHING SERVICES................................................12
6.06 CHOICE OF SERVICE PROVIDER...................................................12
6.07 SIGNAGE......................................................................13
ARTICLE SEVEN - POSSESSION, USE AND CONDITION OF PREMISES...................................13
7.01 POSSESSION AND USE OF PREMISES...............................................13
7.02 LANDLORD ACCESS TO PREMISES; APPROVALS.......................................14
7.03 QUIET ENJOYMENT..............................................................14
ARTICLE EIGHT - MAINTENANCE.................................................................15
8.01 LANDLORD'S MAINTENANCE.......................................................15
8.02 TENANT'S MAINTENANCE.........................................................15
ARTICLE NINE - ALTERATIONS AND IMPROVEMENTS.................................................15
9.01 TENANT ALTERATIONS...........................................................15
9.02 LIENS........................................................................16
ARTICLE TEN - ASSIGNMENT AND SUBLETTING.....................................................16
10.01 ASSIGNMENT AND SUBLETTING....................................................16
10.02 RECAPTURE....................................................................18
10.03 EXCESS RENT..................................................................18
10.04 TENANT LIABILITY.............................................................18
10.05 ASSUMPTION AND ATTORNMENT....................................................18
ARTICLE ELEVEN - DEFAULT AND REMEDIES.......................................................18
11.01 EVENTS OF DEFAULT............................................................18
11.02 LANDLORD'S REMEDIES..........................................................19
11.03 ATTORNEY'S FEES..............................................................21
11.04 BANKRUPTCY...................................................................21
11.05 LANDLORD'S DEFAULT...........................................................21
ARTICLE TWELVE - SURRENDER OF PREMISES......................................................21
12.01 IN GENERAL...................................................................21
12.02 LANDLORD'S RIGHTS............................................................22
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
ARTICLE THIRTEEN - HOLDING OVER.............................................................22
ARTICLE FOURTEEN - DAMAGE BY FIRE OR OTHER CASUALTY.........................................22
14.01 SUBSTANTIAL UNTENANTABILITY..................................................22
14.02 INSUBSTANTIAL UNTENANTABILITY................................................23
14.03 RENT ABATEMENT...............................................................23
14.04 WAIVER OF STATUTORY REMEDIES.................................................23
ARTICLE FIFTEEN - EMINENT DOMAIN............................................................23
15.01 TAKING OF WHOLE OR SUBSTANTIAL PART..........................................23
15.02 TAKING OF PART...............................................................24
15.03 COMPENSATION.................................................................24
ARTICLE SIXTEEN - INSURANCE.................................................................24
16.01 TENANT'S INSURANCE...........................................................24
16.02 FORM OF POLICIES.............................................................24
16.03 LANDLORD'S INSURANCE.........................................................24
16.04 WAIVER OF SUBROGATION........................................................25
16.05 NOTICE OF CASUALTY...........................................................25
ARTICLE SEVENTEEN - WAIVER OF CLAIMS AND INDEMNITY..........................................25
17.01 WAIVER OF CLAIMS.............................................................25
17.02 INDEMNITY BY TENANT..........................................................26
ARTICLE EIGHTEEN - RULES AND REGULATIONS....................................................26
18.01 RULES........................................................................26
18.02 ENFORCEMENT..................................................................26
ARTICLE NINETEEN - LANDLORD'S RESERVED RIGHTS...............................................26
ARTICLE TWENTY - ESTOPPEL CERTIFICATE.......................................................27
20.01 IN GENERAL...................................................................27
20.02 ENFORCEMENT..................................................................27
ARTICLE TWENTY-ONE - RELOCATION OF TENANT...................................................27
ARTICLE TWENTY-TWO - REAL ESTATE BROKERS....................................................27
ARTICLE TWENTY-THREE - MORTGAGEE PROTECTION.................................................27
23.01 SUBORDINATION AND ATTORNMENT.................................................27
23.02 MORTGAGEE PROTECTION.........................................................28
ARTICLE TWENTY-FOUR - NOTICES...............................................................28
ARTICLE TWENTY-FIVE - MISCELLANEOUS.........................................................29
25.01 LATE CHARGES.................................................................29
25.02 NO JURY TRIAL; VENUE; JURISDICTION...........................................29
25.03 DEFAULT UNDER OTHER LEASE....................................................29
25.04 OPTION.......................................................................29
25.05 TENANT AUTHORITY.............................................................30
25.06 ENTIRE AGREEMENT.............................................................30
25.07 MODIFICATION OF LEASE FOR BENEFIT OF MORTGAGEE...............................30
25.08 EXCULPATION..................................................................30
25.09 ACCORD AND SATISFACTION......................................................30
25.10 LANDLORD'S OBLIGATIONS ON SALE OF BUILDING...................................30
25.11 BINDING EFFECT...............................................................30
25.12 CAPTIONS.....................................................................30
25.13 TIME; APPLICABLE LAW; CONSTRUCTION...........................................30
25.14 ABANDONMENT..................................................................31
25.15 LANDLORD'S RIGHT TO PERFORM TENANT'S DUTIES..................................31
25.16 SECURITY SYSTEM..............................................................31
25.17 NO LIGHT, AIR OR VIEW EASEMENTS..............................................31
25.18 RECORDATION..................................................................31
25.19 SURVIVAL.....................................................................31
25.20 RIDERS.......................................................................31
</TABLE>
ii
<PAGE> 4
OFFICE LEASE
ARTICLE ONE
BASIC LEASE PROVISIONS
1.01 BASIC LEASE PROVISIONS - In the event of any conflict between these
Basic Lease Provisions and any other Lease provision, such other Lease
provision shall control.
(1) BUILDING AND ADDRESS:
333 West San Carlos Street
San Jose, California 95110
(2) LANDLORD AND ADDRESS:
Metropolitan Life Insurance Company,
a New York corporation
Notices to Landlord shall be addressed:
Metropolitan Life Insurance Company
c/o Office of Building Manager
333 West San Carlos Street
San Jose, CA 95110
with copies to the following:
Metropolitan Life Insurance Company
101 Lincoln Centre Drive, Suite 600
Foster City, CA 94404
Attention: Assistant Vice President
and
Metropolitan Life Insurance Company
101 Lincoln Centre Drive, Suite 600
Foster City, CA 94404
Attention: Associate General Counsel
(3) TENANT AND CURRENT ADDRESS:
Name: Calico Commerce, Inc.
State of incorporation: a Delaware corporation
Notices to Tenant shall be addressed:
Calico Commerce, Inc.
333 West San Carlos Street
San Jose, CA 95110
(4) DATE OF LEASE: as of August 18, 1999
(5) LEASE TERM: The period commencing on the Commencement Date of September
1, 1999 and continuing until the expiration of 5 years after the
Expansion Space A Commencement Date ("ESACD")
(6) COMMENCEMENT DATE: September 1, 1999
(7) EXPIRATION DATE: sixty (60) months after the Expansion Space A
Commencement Date ("ESACD")
(8) MONTHLY BASE RENT:
<TABLE>
<CAPTION>
Period from/to Monthly Monthly Rate/SF of Rentable Area
-------------- ------- --------------------------------
<S> <C> <C>
09/01/99 - day before ESACD $122,761.44 $3.14
ESACD - end of 60th month thereafter $184,142.16 $3.14
</TABLE>
(which amount from and after the ESACD is the combined total for the
Premises initially delivered September 1, 1999 and Expansion Space A)
(9) RENTABLE AREA OF THE BUILDING: 294,532 square feet
1
<PAGE> 5
(10) RENTABLE AREA OF THE PREMISES: 39,096 square feet (35,213 usable square
feet)
(11) SECURITY DEPOSIT: immediately available funds of One Hundred Eighty-four
Thousand One Hundred and Forty-two Dollars ($184,142.00) plus the Letter
of Credit, all as provided in Article Five
(12) SUITE NUMBERS OF PREMISES: 300 & 400
(13) TENANT'S SHARE: 19.9109% (after the ESACD)
(14) OPERATING EXPENSES BASE YEAR: The calendar year 1999
(15) TAXES BASE YEAR: The calendar year 1999
(16) TENANT'S USE OF PREMISES: General office use, including training and R&D
labs for a computer software company, subject to all other provisions of
the Lease.
(17) PARKING SPACES: 235 initially, subject to the
provisions of Section 2.06
(18) BROKERS:
Landlord's Broker: CB Richard Ellis
Tenant's Broker: Tory Corporate Real Estate Advisors, d/b/a The
Staubach Company
1.02 ENUMERATION OF EXHIBITS & RIDER(S)
The Exhibits and Rider(s) set forth below and attached to this Lease are
incorporated in this Lease by this reference:
EXHIBIT A Plan of Premises
EXHIBIT B Workletter Agreement
EXHIBIT C Rules and Regulations
EXHIBIT D Form of Letter of Credit
EXHIBIT E Form of Subordination, Nondisturbance and Attornment
EXHIBIT F Expansion Space A
EXHIBIT G Roof Antenna
RIDER 1 Commencement Date Agreement
RIDER 2 Additional Provisions
1.03 DEFINITIONS
For purposes hereof, the following terms shall have the following meanings:
ADJUSTMENT YEAR: The applicable calendar year or any portion thereof after the
Operating Expenses Base Year and Taxes Base Year for which a Rent Adjustment
computation is being made.
AFFILIATE: Any corporation or other business entity which, as of the date
hereof, is owned or controlled by, owns or controls, or is under common
ownership or control with Tenant.
BUILDING: The office building located at the address specified in Section
1.01(1).
COMMENCEMENT DATE: The date specified in Section 1.01(6) as the Projected
Commencement Date, unless changed by operation of Article Two.
COMMON AREAS: All areas of the Project made available by Landlord from time to
time for the general common use or benefit of the tenants of the Building, and
their employees and invitees, or the public, as such areas currently exist and
as they may be changed from time to time.
COMPARABLE BUILDINGS: Other first class office buildings located in the City of
San Jose, California, or if the Building is now or subsequently located in a
recognized office sub-market within such City, first class office buildings
located within such sub-market.
DECORATION: Tenant Alterations which do not require a building permit and which
do not involve any of the structural elements of the Building, or any of the
Building's systems, including its electrical, mechanical, plumbing, security,
heating, ventilating, air-conditioning, communication, and fire and life safety
systems.
2
<PAGE> 6
DEFAULT RATE: Two (2) percentage points above the rate then most recently
announced by Bank of America N.T.& S.A. at its San Francisco headquarters as its
corporate base lending rate, from time to time announced, but in no event higher
than the maximum rate permitted by Law.
ENVIRONMENTAL LAWS: All Laws governing the use, storage, disposal or generation
of any Hazardous Material, including the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended, and the Resource
Conservation and Recovery Act of 1976, as amended.
EXPIRATION DATE: The date specified in Section 1.01(7) unless changed by
operation of Article Two.
EXPANSION SPACE A: The entire fifth floor of the Building, designated as Suite
500, as depicted on Exhibit F.
FORCE MAJEURE: Any accident, casualty, act of God, war or civil commotion,
strike or labor troubles, or any cause whatsoever beyond the reasonable control
of Landlord, including water shortages, energy shortages or governmental
preemption in connection with an act of God, a national emergency, or by reason
of Law, or by reason of the conditions of supply and demand which have been or
are affected by act of God, war or other emergency.
HAZARDOUS MATERIAL: Such substances, material and wastes which are or become
regulated under any Environmental Law; or which are classified as hazardous or
toxic under any Environmental Law; and explosives and firearms, radioactive
material, asbestos, and polychlorinated biphenyls.
INDEMNITEES: Collectively, Landlord, any Mortgagee or ground lessor of the
Property, the property manager and the leasing manager for the Property and
their respective directors, officers, agents and employees.
INTEREST RATE: The rate then most recently announced by Bank of America N.T.&
S.A. at its San Francisco headquarters as its corporate base lending rate, from
time to time announced, but in no event higher than the maximum rate permitted
by Law.
LAND: The parcel of real estate on which the Building is located.
LANDLORD WORK: The construction or installation of improvements to the Premises,
to be furnished by Landlord, specifically described in the Workletter or
exhibits attached hereto.
LAWS OR LAW: All laws, ordinances, rules, regulations, other requirements,
orders, rulings or decisions adopted or made by any governmental body, agency,
department or judicial authority having jurisdiction over the Property, the
Premises or Tenant's activities at the Premises and any covenants, conditions or
restrictions of record which affect the Property.
LEASE: This instrument and all exhibits and riders attached hereto, as may be
amended from time to time.
LEASE YEAR: The twelve month period beginning on the first day of the first
month following the Commencement Date (unless the Commencement Date is the first
day of a calendar month in which case beginning on the Commencement Date), and
each subsequent twelve month, or shorter, period until the Expiration Date.
MONTHLY BASE RENT: The monthly rent specified in Section 1.01(8).
MORTGAGEE: Any holder of a mortgage, deed of trust or other security instrument
encumbering the Property.
NATIONAL HOLIDAYS: New Year's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day and Christmas Day and other holidays recognized by the Landlord
and the janitorial and other unions servicing the Building in accordance with
their contracts.
OPERATING EXPENSES: All costs, expenses and disbursements of every kind and
nature which Landlord shall pay or become obligated to pay in connection with
the ownership, management, operation, maintenance, replacement and repair of the
Building and Land, including the following:
(i) capital replacements amortized over their useful life with interest
on the unamortized cost at a per annum rate equal to the Interest Rate;
(ii) any capital alterations, capital additions and capital improvements
which (a) are intended as a labor-saving device or to effect other
economies in the operation or maintenance of the Real Property, (b) are
made to the Real Property after the Commencement Date to comply with
Laws except those with which the Real Property was required to comply
with prior to the Commencement Date, or (c) are reasonably determined by
Landlord to be in the best interests of the Real Property and are of a
type generally found in the Comparable Buildings; provided that in each
case such cost shall be amortized over its useful life with interest on
the unamortized cost at
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a per annum rate equal to the Interest Rate. Provided further, only if
and to the extent that any amortized capital alterations, capital
additions and capital improvements included in item (a) would exceed the
cost of an otherwise permitted cost item or capital item (such as,
without limitation, a like kind replacement light bulb or fixture, or a
capital item under items (b) or (c)), then such excess shall be subject
to the further limitation that such amortized amount annually not exceed
the anticipated savings annually; and
(iii) Project Operating Expenses, provided however, if and when a second
office building is built and ready for occupancy, the Building shall
share the Project Operating Expenses on an equitable basis with the
second building.
Operating Expenses shall not include, (i) costs of alterations of the premises
of tenants of the Building, (ii) depreciation charges, (iii) interest and
principal payments on loans (except for loans for capital expenditures or
improvements which Landlord is allowed to include in Operating Expenses as
provided above), (iv) ground rental payments, (v) real estate brokerage and
leasing commissions, (vi) advertising and marketing expenses, (vii) costs of
Landlord reimbursed by insurance or condemnation proceeds or under any
contractor, manufacturer or supplier warranty to the extent reimbursed, (viii)
expenses incurred in negotiating leases of other tenants in the Building or
enforcing lease obligations of other tenants in the Building, (ix) Landlord's or
Landlord's property manager's corporate general overhead or corporate general
administrative expenses, (x) the wages and benefits of any employee who does not
devote substantially all of his or her employed time to the operation and
management of the Buildings or Real Property unless such wages and benefits are
prorated to reflect time spent on operating and managing the Real Property
vis-a-vis time spent on matters unrelated to operating and managing the Real
Property, (xi) the expense of service provided to other tenants in the Buildings
which are made available to Tenant at cost or for which Tenant is separately
charged, (xii) compensation (including benefits) of any employee of Landlord
above the grade of Building Manager or Building engineer, (xiii) costs of
capital additions, capital alterations or capital improvements, except those
specifically authorized above, (ivx) rentals and other related expenses for
leasing heating, ventilation and air conditioning systems, elevators, or other
items (except when needed in connection with normal repairs and maintenance of
the Building and/or to an ameliorate an emergency condition in the Building)
which if purchased, rather than rented, would constitute a capital improvement
not specifically authorized to be included in Operating Expenses, (xv) costs and
overhead and profit increment paid to Landlord or to subsidiaries or affiliates
of Landlord for goods and/or services in the Building to the extent the same
exceeds typical costs and overhead and profit increment of such goods and/or
services rendered by qualified unaffiliated third parties on a competitive
basis, (xvi) costs of signs (other than the Building directories) in or on the
Building identifying the owner of the Building or other tenants' signs, (xvii)
costs of large scale cleanup, removal and/or remediation of Hazardous Materials
in, on or under the Real Property required to comply with Environmental Law
which are incurred as a result of (A) the introduction by Landlord or any tenant
of the Real Property of any such Hazardous Materials in, on or under the Real
Property in violation of Environmental Law, or (B) as a result of the presence
of Hazardous Materials in, on, or under the Real Property as of the Commencement
Date, to the extent such Hazardous Materials are in violation of Environmental
Law in effect as of such date, (xviii) any costs expressly excluded from
Operating Expenses elsewhere in this Lease, (xiv) any separate charge to Tenant
or other occupants of the Real Property for after hours or excess usage of heat,
ventilation and air-conditioning ("HVAC") or utilities, and (xv) if earthquake
or flood insurance is not maintained during the Operating Expenses Base Year but
is maintained during any subsequent Adjustment Year, the Operating Expenses for
the Operating Expenses Base Year shall be increased to reflect the premiums
which would have been paid for such insurance had it been maintained during the
Operating Expenses Base Year. If any Operating Expense, though paid in one year,
relates to more than one calendar year, such expense shall be proportionately
allocated among such related calendar years.
OPERATING EXPENSES BASE YEAR: The calendar year designated in Section 1.01(14).
PREMISES: Prior to the ESACD, the entire third and fourth floors of the
Building, designated by the Suite Numbers listed in Section 1.01(12) and
depicted on Exhibit A attached hereto (sometimes referred to in this Lease as
the "Initial Premises"), and after the ESACD the Initial Premises together with
Expansion Space A.
PROJECT or PROPERTY: The Project consists of (a) the Building, associated
parking facility, plaza, improvements (including landscaping) and associated
river-bank area; and (b) the Land on which the Building is located, other land
on which the parking facility, plaza and improvements are located, other land on
which a second building may be built, and land and interests in real property
associated with the foregoing (the area of which is generally described as
bounded by the Guadalupe River, West San Carlos Street, Woz Way and Park
Avenue). A second building (sometimes referred to as a "Second Tower") may be
built as part of the Project and, if built, will share the parking facility,
plaza and other improvements and area outside of the buildings. As of the date
of this Lease, the Second Tower and additional plaza area may or may not be
built, and Landlord shall have no obligation to build it and shall have no
liability whether or not it is built. The Project also includes the personal
property, fixtures, machinery, equipment, systems and apparatus located in or
used in conjunction with any of the foregoing items described in this paragraph.
The Project may also be referred to as the Property.
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PROJECT OPERATING EXPENSES: All costs, expenses and disbursements of every kind
and nature which Landlord shall pay or become obligated to pay in connection
with the ownership, management, operation, maintenance, replacement and repair
of the Project (including the amortized portion of any capital expenditure or
improvement, together with interest thereon); provided however: (a) excluding
Operating Expenses which are directly and separately identifiable to the
Building and Land; (b) if and when a second office building is built and ready
for occupancy, excluding Operating Expenses which are directly and separately
identifiable to it and the parcel of land on which it is built; and (c)
excluding costs, expenses and disbursements of the same type and to the same
extent as those specifically excluded from Operating Expenses. If any Project
Operating Expense, though paid in one year, relates to more than one calendar
year, such expense shall be proportionately allocated among such related
calendar years.
REAL PROPERTY: The Property excluding any personal property.
RENT: Collectively, Monthly Base Rent, Rent Adjustments and Rent Adjustment
Deposits, and all other charges, payments, late fees or other amounts required
to be paid by Tenant under this Lease.
RENT ADJUSTMENT: Any amounts owed by Tenant for payment of Operating Expenses or
Taxes. The Rent Adjustments shall be determined and paid as provided in Article
Four.
RENT ADJUSTMENT DEPOSIT: An amount equal to Landlord's estimate of the Rent
Adjustment attributable to each month of the applicable Adjustment Year. On or
before the beginning of each Adjustment Year or with Landlord's Statement
(defined in Article Four), Landlord may estimate and notify Tenant in writing of
its estimate of the excess, if any, of Operating Expenses over those for the
Operating Expenses Base Year and of Taxes over those for the Taxes Base Year.
Prior to the first determination by Landlord of the amount of Operating Expenses
for the Operating Expenses Base Year and of Taxes for the Taxes Base Year,
Landlord may estimate such amounts in the foregoing calculation. The last
estimate by Landlord shall remain in effect as the applicable Rent Adjustment
Deposit unless and until Landlord notifies Tenant in writing of a change.
RENTABLE AREA OF THE BUILDING: The amount of square footage set forth in Section
1.01(9), which represents the sum of the rentable area of all space intended for
occupancy in the Building, calculated in accordance with the BOMA Standard.
RENTABLE AREA OF THE PREMISES: The amount of square footage set forth in Section
1.01(10), calculated in accordance with the BOMA Standard.
SECOND TOWER: As defined under Project or Property above.
SECURITY DEPOSIT: The funds and Letter of Credit specified in Section 1.01(11),
if any, deposited by Tenant with Landlord as security for Tenant's performance
of its obligations under this Lease. The Security Deposit is more particularly
provided for in Article Five.
STANDARD OPERATING HOURS: Monday through Friday from 7:00 A.M. to 6:00 P.M.,
excluding National Holidays.
SUBSTANTIALLY COMPLETE: The completion of the Landlord Work or Tenant Work, as
the case may be, except for minor insubstantial details of construction,
decoration or mechanical adjustments which remain to be done, which shall apply
and be determined separately for each of the Premises and Expansion Space A.
TAXES: All federal, state and local governmental taxes, assessments and charges
of every kind or nature, whether general, special, ordinary or extraordinary,
which Landlord shall pay or become obligated to pay because of or in connection
with the ownership, leasing, management, control or operation of: (a) the
Building, Land or any personal property used in connection therewith; and (b)
the Project, excluding those described in (a), those separately and directly
identifiable to the Second Tower and its parcel of land, and if and when the
Second Tower is built and ready for occupancy, excluding its equitable share of
Taxes of the Project. Any rental or similar taxes levied in lieu of or in
addition to general real and/or personal property taxes described above may be
included in Taxes. For purposes hereof, Taxes for any year shall be Taxes which
are assessed for any period of such year, whether or not such Taxes are billed
and payable in a subsequent calendar year. There shall be included in Taxes for
any year the amount of all fees, costs and expenses (including reasonable
attorneys' fees) paid by Landlord during such year in seeking or obtaining any
refund or reduction of Taxes. Taxes for any year shall be reduced by the net
amount of any tax refund received by Landlord attributable to such year. If a
special assessment payable in installments is levied against any part of the
Property, Taxes for any year shall include only the installment of such
assessment and any interest payable or paid during such year. Taxes shall not
include any federal or state inheritance, general income, franchise, gift or
estate taxes, or any exactions or impositions for off-site improvements, impact
fees or the like imposed separately as to, and solely as a condition of,
construction of the Second Tower, except that if a change occurs in the method
of taxation resulting in whole or in part in the substitution of any such taxes,
or any other assessment, for any Taxes as above defined, such substituted taxes
or assessments shall be included in the Taxes.
TAXES BASE YEAR: The calendar year designated in Section 1.01(15).
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TENANT ADDITIONS: Collectively, Landlord Work, Tenant Work and Tenant
Alterations.
TENANT ALTERATIONS: Any alterations, improvements, additions, installations or
construction in or to the Premises or any Real Property systems serving the
Premises (excluding Landlord Work or Tenant Work); and any supplementary
air-conditioning systems installed by Landlord or by Tenant at Landlord's
request pursuant to Section 6.01(b).
TENANT DELAY: Any event or occurrence which delays the Substantial Completion of
the Landlord Work in Expansion Space A which is caused by or is described as
follows:
(i) special work, changes, alterations or additions requested or made by
Tenant in the design or finish in any part of Expansion Space A or the
Premises after approval of the plans and specifications (as described in
the Workletter);
(ii) Tenant's delay in submitting plans, supplying information,
approving plans, specifications or estimates, giving authorizations or
otherwise;
(iii) failure to approve and pay for such Tenant Work as Landlord
undertakes to complete at Tenant's expense;
(iv) the performance or completion by Tenant or any person engaged by
Tenant of any work in or about Expansion Space A or the Premises; or
(v) failure to perform or comply with any obligation or condition
binding upon Tenant pursuant to the Workletter, including the failure to
approve and pay for such Landlord Work or other items if and to the
extent the Workletter provides they are to be approved or paid by
Tenant.
TENANT WORK: All work installed or furnished to the Premises by Tenant pursuant
to the Workletter.
TENANT'S SHARE: The percentage specified in Section 1.01(13) which represents
the ratio of the Rentable Area of the Premises (after addition to it of
Expansion Space A) to the Rentable Area of the Building.
TERM: The term of this Lease commencing on the Commencement Date and expiring on
the Expiration Date.
TERMINATION DATE: The Expiration Date or such earlier date as this Lease
terminates or Tenant's right to possession of the Premises terminates.
WORKLETTER: The Agreement regarding the manner of completion of Landlord Work
and Tenant Work set forth on Exhibit B attached hereto.
ARTICLE TWO
PREMISES, TERM, FAILURE TO GIVE POSSESSION, AND PARKING
2.01 LEASE OF PREMISES
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the
Premises for the Term and upon the terms, covenants and conditions provided in
this Lease.
2.02 TERM
(a) The Commencement Date shall be the date specified in Section
1.01(6), unless changed by operation of Rider 2.
2.03 FAILURE TO GIVE POSSESSION
(Intentionally omitted; see Rider 2)
2.04 AREA OF PREMISES
The Rentable Area of the Premises and the Rentable Area of the Building as set
forth in Article One have been calculated by Landlord pursuant to the Standard
Method for Measuring Floor Area in Office Buildings, ANSI Z65.1-1996 (the "BOMA
Standard"). The Rentable Area of the Premises and of the Building shall be
certified to Landlord and Tenant with reasonably particularized supporting
calculations by Landlord's planner/designer prior to the Commencement Date, and
such certification shall be made in accordance with the provisions of this
Section 2.04.
2.05 CONDITION OF PREMISES
The Premises shall be delivered and leased in the condition provided in Rider 2.
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2.06 PARKING
During the Term, Tenant may use the number of Parking Spaces specified in
Section 1.01(17) for parking on an unassigned basis, subject to the provisions
hereof. Such number is the total Parking Spaces for both the Premises and
Expansion Space A and represents a rate of 4 spaces per 1000 square feet of
Rentable Area. In the event that a Second Tower is built, at such time as
parking spaces are needed for tenants occupying the Second Tower, the number of
Parking Spaces Tenant may use shall be reduced to 141 spaces, which represents
the total Parking spaces for both the Premises and Expansion Space A at a rate
of 2.4 spaces per 1000 square feet of Rentable Area. The rate payable by Tenant
to Landlord for such Parking Spaces allocable to the Premises and Expansion
Space A for the initial Term shall be Seventy Dollars ($70.00) per unassigned
Parking Space. The rate payable during any extensions of the initial Term shall
be at the prevailing rates, and the number of parking spaces and rate payable
for any expansion pursuant to the Rights of First Offer shall be separately
negotiated for any and each such expansion. The prevailing rates mean base rates
being charged from time to time by Landlord or its parking operator to other
tenants for similar parking rights without consideration of any discounts, which
rate as of the date of this Lease is Eighty-five Dollars ($85.00) per space per
month for unassigned parking. The parking charge is payable only for the number
of Parking Spaces Tenant (including its employees) actually requests to use on a
monthly basis, based upon parking passes, keycards or other means of prepaid
access to the garage requested by Tenant or its employees and issued by Landlord
or its parking operator, and is due and payable in advance as additional Rent at
the same time and manner as Monthly Base Rent. Landlord or its parking operator
may deny monthly parking if and to the extent such parking is not prepaid and
will honor only those passes or keycards or the like for which payment has been
received. Holders of paid-up monthly parking passes, keycards or the like will
have access to the parking garage twenty-four (24) hours every day, including
weekends and National Holidays. The locations and type of parking shall be
designated by Landlord or Landlord's parking operator from time to time. Tenant
acknowledges and agrees that the parking spaces in the Project's parking
facility may include a mixture of spaces for compact vehicles as well as
full-size passenger automobiles, and that Tenant shall not use parking spaces
for vehicles larger than the striped size of the parking spaces. All vehicles
using Tenant's spaces shall prominently display identification stickers or other
markers, and/or have passes or keycards for ingress and egress, as may be
required and provided by Landlord or its parking operator from time to time.
Tenant shall comply with any and all parking rules and regulations from time to
time established by Landlord or Landlord's parking operator, including a
requirement that Tenant pay to Landlord or Landlord's parking operator a charge
for loss and replacement of passes, keycards, identification stickers or
markers, and for any and all loss or other damage caused by persons or vehicles
related to use of Tenant's parking privileges. Tenant shall not allow any
vehicles using Tenant's parking privileges to be parked, loaded or unloaded
except in accordance with this Section, including in the areas and in the manner
designated by Landlord or its parking operator for such activities. If any
vehicle is using the parking or loading areas contrary to any provision of this
Section, Landlord or its parking operator shall have the right, in addition to
all other rights and remedies of Landlord under this Lease, to remove or tow
away the vehicle without prior notice to Tenant, and the cost thereof shall be
paid to Landlord within ten (10) days after notice from Landlord to Tenant. Upon
Tenant's request for additional parking on a month-to-month basis, and subject
to availability of spaces for such parking, Landlord may, without obligation to
do so, from time to time provide additional parking on a month-to-month basis at
the prevailing rates, but Landlord shall determine such availability and may
terminate such additional use in Landlord's sole discretion.
ARTICLE THREE
RENT
Tenant agrees to pay to Landlord at the first office specified in Section
1.01(2), or to such other persons, or at such other places designated by
Landlord, without any prior demand therefor in immediately available funds and
(except as otherwise expressly provided in this Lease) without any deduction or
offset whatsoever, Rent, including Monthly Base Rent and Rent Adjustments in
accordance with Article Four, during the Term. Monthly Base Rent shall be paid
monthly in advance on the first day of each month of the Term, except that the
first installment of Monthly Base Rent shall be paid by Tenant to Landlord no
later than the Commencement Date. Monthly Base Rent shall be prorated for
partial months within the Term. Unpaid Rent shall bear interest at the Default
Rate from the date due until paid. Tenant's covenant to pay Rent shall be
independent of every other covenant in this Lease.
ARTICLE FOUR
RENT ADJUSTMENTS AND PAYMENTS
4.01 RENT ADJUSTMENTS
Tenant shall pay to Landlord Rent Adjustments with respect to each Adjustment
Year as follows:
(i) The Rent Adjustment Deposit representing Tenant's Share of
Operating Expenses for the applicable Adjustment Year in excess of
Operating Expenses for the Operating Expenses Base Year, monthly during
the Term with the payment of Monthly Base Rent; and
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(ii) The Rent Adjustment Deposit representing Tenant's Share of
Taxes for the applicable Adjustment Year in excess of Taxes for the
Taxes Base Year, monthly during the Term with the payment of Monthly
Base Rent; and
(iii) Any Rent Adjustments due in excess of the Rent Adjustment
Deposits in accordance with Section 4.02. Rent Adjustments due from
Tenant to Landlord for any Adjustment Year shall be Tenant's Share of
Operating Expenses for such year in excess of Operating Expenses for the
Operating Expenses Base Year and Tenant's Share of Taxes for such year
in excess of Taxes for the Taxes Base Year.
Notwithstanding any provision of this Article Four to the contrary, as a
concession to Tenant, Landlord agrees to waive collection from Tenant of any
Rent Adjustment or Rent Adjustment Deposits for the year 2000, but Rent
Adjustments and Rent Adjustment Deposits for the Adjustment Year 2001 and
thereafter shall be payable based upon the Operating Expenses Base Year and
Taxes Base Year.
4.02 STATEMENT OF LANDLORD
As soon as feasible after the expiration of the Operating Expenses Base Year and
the Taxes Base Year, and each Adjustment Year thereafter, Landlord will furnish
Tenant a statement ("Landlord's Statement") showing the following:
(i) Operating Expenses and Taxes for the Operating Expenses Base
Year and Taxes Base Year and thereafter for the last Adjustment Year;
(ii) The amount of Rent Adjustments due Landlord for the last
Adjustment Year, less credit for Rent Adjustment Deposits paid, if any;
and
(iii) Any change in the Rent Adjustment Deposit due monthly in
the current Adjustment Year, including the amount or revised amount due
for months preceding any such change pursuant to Landlord's Statement.
Tenant shall pay to Landlord within ten (10) days after receipt of such
statement any amounts for Rent Adjustments then due in accordance with
Landlord's Statement. Any amounts due from Landlord to Tenant pursuant to this
Section shall be credited to the Rent Adjustment Deposit next coming due, or
refunded to Tenant if the Term has already expired provided Tenant is not in
default hereunder. No interest or penalties shall accrue on any amounts which
Landlord is obligated to credit or refund to Tenant by reason of this Section
4.02. Landlord's failure to deliver Landlord's Statement or to compute the
amount of the Rent Adjustments shall not constitute a waiver by Landlord of its
right to deliver such items nor constitute a waiver or release of Tenant's
obligations to pay such amounts. The Rent Adjustment Deposit shall be credited
against Rent Adjustments due for the applicable Adjustment Year. During the last
complete calendar year or during any partial calendar year in which the Lease
terminates, Landlord may include in the Rent Adjustment Deposit its estimate of
Rent Adjustments which may not be finally determined until after the termination
of this Lease. Tenant's obligation to pay Rent Adjustments and Landlord's
obligation to refund any overpayments shall survive the expiration or
termination of the Lease. Notwithstanding the foregoing, in no event shall the
sum of Monthly Base Rent and the Rent Adjustments be less than the Monthly Base
Rent payable.
4.03 BOOKS AND RECORDS
Landlord shall maintain books and records showing Operating Expenses and Taxes
in accordance with sound accounting and management practices, consistently
applied. Tenant or its representative (which representative shall be an employee
of Tenant or a certified public accountant licensed to do business in the state
in which the Property is located and whose primary business is certified public
accounting) shall have the right, for a period of one hundred twenty (120) days
following the date upon which Landlord's Statement is delivered to Tenant, to
examine and make copies of Landlord's books and records with respect to the
items in the foregoing statement of Operating Expenses and Taxes during normal
business hours, upon written notice, delivered at least three (3) business days
in advance. Such books and records shall be available for examination at a
location not greater than 50 miles from the Project. If Tenant does not object
in writing to Landlord's Statement within one hundred eighty (180) days of
Tenant's receipt thereof, specifying the nature of the item in dispute and the
reasons therefor, then Landlord's Statement shall be considered final and
accepted by Tenant. Any amount due to the Landlord as shown on Landlord's
Statement, whether or not disputed by Tenant as provided herein shall be paid by
Tenant when due as provided above, without prejudice to any such written
exception. Tenant agrees to pay the cost of such audit unless it is subsequently
determined that Landlord's original Statement which was the subject of such
audit was in error to Tenant's disadvantage by five percent (5%) or more of the
total Operating Expenses and Taxes which was the subject of such audit. At which
time Landlord will reimburse out of pocket costs up to Two Thousand Five Hundred
Dollars ($2,500.00).
4.04 PARTIAL OCCUPANCY
For purposes of determining Rent Adjustments, if the Building is not fully
occupied during all or a portion of any year during the Term, Landlord shall
make appropriate adjustments to the Operating Expenses for such
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year employing sound accounting and management principles consistently applied,
to determine the amount of Operating Expenses that would have been paid or
incurred by Landlord had the Building been 100% occupied, and the amount so
determined shall be deemed to have been the amount of Operating Expenses for
such year. In the event that the Real Property is not fully assessed for all or
a portion of any year during the Term, then Taxes shall be adjusted to an amount
which would have been payable in such year if the Real Property had been fully
assessed. In the event any other tenant in the Building provides itself with a
service of a type which Landlord would supply under the Lease without an
additional or separate charge to Tenant, then Operating Expenses shall be deemed
to include the cost Landlord would have incurred had Landlord provided such
service to such other tenant.
4.05 TENANT OR LEASE SPECIFIC TAXES
In addition to Monthly Base Rent, Rent Adjustments, Rent Adjustment Deposits and
other charges to be paid by Tenant, Tenant shall pay to Landlord, upon demand,
any and all taxes payable by Landlord (other than federal or state inheritance,
general income, gift or estate taxes) whether or not now customary or within the
contemplation of the parties hereto: (a) upon, allocable to, or measured by the
Rent payable hereunder, including any gross receipts tax or excise tax levied by
any governmental or taxing body with respect to the receipt of such rent
(provided, however, that to the extent any such taxes are in effect during the
Taxes Base Year, the same shall be included in the Taxes for the Taxes Base Year
and Tenant shall only be required to pay increases therein pursuant to Section
4.01); or (b) upon or with respect to the possession, leasing, operation,
management, maintenance, alteration, repair, use or occupancy by Tenant of the
Premises or any portion thereof; or (c) upon the measured value of Tenant's
personal property located in the Premises or in any storeroom or any other place
in the Premises or the Property, or the areas used in connection with the
operation of the Property, it being the intention of Landlord and Tenant that,
to the extent possible, such personal property taxes shall be billed to and paid
directly by Tenant; (d) resulting from Tenant Alterations to the Premises
subsequent to those governed by the Workletter, whether title thereto is in
Landlord or Tenant; or (e) upon this transaction. Taxes paid by Tenant pursuant
to this Section 4.05 shall not be included in any computation of Taxes payable
pursuant to Sections 4.01 and 4.02.
ARTICLE FIVE
SECURITY DEPOSIT
5.01 INITIAL DEPOSIT
Tenant concurrently with the execution of this Lease shall pay to Landlord as
the Security Deposit under this Lease, the amounts in the form provided below:
(i) the amount of One Hundred Eighty-four Thousand One Hundred and Forty-two
Dollars ($184,142.00) specified in Section 1.01 shall be paid to Landlord in
immediately available funds; and (ii) the amount of Eight Hundred Thousand
Dollars ($800,000.00) in the form of the Letter of Credit, as defined and
provided in Section 5.02 below.
5.02 LETTER OF CREDIT
(a) Within ten (10) business days after the execution of this Lease,
Tenant shall deposit with Landlord an irrevocable letter of credit (the "Letter
of Credit") in the amount of Eight Hundred Thousand Dollars ($800,000.00) as
part of the Security Deposit under this Lease. The Letter of Credit provided for
under this Section shall be an unconditional "clean" Letter of Credit and
require no documents, and shall be in the form attached as Exhibit D and from a
banking institution satisfactory to Landlord; provided however, Landlord
pre-approves Comerica Bank as the Issuer initially. It shall also be in
compliance with all applicable laws and regulations, including, without
limitation, applicable regulations of the Comptroller of the Currency. The
Letter of Credit shall have an absolute expiration date of not earlier than
forty-five (45) days after the Expiration Date of the initial Term of this Lease
and prior thereto shall be extended automatically on each anniversary of
issuance unless the Issuer provides Landlord with not less than forty-five (45)
days prior written notice of non-renewal, in which case the same shall be
replaced by Tenant with another Letter of Credit which complies with the
foregoing requirements at least thirty (30) days prior to its expiration. It is
agreed that in the event (i) Tenant defaults in the performance or observance of
any of the terms, provisions, covenants and conditions of this Lease, including
the payment of Rent or any other sum due from Tenant with respect to the Lease,
or (ii) the Letter of Credit is not extended or replaced by Tenant in a manner
which complies with the foregoing provisions of this Section, Landlord shall
have the right but shall not be required to, from time to time without prejudice
to any other remedy Landlord may have on account thereof, to present the Letter
of Credit for payment and to retain the proceeds as security in the event of an
occurrence under clause (i) above, or in the event of an occurrence under clause
(i) above, to use, apply or retain the whole or any part of the proceeds to the
extent Landlord could use, apply or retain any other funds deposited with
Landlord as a Security Deposit hereunder, and any amounts so used, applied or
retained shall be replenished by Tenant as provided in Section 5.03 below. If
Landlord presents the Letter of Credit for payment, no interest shall be payable
to Tenant on the proceeds. Tenant shall not assign or encumber or attempt to
assign or encumber the Letter of Credit deposited (or the proceeds thereof) as
part of the Security Deposit, and neither Landlord nor its successors or assigns
shall be bound by any such assignment, encumbrance, attempted assignment or
attempted encumbrance.
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(b) Notwithstanding anything to the contrary contained herein, Landlord
agrees that the Letter of Credit held as part of the Security Deposit pursuant
to this Section shall be reduced (individually, a "Reduction", collectively, the
"Reductions") as follows: a Reduction of Two Hundred Thousand Dollars
($200,000.00) on each anniversary of the Expansion Space A Commencement Date
(ESACD), as such terms are defined in Rider 2 of the Lease, until such time as
the Letter of Credit is reduced to zero. Each Reduction is expressly subject to
the following: (i) prior to the anniversary date on which a Reduction is to be
granted, there has occurred no default of Tenant beyond any applicable notice
and grace period, and in the event such a default has occurred, the right to the
pending Reduction and to all subsequent Reductions is waived; (ii) on the date
on which such Reduction is to be granted there exists no act or omission on the
part of Tenant which, with the passage of time or the giving of notice, or both
would constitute a default of Tenant, in which event the right to that Reduction
is suspended (until such default is timely cured) but not to all subsequent
Reductions so long as Tenant has timely cured; and (iii) on or immediately after
any anniversary date on which a Reduction is to be granted, and provided Tenant
has qualified for same pursuant to this Section, Tenant must present Landlord
with an acceptable (pursuant to this Section) substitute Letter of Credit or
amendment to the existing Letter of Credit in such appropriately reduced amount.
Landlord agrees, in the instance of a substitute Letter of Credit, to
simultaneously surrender to the Issuer the one held.
5.03 GENERAL PROVISIONS
The Security Deposit may be applied by Landlord to cure, in whole or part, any
default of Tenant under this Lease, and upon notice by Landlord of such
application, Tenant shall replenish the Security Deposit in full by paying to
Landlord within ten (10) days of demand the amount so applied. Landlord's
application of the Security Deposit shall not constitute a waiver of Tenant's
default to the extent that the Security Deposit does not fully compensate
Landlord for all losses, damages, costs and expenses incurred by Landlord in
connection with such default and shall not prejudice any other rights or
remedies available to Landlord under this Lease or by Law. Landlord shall not
pay any interest on the Security Deposit. Landlord shall not be required to keep
the Security Deposit separate from its general accounts. The Security Deposit
shall not be deemed an advance payment of Rent, nor a measure of damages for any
default by Tenant under this Lease, nor shall it be a bar or defense of any
action which Landlord may at any time commence against Tenant. In the absence of
evidence reasonably satisfactory to Landlord of an assignment of the right to
receive the Security Deposit or the remaining balance thereof, Landlord may
return the Security Deposit to the original Tenant, regardless of one or more
assignments of this Lease. Upon the transfer of Landlord's interest under this
Lease, Landlord's obligation to Tenant with respect to the Security Deposit
shall terminate upon transfer to the transferee of the Security Deposit, or any
balance thereof. If Tenant shall fully and faithfully comply with all the terms,
provisions, covenants, and conditions of this Lease, the Security Deposit, or
any balance thereof, shall be returned to Tenant within thirty (30) days after
Landlord recovers possession of the Premises or such longer time as may be
permissible under Law.
ARTICLE SIX
SERVICES
6.01 LANDLORD'S GENERAL SERVICES
(a) So long as the Lease is in full force and effect and Tenant has is
not in Default, Landlord shall furnish the following services:
(1) heat, ventilation and air-conditioning ("HVAC") in the Premises during
Standard Operating Hours as necessary in Landlord's reasonable judgment
for the comfortable occupancy of the Premises under normal business
operations, subject to compliance with all applicable voluntary and
mandatory regulations and Laws;
(2) tempered and cold water for use in lavatories in common with other
tenants from the regular supply of the Building;
(3) cleaning and janitorial services in the Premises five (5) days per week,
excluding weekends and National Holidays, as is customarily provided in
the Comparable Buildings;
(4) washing of the outside windows in the Premises, weather permitting, at
intervals determined by Landlord;
(5) automatic passenger elevator service in common with other tenants of the
Building (with such elevator service to be available, subject to
customary security requirements, twenty-four hours per day and seven
days per week), and freight elevator service subject to reasonable
scheduling by Landlord and payment of Landlord's standard charges;
(b) If Tenant uses heat generating machines or equipment in the Premises
to an extent which adversely affects the temperature otherwise maintained for
general office use by the air-cooling system or whenever the occupancy or
electrical load adversely affects the temperature otherwise maintained for
general office use by the air-cooling system, Landlord reserves the right to
install or to require Tenant to
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install supplementary air-conditioning units in the Premises. Tenant shall bear
all costs and expenses related to the installation, maintenance and operation of
such units.
(c) Tenant shall pay Landlord at rates fixed by Landlord for all tenants
in the Building (which shall be based on Landlord's actual cost, without profit
or mark-up to Landlord), charges for all water furnished to the Premises,
including the expenses of installation of a water line, meter and fixtures.
6.02 ELECTRICAL SERVICES
(a) So long as the Lease is in full force and effect and Tenant is not
in Default, Landlord shall furnish to the Premises electric current for general
business office use, including normal lighting, normal business office machines,
customary janitorial service, and making alterations or repairs (whether by
Landlord or Tenant). Notwithstanding any provision of the Lease to the contrary,
without, in each instance, the prior written consent of Landlord, which shall
not be unreasonably withheld, Tenant shall not: (i) make any alterations or
additions to the electric equipment or systems; or (ii) install or use or permit
the installation or use of any computer or electronic data processing equipment
in the Premises other than personal computers, lap-top computers and ancillary
equipment. Landlord confirms that no further consent is required for Tenant's
continued use of existing equipment on a per square foot basis applied to the
Initial Premises and Expansion Space A, provided however, Landlord shall
install, at Tenant's sole cost and expense, a separate meter or meters to
measure electric current consumed by the existing supplementary air-conditioning
units previously installed by Tenant in the Initial Premises, and Tenant shall
bear all costs and expenses related to the installation, maintenance and
operation of such meter(s) and such units. Tenant's use of electric current
shall at no time exceed the capacity of the wiring, feeders and risers providing
electric current to the Premises or the Building. The consent of Landlord to the
installation of electric equipment shall not relieve Tenant from the obligation
to limit usage of electricity to no more than such capacity.
(b) If and to the extent electric current is furnished to the Premises
in excess of the amount of electric current normally used during Standard
Operating Hours in a general business office in a first class office building
with the type of electrical equipment and normal business office machines
described in subparagraph (a) above, Tenant shall pay Landlord upon notice from
Landlord the cost of such excess electric current (without profit or mark-up to
Landlord) as additional Rent. The cost of such excess use and all additional
costs separately billed to Tenant pursuant to this Section shall not be included
as part of Operating Expenses. At any time and from time to time, Landlord may
in its sole discretion either (i) install one or more meters to measure electric
current furnished to the Premises or (ii) reasonably estimate electric current
furnished to the Premises. Upon notice from Landlord, Tenant shall pay Landlord
the cost of installing and maintaining all such meters and of any electrical
engineering or consulting firm, if Landlord retains such firm to estimate the
electric current furnished to the Premises in lieu of installation of a meter,
unless such metering or estimating fails to show that Tenant's usage of
electricity exceeds what is normal for the Building. Tenant shall pay Landlord
for such excess electric current at the then current rates charged to Landlord
for such electricity provided to the Property by the utility provider chosen by
Landlord plus any additional cost of Landlord in keeping account of the electric
current so consumed. Landlord's notice shall specify whether such excess use
shall be payable (i) in advance as reasonably estimated by Landlord in monthly
installments at the time prescribed for monthly installments of Monthly Base
Rent or (ii) within ten days after notice from Landlord given from time to time
of the amount due for prior excess use as metered or reasonably estimated by
Landlord.
(c) So long as the Lease is in full force and effect and Tenant is not
in Default, Landlord shall furnish to the Premises replacement lamps, bulbs,
ballasts and starters used in any normal Building lighting installed in the
Premises, except that if the replacement or repair of such items is a result of
negligence of Tenant, its employees, agents, servants, licensees, subtenants,
contractors or invitees, such cost shall be paid by Tenant within ten days after
notice from Landlord and shall not be included as part of Operating Expenses.
6.03 ADDITIONAL AND AFTER-HOUR SERVICES
At Tenant's written request, Landlord shall furnish additional quantities of any
of the services or utilities specified in Section 6.01, if Landlord can
reasonably do so, on the terms set forth herein. For HVAC services beyond
Standard Operating Hours, Tenant shall deliver to Landlord a written request (a)
prior to 2:00 P.M. Monday through Friday (except National Holidays) for service
on those days, and (b) prior to 2:00 P.M. on the last business day prior to
Saturday, Sunday or a National Holiday for service on those days. For services
or utilities requested by Tenant and furnished by Landlord, Tenant shall pay to
Landlord as a charge therefor Landlord's prevailing rates charged from time to
time for such services and utilities. If Tenant shall fail to make any such
payment within thirty (30) days after receipt of an invoice therefor, Landlord
may, upon notice to Tenant and in addition to Landlord's other remedies under
this Lease, discontinue any or all of such additional services.
6.04 TELEPHONE SERVICES
All telegraph, telephone, and communication connections outside the Premises
which Tenant may desire shall be subject to Landlord's prior written approval,
in Landlord's sole discretion, and the location of all wires and the work in
connection therewith shall be performed by contractors reasonably approved by
Landlord
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and shall be subject to the direction of Landlord, provided however, such
approval is not required as to Tenant's choice of service provider or telephone
equipment (including cabling) within the Premises and from the Premises in a
route designated by Landlord to any telephone cabinet or panel provided (as
existing or as installed as part of Landlord's Work, if any) on Tenant's floor
for Tenant's connection to the telephone cable serving the Building so long as
Tenant's service provider and equipment does not require connections different
than or additional to those to the telephone cabinet or panel provided. Except
to the extent of such cabling within the Premises or from the Premises to such
telephone cabinet or panel, Landlord reserves the right to designate and control
the entity or entities providing telephone or other communication cable
installation, removal, repair and maintenance in the areas of the Building
outside the Premises and to restrict and control access to telephone cabinets or
panels. In the event Landlord designates a particular vendor or vendors to
provide such cable installation, removal, repair and maintenance for the
Building, Tenant agrees to abide by and participate in such program. Tenant
shall be responsible for and shall pay all costs incurred in connection with the
installation of telephone cables and communication wiring in the Premises,
including any hook-up, access and maintenance fees related to the installation
of such wires and cables in the Premises and the commencement of service
therein, and the maintenance thereafter of such wire and cables; and there shall
be included in Operating Expenses for the Building all installation, removal,
hook-up or maintenance costs incurred by Landlord in connection with telephone
cables and communication wiring serving the Building which are not allocable to
any individual users of such service but are allocable to the Building
generally. If Tenant fails to maintain all telephone cables and communication
wiring in the Premises and such failure affects or interferes with the operation
or maintenance of any other telephone cables or communication wiring serving the
Building, Landlord or any vendor hired by Landlord may enter into and upon the
Premises forthwith and perform such repairs, restorations or alterations as
Landlord deems necessary in order to eliminate any such interference (and
Landlord may recover from Tenant all of Landlord's costs in connection
therewith). No later than the Termination Date, Tenant agrees to remove all
telephone cables and communication wiring installed by Tenant for and during
Tenant's occupancy, which Landlord shall request Tenant to remove. Tenant agrees
that neither Landlord nor any of its agents or employees shall be liable to
Tenant, or any of Tenant's employees, agents, customers or invitees or anyone
claiming through, by or under Tenant, for any damages, injuries, losses,
expenses, claims or causes of action because of any interruption, diminution,
delay or discontinuance at any time for any reason in the furnishing of any
telephone or other communication service to the Premises and the Building,
except where caused by the gross negligence or intentional misconduct of
Landlord or its agents or employees, and in no event for any consequential
damages.
6.05 DELAYS IN FURNISHING SERVICES
Tenant agrees that Landlord shall not be in breach of this Lease nor be liable
to Tenant for damages or otherwise, for any failure to furnish, or a delay in
furnishing, or a change in the quantity or character of any service when such
failure, delay or change is occasioned, in whole or in part, by repairs,
improvements or mechanical breakdowns by the act or default of Tenant or other
parties or by an event of Force Majeure. No such failure, delay or change shall
be deemed to be an eviction or disturbance of Tenant's use and possession of the
Premises, or relieve Tenant from paying Rent or from performing any other
obligations of Tenant under this Lease, without any deduction or offset. Failure
to any extent to make available, or any slowdown, stoppage, or interruption of,
the specified utility services resulting from any cause, including changes in
service provider or Landlord's compliance with any voluntary or similar
governmental or business guidelines now or hereafter published or any
requirements now or hereafter established by any governmental agency, board, or
bureau having jurisdiction over the operation of the Property, shall not render
Landlord liable in any respect for damages to either persons, property, or
business, nor be construed as an eviction of Tenant or work an abatement of
Rent, nor relieve Tenant of Tenant's obligations for fulfillment of any covenant
or agreement hereof. Should any equipment or machinery furnished by Landlord
break down or for any cause cease to function properly, Landlord shall use
reasonable diligence to repair same promptly, but Tenant shall have no claim for
abatement of Rent or damages on account of any interruption of service
occasioned thereby or resulting therefrom. Notwithstanding any provision of the
foregoing to the contrary, in the event and to the extent that Tenant is unable
to occupy the Premises for ten (10) consecutive days (the "Eligibility Period")
after Tenant has given Landlord written notice of such condition as a result of
Landlord's failure to provide utilities or services which Landlord is obligated
to provide, but excluding any period occupancy is prevented to the extent caused
by any of the following: (i) any act or omission of Tenant, any assignee, any
subtenant or any other occupant of the Premises, or (ii) request by Tenant or
any assignee to Landlord to make a decoration, alteration, improvement or
addition, or (iii) Force Majeure, or (iv) a matter outside of the Real Property,
then Monthly Base Rent and Rent Adjustments shall abate in the proportion in
which the area of the Premises which is unusable and unused bears to the total
area of the Premises on a per diem basis from the expiration of the Eligibility
Period until the earlier of restoration of the applicable service or access or
Tenant's re-occupancy or use of the affected portion of the Premises.
6.06 CHOICE OF SERVICE PROVIDER
Tenant acknowledges that Landlord may, at Landlord's sole option, to the extent
permitted by applicable law, elect to change, from time to time, the company or
companies which provide services (including electrical service, gas service,
water, telephone and technical services) to the Building, the Premises and/or
its occupants Notwithstanding anything to the contrary set forth in this Lease,
Tenant acknowledges that Landlord has not and does not make any representations
or warranties concerning the identity or identities of the company or companies
which provide services to the Building and the Premises or its occupants and
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Tenant acknowledges that the choice of service providers and matters concerning
the engagement and termination thereof shall be solely that of Landlord. The
foregoing provision is not intended to modify, amend, change or otherwise
derogate any provision of this Lease concerning the nature or type of service to
be provided or any specific information concerning the amount thereof to be
provided. Tenant agrees to cooperate with Landlord and each of its service
providers in connection with any change in service or provider.
6.07 SIGNAGE
Initial Building standard signage will be installed by Landlord in the directory
in the main lobby of the Building, in the listing of tenants in the elevator
lobby for the floor on which the Premises is located and at Tenant's main entry
door to the Premises at Tenant's sole cost and expense except to the extent that
funds are available out of any Landlord's Maximum Contribution, if any, provided
pursuant to the Workletter. Any change in such initial signage shall be only
with Landlord's prior written consent, shall conform to Building standard
signage and shall be at Tenant's sole cost and expense.
ARTICLE SEVEN
POSSESSION, USE AND CONDITION OF PREMISES
7.01 POSSESSION AND USE OF PREMISES
(a) Tenant shall be entitled to possession of the Initial Premises on
the Commencement Date and shall be entitled to possession of Expansion Space A
when the Landlord Work is Substantially Complete. Tenant shall occupy and use
the Premises only for the uses specified in Section 1.01(16) to conduct Tenant's
business. Tenant shall not occupy or use the Premises (or permit the use or
occupancy of the Premises) for any purpose or in any manner which: (1) is
unlawful or in violation of any Law or Environmental Law; (2) may be dangerous
to persons or property or which may increase the cost of, or invalidate, any
policy of insurance carried on the Building or covering its operations; (3) is
contrary to or prohibited by the terms and conditions of this Lease or the rules
of the Building set forth in Article Eighteen; or (4) would tend to create or
continue a nuisance.
(b) Tenant shall comply with all Environmental Laws pertaining to
Tenant's occupancy and use of the Premises and concerning the proper storage,
handling and disposal of any Hazardous Material introduced to the Premises or
the Property by Tenant or other occupants of the Premises, or their employees,
servants, agents, contractors, customers or invitees. Landlord shall comply with
all Environmental Laws applicable to the Property other than those to be
complied with by Tenant pursuant to the preceding sentence. Tenant shall not
generate, store, handle or dispose of any Hazardous Material in, on, or about
the Property without the prior written consent of Landlord, which may be
withheld in Landlord's sole discretion, except that such consent shall not be
required to the extent of Hazardous Material packaged and contained in office
products for consumer use in general business offices in quantities for ordinary
day-to-day use provided such use does not give rise to, or pose a risk of,
exposure to or release of Hazardous Material. In the event that Tenant is
notified of any investigation or violation of any Environmental Law arising from
Tenant's activities at the Premises, Tenant shall immediately deliver to
Landlord a copy of such notice. In such event or in the event Landlord
reasonably believes that a violation of Environmental Law exists, Landlord may
conduct such tests and studies relating to compliance by Tenant with
Environmental Laws or the alleged presence of Hazardous Material upon the
Premises as Landlord deems desirable, all of which shall be completed at
Tenant's expense. Landlord's inspection and testing rights are for Landlord's
own protection only, and Landlord has not, and shall not be deemed to have
assumed any responsibility to Tenant or any other party for compliance with
Environmental Laws, as a result of the exercise, or non-exercise of such rights.
Tenant hereby indemnifies, and agrees to defend, protect and hold harmless, the
Indemnitees from any and all loss, claim, demand, action, expense, liability and
cost (including attorneys' fees and expenses) arising out of or in any way
related to the presence of any Hazardous Material introduced to the Premises or
the Property during the Lease Term by Tenant or other occupants of the Premises,
or their employees, servants, agents, contractors, customers or invitees. In
case of any action or proceeding brought against the Indemnitees by reason of
any such claim, upon notice from Landlord, Tenant covenants to defend such
action or proceeding by counsel chosen by Landlord, in Landlord's sole
discretion. Landlord reserves the right to settle, compromise or dispose of any
and all actions, claims and demands related to the foregoing indemnity. If any
Hazardous Material is released, discharged or disposed of on or about the
Property and such release, discharge or disposal is not caused by Tenant or
other occupants of the Premises, or their employees, servants, agents,
contractors customers or invitees, such release, discharge or disposal shall be
deemed casualty damage under Article Fourteen to the extent that the Premises
are affected thereby; in such case, Landlord and Tenant shall have the
obligations and rights respecting such casualty damage provided under such
Article.
(c) Landlord and Tenant acknowledge that the Americans With Disabilities
Act of 1990 (42 U.S.C. Section 12101 et seq.) and regulations and guidelines
promulgated thereunder, as all of the same may be amended and supplemented from
time to time (collectively referred to herein as the "ADA") establish
requirements for business operations, accessibility and barrier removal, and
that such requirements may or may not apply to the Premises, the Building and
the Project depending on, among other things: (1) whether Tenant's business is
deemed a "public accommodation" or "commercial facility", (2) whether such
requirements are "readily achievable", and (3) whether a given alteration
affects a "primary function area" or
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triggers "path of travel" requirements. The parties hereby agree that: (i)
Landlord shall be responsible for ADA Title III compliance in the Common Areas,
except as provided below, (ii) Tenant shall be responsible for ADA Title III
compliance in the Premises, including any leasehold improvements or other work
to be performed in the Premises under or in connection with this Lease, (iii)
Landlord may perform, or require that Tenant perform, and Tenant shall be
responsible for the cost of, ADA Title III "path of travel" requirements
triggered by Tenant Additions in the Premises, and (iv) Landlord may perform, or
require Tenant to perform, and Tenant shall be responsible for the cost of, ADA
Title III compliance in the Common Areas necessitated by the Building being
deemed to be a "public accommodation" instead of a "commercial facility" as a
result of Tenant's use of the Premises, but Landlord agrees not to apply the
right under this sub-item (iv) so long as Tenant's use does not differ from its
existing use under the Prior Sublease (as defined in Rider 2). Tenant shall be
solely responsible for requirements under Title I of the ADA relating to
Tenant's employees.
(d) Landlord and Tenant agree to cooperate and use commercially
reasonable efforts to participate in traffic management programs generally
applicable to businesses located in or about the area and Tenant shall encourage
and support van and car pooling by, and staggered and flexible working hours
for, its office workers and service employees to the extent reasonably permitted
by the requirements of Tenant's business. Neither this Section or any other
provision of this Lease is intended to or shall create any rights or benefits in
any other person, firm, company, governmental entity or the public.
(e) Tenant agrees to cooperate with Landlord and to comply with any and
all guidelines or controls concerning energy management imposed upon Landlord by
federal or state governmental organizations or by any energy conservation
association to which Landlord is a party or which is applicable to the Building.
7.02 LANDLORD ACCESS TO PREMISES; APPROVALS
(a) Tenant shall permit Landlord to erect, use and maintain pipes,
ducts, wiring and conduits in and through the Premises, so long as Tenant's use,
layout or design of the Premises is not materially affected or altered. Landlord
or Landlord's agents shall have the right to enter upon the Premises in the
event of an emergency, or to inspect the Premises, to perform janitorial and
other services, to conduct safety and other testing in the Premises and to make
such repairs, alterations, improvements or additions to the Premises or the
Building or other parts of the Property as Landlord may deem necessary or
desirable (including all alterations, improvements and additions in connection
with a change in service provider or providers). Janitorial and cleaning
services shall be performed after normal business hours. Any entry or work by
Landlord may be during normal business hours and Landlord may use reasonable
efforts to ensure that any entry or work shall not materially interfere with
Tenant's occupancy of the Premises. Except in case of emergency or for routine
janitorial services, Landlord shall give Tenant reasonable prior notice before
exercising its rights of access and entry under this Section 7.02.
(b) If Tenant's employees shall not be present to permit an entry into
the Premises when Landlord (or Landlord's agents) reasonably believes that an
emergency situation justifies such entry, Landlord may enter the Premises
without rendering Landlord or its agents liable therefor, and without relieving
Tenant of any obligations under this Lease. However, Landlord shall promptly
notify Tenant of any such entry and provide details necessary for Tenant to
evaluate the nature and scope of Landlord's activities in the Premises.
(c) Landlord may enter the Premises for the purpose of conducting such
inspections, tests and studies as Landlord may deem desirable or necessary to
confirm Tenant's compliance with all Laws and Environmental Laws or for other
purposes necessary in Landlord's reasonable judgment to ensure the sound
condition of the Property and the systems serving the Property. Landlord's
rights under this Section 7.02(c) are for Landlord's own protection only, and
Landlord has not, and shall not be deemed to have assumed, any responsibility to
Tenant or any other party as a result of the exercise or non-exercise of such
rights, for compliance with Laws or Environmental Laws or for the accuracy or
sufficiency of any item or the quality or suitability of any item for its
intended use.
(d) Landlord may do any of the foregoing, or undertake any of the
inspection or work described in the preceding paragraphs without such action
constituting an actual or constructive eviction of Tenant, in whole or in part,
or giving rise to an abatement of Rent by reason of loss or interruption of
business of the Tenant, or otherwise.
(e) The review, approval or consent of Landlord with respect to any item
required or permitted under this Lease is for Landlord's own protection only,
and Landlord has not, and shall not be deemed to have assumed, any
responsibility to Tenant or any other party, as a result of the exercise or
non-exercise of such rights, for compliance with Laws or Environmental Laws or
for the accuracy or sufficiency of any item or the quality or suitability of any
item for its intended use.
7.03 QUIET ENJOYMENT
Landlord covenants, in lieu of any implied covenant of quiet possession or quiet
enjoyment, that so long as Tenant is not in Default under this Lease, Tenant
shall have the right to quiet enjoyment of the Premises
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without hindrance or interference from Landlord or those claiming through
Landlord, and subject to the covenants and conditions set forth in the Lease and
to the rights of any Mortgagee or ground lessor.
ARTICLE EIGHT
MAINTENANCE
8.01 LANDLORD'S MAINTENANCE
Subject to the provisions of Article Fourteen, Landlord shall maintain and make
necessary repairs to the foundations, roofs, exterior walls, and the structural
elements of the Building, the electrical, plumbing, heating, ventilating,
air-conditioning, mechanical, communication, security and the fire and life
safety systems of the Building and those corridors, washrooms, vestibules,
closets and lobbies which are Common Areas of the Building, except that: (a)
Landlord shall not be responsible for the maintenance or repair of any floor or
wall coverings in the Premises or any of such systems which are located within
the Premises and are supplemental or special to the Building's standard systems;
and (b) the cost of performing any of said maintenance or repairs whether to the
Premises or to the Building caused by the negligence of Tenant, its employees,
agents, servants, licensees, subtenants, contractors or invitees, shall be paid
by Tenant, subject to the waivers set forth in Section 16.04. Landlord shall not
be liable to Tenant for any expense, injury, loss or damage resulting from work
done in or upon, or in connection with the use of, any adjacent or nearby
building, land, street or alley; provided, however, that if Landlord builds the
Second Tower, Landlord shall exercise reasonable care that such construction
(excluding noise and traffic disruptions on public streets) shall not materially
and adversely interfere with Tenant's access to the Premises, the Building,
Tenant's parking and Common Areas serving the Premises.
8.02 TENANT'S MAINTENANCE
Subject to the provisions of Articles Fourteen and Fifteen, Tenant, at its
expense, shall keep and maintain the Premises and all Tenant Additions thereto
in good order, condition and repair and in accordance with all Laws and
Environmental Laws. Tenant shall not permit waste and shall promptly and
adequately repair all damages to the Premises and replace or repair all damaged
or broken glass in the interior of the Premises, fixtures or appurtenances. Any
repairs or maintenance shall be completed with materials of similar quality to
the original materials, all such work to be completed under the supervision of
Landlord. Any such repairs or maintenance shall be performed only by contractors
or mechanics approved by Landlord, which approval shall not be unreasonably
withheld, and whose work will not cause or threaten to cause disharmony or
interference with Landlord or other tenants in the Building and their respective
agents and contractors performing work in or about the Building. If Tenant fails
to perform any of its obligations set forth in this Section 8.02, Landlord may,
in its sole discretion and upon 48 hours prior notice to Tenant (but without
notice in the case of emergencies), perform the same, and Tenant shall pay to
Landlord any costs or expenses incurred by Landlord upon demand.
ARTICLE NINE
ALTERATIONS AND IMPROVEMENTS
9.01 TENANT ALTERATIONS
(a) Except for completion of Tenant Work undertaken by Tenant pursuant
to the Workletter, the following provisions shall apply to the completion of any
Tenant Alterations:
(1) Tenant shall not, except as provided herein, without the prior written
consent of Landlord, which consent shall not be unreasonably withheld,
make or cause to be made any Tenant Alterations in or to the Premises or
any Property systems serving the Premises. Prior to making any Tenant
Alterations, Tenant shall give Landlord ten (10) days prior written
notice (or such earlier notice as would be necessary pursuant to
applicable Law) to permit Landlord sufficient time to post appropriate
notices of non-responsibility. Subject to all other requirements of this
Article Nine, Tenant may undertake Decoration work without Landlord's
prior written consent. Tenant shall furnish Landlord with the names and
addresses of all contractors and subcontractors and copies of all
contracts. All Tenant Alterations shall be completed at such time and in
such manner as Landlord may from time to time designate, and only by
contractors or mechanics reasonably approved by Landlord, provided,
however, that Landlord may, in its sole discretion, specify the
engineers and contractors to perform all work relating to the Building's
systems (including the mechanical, heating, plumbing, security,
ventilating, air-conditioning, electrical, communication and the fire
and life safety systems in the Building). The contractors, mechanics and
engineers who may be used are further limited to those whose work will
not cause or threaten to cause disharmony or interference with Landlord
or other tenants in the Building and their respective agents and
contractors performing work in or about the Building. Landlord may
further condition its consent upon Tenant furnishing to Landlord and
Landlord approving prior to the commencement of any work or delivery of
materials to the Premises related to the Tenant Alterations such of the
following as specified by Landlord: architectural plans and
specifications, opinions from Landlord's engineers stating that the
Tenant Alterations will not in any way materially adversely affect the
Building's systems, necessary permits and licenses, certificates of
insurance, and such other documents in such form reasonably requested by
Landlord. Landlord may, in the exercise of reasonable judgment, request
that Tenant provide
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Landlord with appropriate evidence of Tenant's ability to complete and
pay for the completion of the Tenant Alterations such as a performance
bond or letter of credit. Upon completion of the Tenant Alterations,
Tenant shall deliver to Landlord an as-built mylar and digitized (if
available) set of plans and specifications for the Tenant Alterations.
(2) Tenant shall pay the cost of all Tenant Alterations and the cost of
decorating the Premises and any work to the Property occasioned thereby.
In connection with completion of any Tenant Alterations, Tenant shall
pay Landlord a construction supervision fee and all elevator and
hoisting charges at Landlord's then standard rate. Upon completion of
Tenant Alterations, Tenant shall furnish Landlord with contractors'
affidavits and full and final waivers of lien and receipted bills
covering all labor and materials expended and used in connection
therewith and such other documentation reasonably requested by Landlord
or Mortgagee.
(3) Tenant agrees to complete all Tenant Alterations (i) in accordance with
all Laws, Environmental Laws, all requirements of applicable insurance
companies and in accordance with Landlord's standard construction rules
and regulations, and (ii) in a good and workmanlike manner with the use
of good grades of materials. Tenant shall notify Landlord immediately if
Tenant receives any notice of violation of any Law in connection with
completion of any Tenant Alterations and shall immediately take such
steps as are necessary to remedy such violation. In no event shall such
supervision or right to supervise by Landlord nor shall any approvals
given by Landlord under this Lease constitute any warranty by Landlord
to Tenant of the adequacy of the design, workmanship or quality of such
work or materials for Tenant's intended use or of compliance with the
requirements of Section 9.01(a)(3)(i) and (ii) above or impose any
liability upon Landlord in connection with the performance of such work.
(b) All Tenant Additions to the Premises whether installed by Landlord
or Tenant, shall without compensation or credit to Tenant, become part of the
Premises and the property of Landlord at the time of their installation and
shall remain in the Premises, unless pursuant to Article Twelve, Tenant may
remove them or is required to remove them at Landlord's request.
9.02 LIENS
Tenant shall not permit any lien or claim for lien of any mechanic, laborer or
supplier or any other lien to be filed against the Building, the Land, the
Premises, or any other part of the Property arising out of work performed, or
alleged to have been performed by, or at the direction of, or on behalf of
Tenant. If any such lien or claim for lien is filed, Tenant shall within ten
(10) days of receiving notice of such lien or claim (a) have such lien or claim
for lien released of record (whether by filing of a statutory lien release bond
or otherwise) or (b) deliver to Landlord a bond in form, content, amount, and
issued by surety, satisfactory to Landlord, indemnifying, protecting, defending
and holding harmless the Indemnitees against all costs and liabilities resulting
from such lien or claim for lien and the foreclosure or attempted foreclosure
thereof. If Tenant fails to take any of the above actions, Landlord, in addition
to its rights and remedies under Article Eleven, without investigating the
validity of such lien or claim for lien, may pay or discharge the same and
Tenant shall, as payment of additional Rent hereunder, reimburse Landlord upon
demand for the amount so paid by Landlord, including Landlord's expenses and
attorneys' fees.
ARTICLE TEN
ASSIGNMENT AND SUBLETTING
10.01 ASSIGNMENT AND SUBLETTING
(a) Without the prior written consent of Landlord, which may be withheld
in Landlord's sole discretion, Tenant may not sublease, assign, mortgage,
pledge, hypothecate or otherwise transfer or permit the transfer of this Lease
or the encumbering of Tenant's interest therein in whole or in part, by
operation of Law or otherwise or permit the use or occupancy of the Premises, or
any part thereof, by anyone other than Tenant, provided, however, if Landlord
chooses not to recapture the space proposed to be subleased or assigned as
provided in Section 10.02, Landlord shall not unreasonably withhold its consent
to a subletting or assignment under this Section 10.01. Tenant agrees that the
provisions governing sublease and assignment set forth in this Article Ten shall
be deemed to be reasonable. If Tenant desires to enter into any sublease of the
Premises or assignment of this Lease, Tenant shall deliver written notice
thereof to Landlord ("Tenant's Notice"), together with the identity of the
proposed subtenant or assignee and the proposed principal terms thereof and
financial and other information sufficient for Landlord to make an informed
judgment with respect to such proposed subtenant or assignee at least thirty
(30) days prior to the commencement date of the term of the proposed sublease or
assignment. If Tenant proposes to sublease less than all of the Rentable Area of
the Premises, the space proposed to be sublet and the space retained by Tenant
must each be a marketable unit as reasonably determined by Landlord and
otherwise in compliance with all Laws. Landlord shall notify Tenant in writing
of its decision to exercise its rights under Section 10.02 within ten (10) days
after receipt of Tenant's Notice (and all required information). Landlord shall
notify Tenant in writing of its approval or disapproval of the proposed sublease
or assignment within thirty (30) days after receipt of Tenant's Notice (and all
required information). Tenant shall submit for Landlord's approval (which
approval shall not be unreasonably withheld) any advertising materials which
Tenant or its agents intend to use with respect to the space proposed to be
sublet.
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(b) With respect to Landlord's consent to an assignment or sublease,
Landlord may take into consideration any factors which Landlord reasonably may
consider to be relevant, and the reasons for which Landlord's denial shall be
deemed to be reasonable shall include the following:
(i) the business reputation of any proposed subtenant or assignee is not
acceptable to Landlord, taking into account Tenant's continuing
liability under this Lease; or
(ii) in Landlord's reasonable judgment the proposed assignee or
subtenant would diminish the value or reputation of the Building or
Landlord; or
(iii) any proposed assignee's or subtenant's use of the Premises would
violate Section 7.01 of the Lease or would violate the provisions of any
other leases of tenants in the Project;
(iv) the proposed assignee or subtenant is either a governmental agency,
a school or similar operation, or a medical related practice; or
(v) the proposed subtenant or assignee is at the time Tenant seeks
Landlord's consent a bona fide prospective tenant of Landlord in the
Project, as demonstrated by active lease negotiations between such
proposed assignee or subtenant for space that would satisfy such
proposed assignee's or subtenant's entire requirements in the Project;
or
(vi) the proposed subtenant or assignee would materially increase the
estimated pedestrian and vehicular traffic to and from the Premises and
the Building.
In no event shall Landlord be obligated to consider a consent to any proposed
assignment of the Lease which would assign less than the entire Premises. In the
event Landlord wrongfully withholds its consent to any proposed sublease of the
Premises or assignment of the Lease, Tenant's sole and exclusive remedy therefor
shall be to seek specific performance of Landlord's obligations to consent to
such sublease or assignment.
(c) Any sublease or assignment shall be expressly subject to the terms
and conditions of this Lease. Any subtenant or assignee shall execute such
documents as Landlord may reasonably require to evidence such subtenant or
assignee's assumption of the obligations and liabilities of Tenant under this
Lease. Tenant shall deliver to Landlord a copy of all agreements executed by
Tenant and the proposed subtenant and assignee with respect to the Premises.
Landlord's approval of a sublease, assignment, hypothecation, transfer or third
party use or occupancy shall not constitute a waiver of Tenant's obligation to
obtain Landlord's consent to further assignments or subleases, hypothecations,
transfers or third party use or occupancy.
(d) For purposes of this Article Ten, an assignment shall be deemed to
include a change in the majority control of Tenant, resulting from any transfer,
sale or assignment of shares of stock of Tenant occurring by operation of Law or
otherwise if Tenant is a corporation whose shares of stock are not traded
publicly; provided, however, that a sale or transfer of shares in connection
with an initial public offering of Tenant's stock also shall not be deemed an
assignment. If Tenant is a partnership, any change in the general partners of
Tenant shall be deemed to be an assignment. Landlord's rights under Sections
10.02 and 10.03 shall not apply to any deemed assignment under this Section
10.01(d).
(e) Notwithstanding anything to the contrary contained in this Article
Ten and provided there is no uncured default under this Lease, Tenant shall have
the right, without the prior written consent of Landlord, to assign this Lease
to an Affiliate or to sublease the Premises or any part thereof to an Affiliate,
but (i) promptly following the effective date of the assignment or sublease, the
assignee shall execute documents reasonably satisfactory to Landlord to evidence
such assignee's assumption of the obligations and liabilities of Tenant under
this Lease, unless Landlord modifies or waives such requirement in the case of
any assignment which occurs by operation of law (and without a written
assignment) as a consequence of merger, consolidation or non-bankruptcy
reorganization, and the subtenant shall execute documents satisfactory to
Landlord to evidence that the sublease is subject to the terms and conditions of
this Lease and that the subtenant shall perform and be bound by all the terms
and conditions of this Lease (except payment of Monthly Base Rent and Rent
Adjustments hereunder and other obligations which the sublease expressly
provides are to be performed by Tenant as the sublessor) to the extent
applicable to the space and period covered by the sublease; (ii) within ten (10)
days after the effective date of such assignment or sublease, give notice to
Landlord which notice shall include the full name and address of the assignee or
subtenant, and a copy of all agreements executed between Tenant and the assignee
or subtenant with respect to the Premises or part thereof, as may be the case;
and (iii) within fifteen (15) days after Landlord's written request, provide
such reasonable documents or information which Landlord reasonably requests for
the purpose of substantiating whether or not the assignment or sublease is to an
Affiliate. Landlord's rights under Sections 10.02 and 10.03 shall not apply to
any assignment or sublease authorized under this Section 10.01(e).
(f) Notwithstanding any contrary provision of this Article Ten, subject
to Section 1.01(16), Tenant may allow employees of companies to whom Tenant is
providing products or services, or with which Tenant is collaborating in the
development or provision of products or services, to work in the
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Premises without Landlord's consent and without being deemed to have sublet any
portion of the Premises, so long as (A) such employees do not occupy more than
ten percent (10%) of the Rentable Area of the Premises, in the aggregate, at any
one time, and such space is not separately demised from the space occupied by
Tenant and (B) the number of such employees does not exceed ten percent (10%) of
the total number of persons regularly occupying the Premises. Landlord's rights
under Sections 10.02 and 10.03 shall not apply to any transaction authorized
under this Section 10.01(f).
10.02 RECAPTURE
Except as otherwise provided in Section 10.01, in case of an assignment of this
Lease or a sublease of all or any portion of the Premises for a term which
exceeds seventy-five percent (75%) of the remaining Lease Term, Landlord shall
have the option to exclude from the Premises covered by this Lease
("recapture"), the space proposed to be sublet or subject to the assignment,
effective as of the proposed commencement date of such sublease or assignment.
If Landlord elects to recapture, Tenant shall surrender possession of the space
proposed to be subleased or subject to the assignment to Landlord on the
effective date of recapture of such space from the Premises, such date being the
Termination Date for such space. Effective as of the date of recapture of any
portion of the Premises pursuant to this section, the Monthly Base Rent,
Rentable Area of the Premises and Tenant's Share shall be adjusted accordingly.
10.03 EXCESS RENT
Except as otherwise provided in Section 10.01, Tenant shall pay Landlord on the
first day of each month during the term of the sublease or assignment, fifty
percent (50%) of the amount by which the sum of all rent and other consideration
(direct or indirect) due from the subtenant or assignee, and attributable to the
sublease or assignment, for such month exceeds: (i) that portion of the Monthly
Base Rent and Rent Adjustments due under this Lease for said month which is
allocable to the space sublet or assigned; and (ii) the following costs and
expenses for the subletting or assignment of such space: (1) brokerage
commissions and attorneys' fees and expenses, (2) the actual costs paid in
making any improvements or substitutions in the Premises required by any
sublease or assignment; and (3) "free rent" periods, costs of any inducements or
concessions given to subtenant or assignee, moving costs, and other amounts in
respect of such subtenant's or assignee's other leases or occupancy
arrangements. All such costs and expenses shall be amortized over the term of
the sublease or assignment pursuant to sound accounting principles.
10.04 TENANT LIABILITY
In the event of any sublease or assignment, whether or not with Landlord's
consent, Tenant shall not be released or discharged from any liability, whether
past, present or future, under this Lease, including any liability arising from
the exercise of any renewal or expansion option, to the extent such exercise is
expressly permitted by Landlord. Tenant's liability shall remain primary, and in
the event of default by any subtenant, assignee or successor of Tenant in
performance or observance of any of the covenants or conditions of this Lease,
Landlord may proceed directly against Tenant without the necessity of exhausting
remedies against said subtenant, assignee or successor. After any assignment,
Landlord may consent to subsequent assignments or subletting of this Lease, or
amendments or modifications of this Lease with assignees of Tenant, without
notifying Tenant, or any successor of Tenant, and without obtaining its or their
consent thereto, and such action shall not relieve Tenant or any successor of
Tenant of liability under this Lease; provided, however, that no such amendments
or modifications of this Lease shall increase Tenant's liability hereunder
beyond that which existed as of the date of the assignment. If Landlord grants
consent to such sublease or assignment, Tenant shall pay all reasonable
attorneys' fees and expenses incurred by Landlord with respect to such
assignment or sublease. In addition, if Tenant has any options to extend the
term of this Lease or to add other space to the Premises, such options shall not
be available to any subtenant or assignee, directly or indirectly without
Landlord's express written consent, which may be withheld in Landlord's sole
discretion. Such fees and expenses shall not exceed Two Thousand Dollars
($2,000.00) in any single instance.
10.05 ASSUMPTION AND ATTORNMENT
If Tenant shall assign this Lease as permitted herein, the assignee shall
expressly assume all of the obligations of Tenant hereunder in a written
instrument satisfactory to Landlord and furnished to Landlord: (i) in case of an
assignment for which Landlord's consent is not required, not later than fifteen
(15) days after the effective date of the assignment, and (ii) in all other
cases on or before the effective date of the assignment. If Tenant shall
sublease the Premises as permitted herein, Tenant shall, at Landlord's option,
within fifteen (15) days following any request by Landlord, obtain and furnish
to Landlord the written agreement of such subtenant to the effect that the
subtenant will attorn to Landlord and will pay all subrent directly to Landlord.
ARTICLE ELEVEN
DEFAULT AND REMEDIES
11.01 EVENTS OF DEFAULT
The occurrence or existence of any one or more of the following shall constitute
a "Default" by Tenant under this Lease:
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(i) Tenant fails to pay any installment or other payment of Rent
including Rent Adjustment Deposits or Rent Adjustments within three (3)
days after the date when due;
(ii) Tenant fails to observe or perform any of the other
covenants, conditions or provisions of this Lease or the Workletter and
fails to cure such default within fifteen (15) days after written notice
thereof to Tenant, unless (A) the default involves a hazardous
condition, which shall be cured forthwith, or (B) the failure to perform
is a Default for which this Lease specifies there is no cure or grace
period, or (C) more than fifteen (15) days is reasonably needed to cure
such default, in which case Tenant shall not be in Default so long as
Tenant promptly commences and diligently and continuously pursues to
completion all actions required to effect such cure and in all events no
more than a total of ninety (90) days;
(iii) the interest of Tenant in this Lease is levied upon under
execution or other legal process;
(iv) a petition is filed by or against Tenant to declare Tenant
bankrupt or seeking a plan of reorganization or arrangement under any
Chapter of the Bankruptcy Act, or any amendment, replacement or
substitution therefor, or to delay payment of, reduce or modify Tenant's
debts, which in the case of an involuntary action is not discharged
within thirty (30) days;
(v) Tenant is declared insolvent by Law or any assignment of
Tenant's property is made for the benefit of creditors;
(vi) a receiver is appointed for Tenant or Tenant's property,
which appointment is not discharged within thirty (30) days;
(vii) any action taken by or against Tenant to reorganize or
modify Tenant's capital structure in a materially adverse way which in
the case of an involuntary action is not discharged within thirty (30)
days;
(viii) upon the dissolution of Tenant; or
(ix) upon the third occurrence within any Lease Year that Tenant
fails to pay Rent when due or has breached a particular covenant of this
Lease (whether or not such failure or breach is thereafter cured within
any stated cure or grace period or statutory period).
11.02 LANDLORD'S REMEDIES
(a) A Default shall constitute a breach of the Lease for which Landlord
shall have the rights and remedies set forth in this Section 11.02 and all other
rights and remedies set forth in this Lease or now or hereafter allowed by Law,
whether legal or equitable, and all rights and remedies of Landlord shall be
cumulative and, except as otherwise prohibited by applicable Law, none shall
exclude any other right or remedy.
(b) With respect to a Default, at any time Landlord may terminate
Tenant's right to possession by written notice to Tenant stating such election.
Any written notice required pursuant to Section 11.01 shall constitute notice of
unlawful detainer pursuant to California Code of Civil Procedure Section 1161
if, at Landlord's sole discretion, it states Landlord's election that Tenant's
right to possession is terminated after expiration of any period required by Law
or any longer period required by Section 11.01. Upon the expiration of the
period stated in Landlord's written notice of termination (and unless such
notice provides an option to cure within such period and Tenant cures the
Default within such period), Tenant's right to possession shall terminate and
this Lease shall terminate, and Tenant shall remain liable as hereinafter
provided. Upon such termination in writing of Tenant's right to possession,
Landlord shall have the right, subject to applicable Law, to re-enter the
Premises and dispossess Tenant and the legal representatives of Tenant and all
other occupants of the Premises by unlawful detainer or other summary
proceedings, or otherwise as permitted by Law, regain possession of the Premises
and remove their property (including their trade fixtures, personal property and
those Tenant Additions which Tenant is required or permitted to remove under
Article Twelve), but Landlord shall not be obligated to effect such removal, and
such property may, at Landlord's option, be stored elsewhere, sold or otherwise
dealt with as permitted by Law, at the risk of, expense of and for the account
of Tenant, and the proceeds of any sale shall be applied pursuant to Law.
Landlord shall in no event be responsible for the value, preservation or
safekeeping of any such property. Tenant hereby waives all claims for damages
that may be caused by Landlord's removing or storing Tenant's personal property
pursuant to this Section or Section 12.01, and Tenant hereby indemnifies, and
agrees to defend, protect and hold harmless, the Indemnitees from any and all
loss, claims, demands, actions, expenses, liability and cost (including
attorneys' fees and expenses) arising out of or in any way related to such
removal or storage. Upon such written termination of Tenant's right to
possession and this Lease, Landlord shall have the right to recover damages for
Tenant's Default as provided herein or by Law, including the following damages
provided by California Civil Code Section 1951.2:
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(1) the worth at the time of award of the unpaid Rent which had
been earned at the time of termination;
(2) the worth at the time of award of the amount by which the
unpaid Rent which would have been earned after termination until the
time of award exceeds the amount of such Rent loss that Tenant proves
could reasonably have been avoided;
(3) the worth at the time of award of the amount by which the
unpaid Rent for the balance of the term of this Lease after the time of
award exceeds the amount of such Rent loss that Tenant proves could be
reasonably avoided; and
(4) any other amount necessary to compensate Landlord for all
the detriment proximately caused by Tenant's failure to perform its
obligations under this Lease or which in the ordinary course of things
would be likely to result therefrom. The word "rent" as used in this
Section 11.02 shall have the same meaning as the defined term Rent in
this Lease. The "worth at the time of award" of the amount referred to
in clauses (1) and (2) above is computed by allowing interest at the
Default Rate. The worth at the time of award of the amount referred to
in clause (3) above is computed by discounting such amount at the
discount rate of the Federal Reserve Bank of San Francisco at the time
of award plus one percent (1%). For the purpose of determining unpaid
Rent under clause (3) above, the monthly Rent reserved in this Lease
shall be deemed to be the sum of the Monthly Base Rent, monthly storage
space rent, if any, and the amounts last payable by Tenant as Rent
Adjustments for the calendar year in which Landlord terminated this
Lease as provided hereinabove.
(c) Even if Tenant is in Default and/or has abandoned the Premises, this
Lease shall continue in effect for so long as Landlord does not terminate
Tenant's right to possession by written notice as provided in Section 11.02(b)
above, and Landlord may enforce all its rights and remedies under this Lease,
including the right to recover Rent as it becomes due under this Lease. In such
event, Landlord shall have all of the rights and remedies of a landlord under
California Civil Code Section 1951.4 (lessor may continue Lease in effect after
Tenant's Default and abandonment and recover Rent as it becomes due, if Tenant
has the right to sublet or assign, subject only to reasonable limitations), or
any successor statute. During such time as Tenant is in Default, if Landlord has
not terminated this Lease by written notice and if Tenant requests Landlord's
consent to an assignment of this Lease or a sublease of the Premises, subject to
Landlord's option to recapture pursuant to Section 10.02, Landlord shall not
unreasonably withhold its consent to such assignment or sublease. Tenant
acknowledges and agrees that the provisions of Article Ten shall be deemed to
constitute reasonable limitations of Tenant's right to assign or sublet. Tenant
acknowledges and agrees that in the absence of written notice pursuant to
Section 11.02(b) above terminating Tenant's right to possession, no other act of
Landlord shall constitute a termination of Tenant's right to possession or an
acceptance of Tenant's surrender of the Premises, including acts of maintenance
or preservation or efforts to relet the Premises or the appointment of a
receiver upon initiative of Landlord to protect Landlord's interest under this
Lease or the withholding of consent to a subletting or assignment, or
terminating a subletting or assignment, if in accordance with other provisions
of this Lease.
(d) In the event that Landlord seeks an injunction with respect to a
breach or threatened breach by Tenant of any of the covenants, conditions or
provisions of this Lease, Tenant agrees to pay the premium for any bond required
in connection with such injunction.
(e) Tenant hereby waives any and all rights to relief from forfeiture,
redemption or reinstatement granted by Law (including California Civil Code of
Procedure Sections 1174 and 1179) in the event of Tenant being evicted or
dispossessed for any cause or in the event of Landlord obtaining possession of
the Premises by reason of Tenant's Default or otherwise;
(f) When this Lease requires giving or service of a notice, that notice
shall replace rather than supplement any equivalent or similar statutory notice,
including any equivalent or similar notices required by California Code of Civil
Procedure Section 1161 or any similar or successor statute. When a statute
requires service of a notice in a particular manner, service of that notice (or
a similar notice required by this Lease) in the manner required by Article
Twenty-four shall replace and satisfy the statutory service-of-notice
procedures, including those required by Code of Civil Procedure section 1162 or
any similar or successor statute.
(g) The voluntary or other surrender or termination of this Lease, or a
mutual termination or cancellation thereof, shall not work a merger and shall
terminate all or any existing assignments, subleases, subtenancies or
occupancies permitted by Tenant, except if and as otherwise specified in writing
by Landlord.
(h) No delay or omission in the exercise of any right or remedy of
Landlord upon any default by Tenant, and no exercise by Landlord of its rights
pursuant to Section 25.15 to perform any duty which Tenant fails timely to
perform, shall impair any right or remedy or be construed as a waiver. No
provision of this Lease shall be deemed waived by Landlord unless such waiver is
in a writing signed by Landlord. The waiver by Landlord of any breach of any
provision of this Lease shall not be deemed a waiver of any subsequent breach of
the same or any other provision of this Lease.
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11.03 ATTORNEY'S FEES
In the event any party brings any suit or other proceeding with respect to the
subject matter or enforcement of this Lease, the prevailing party (as determined
by the court, agency or other authority before which such suit or proceeding is
commenced) shall, in addition to such other relief as may be awarded, be
entitled to recover attorneys' fees, expenses and costs of investigation as
actually incurred, including court costs, expert witness fees, costs and
expenses of investigation, and all attorneys' fees, costs and expenses in any
such suit or proceeding (including in any action or participation in or in
connection with any case or proceeding under the Bankruptcy Code, 11 United
States Code Sections 101 et seq., or any successor statutes, in establishing or
enforcing the right to indemnification, in appellate proceedings, or in
connection with the enforcement or collection of any judgment obtained in any
such suit or proceeding).
11.04 BANKRUPTCY
The following provisions shall apply in the event of the bankruptcy or
insolvency of Tenant:
(a) In connection with any proceeding under Chapter 7 of the Bankruptcy
Code where the trustee of Tenant elects to assume this Lease for the purposes of
assigning it, such election or assignment, may only be made upon compliance with
the provisions of (b) and (c) below, which conditions Landlord and Tenant
acknowledge to be commercially reasonable. In the event the trustee elects to
reject this Lease then Landlord shall immediately be entitled to possession of
the Premises without further obligation to Tenant or the trustee.
(b) Any election to assume this Lease under Chapter 11 or 13 of the
Bankruptcy Code by Tenant as debtor-in-possession or by Tenant's trustee (the
"Electing Party") must provide for:
The Electing Party to cure or provide to Landlord adequate assurance
that it will cure all monetary defaults under this Lease within fifteen
(15) days from the date of assumption and it will cure all nonmonetary
defaults under this Lease within thirty (30) days from the date of
assumption. Landlord and Tenant acknowledge such condition to be
commercially reasonable.
(c) If the Electing Party has assumed this Lease or elects to assign
Tenant's interest under this Lease to any other person, such interest may be
assigned only if the intended assignee has provided adequate assurance of future
performance (as herein defined), of all of the obligations imposed on Tenant
under this Lease.
For the purposes hereof, "adequate assurance of future performance"
means that Landlord has ascertained that each of the following
conditions has been satisfied:
(i) The assignee has submitted a current financial statement,
certified by its chief financial officer, which shows a net worth and
working capital in amounts sufficient to assure the future performance
by the assignee of Tenant's obligations under this Lease; and
(ii) Landlord has obtained consents or waivers from any third
parties which may be required under a lease, mortgage, financing
arrangement, or other agreement by which Landlord is bound, to enable
Landlord to permit such assignment.
(d) Landlord's acceptance of rent or any other payment from any trustee,
receiver, assignee, person, or other entity will not be deemed to have waived,
or waive, the requirement of Landlord's consent, Landlord's right to terminate
this Lease for any transfer of Tenant's interest under this Lease without such
consent, or Landlord's claim for any amount of Rent due from Tenant.
11.05 LANDLORD'S DEFAULT
Landlord shall be in default hereunder in the event Landlord has not begun and
pursued with reasonable diligence the cure of any failure of Landlord to meet
its obligations hereunder within thirty (30) days after the receipt by Landlord
of written notice from Tenant of the alleged failure to perform. In no event
shall Tenant have the right to terminate or rescind this Lease as a result of
Landlord's default as to any covenant or agreement contained in this Lease.
Tenant hereby waives such remedies of termination and rescission and hereby
agrees that Tenant's remedies for default hereunder and for breach of any
promise or inducement shall be limited to a suit for damages and/or injunction.
In addition, Tenant hereby covenants that, prior to the exercise of any such
remedies, it will give the Mortgagee notice and a reasonable time to cure any
default by Landlord.
ARTICLE TWELVE
SURRENDER OF PREMISES
12.01 IN GENERAL
Upon the Termination Date, Tenant shall surrender and vacate the Premises
immediately and deliver possession thereof to Landlord in a clean, good and
tenantable condition, ordinary wear and tear, and
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damage caused by Landlord or by casualty or condemnation excepted. Tenant shall
deliver to Landlord all keys to the Premises. Tenant shall remove from the
Premises all movable personal property of Tenant and Tenant's trade fixtures,
including, subject to Section 6.04, cabling for any of the foregoing. Tenant
shall be entitled to remove such Tenant Additions which at the time of their
installation Landlord and Tenant agreed may be removed by Tenant. Tenant shall
also remove, as required by Landlord: (a) any existing improvements in the
Initial Premises or any Tenant Alterations hereafter containing Hazardous
Material, if any, and (b) any other Tenant Alterations hereafter except for
those Landlord approves without notice to Tenant identifying which, if any, such
improvements must be removed. Provided however, Landlord shall be required at
the time of approval to so notify Tenant that removal is required only if, at
the time Tenant requests such approval, Tenant's request also specifies in all
capital letters that Landlord must identify any Tenant Alterations which
Landlord will require Tenant to remove and refers to this Section of the Lease,
and if Tenant fails to so specify, then Landlord has the right to require
removal on or about the Termination Date. Notwithstanding the foregoing: (i) if
any of the existing improvements in the Initial Premises or Tenant Additions
hereafter which were installed by Tenant involved the lowering of ceilings,
raising of floors or the installation of specialized wall or floor coverings or
lights, then Tenant shall also be obligated to return such surfaces to their
condition prior to the commencement of this Lease and (ii) Tenant shall also be
required to close any staircases or other openings between floors now existing
or hereafter consented to by Landlord. In the event possession of the Premises
is not delivered to Landlord when required hereunder, or if Tenant shall fail to
remove those items described above, Landlord may (but shall not be obligated
to), at Tenant's expense, remove any of such property and store, sell or
otherwise deal with such property as provided in Section 11.02(b), including the
waiver and indemnity obligations provided in that Section, and undertake, at
Tenant's expense, such restoration work as Landlord deems necessary or
advisable.
12.02 LANDLORD'S RIGHTS
All property which may be removed from the Premises by Landlord shall be
conclusively presumed to have been abandoned by Tenant and Landlord may deal
with such property as provided in Section 11.02(b), including the waiver and
indemnity obligations provided in that Section. Tenant shall also reimburse
Landlord for all costs and expenses incurred by Landlord in removing any of
Tenant Additions and in restoring the Premises to the condition required by this
Lease at the Termination Date.
ARTICLE THIRTEEN
HOLDING OVER
Tenant shall pay Landlord the greater of (i) one hundred fifty percent (150%)
the monthly Rent payable for the month immediately preceding the holding over
(including increases for Rent Adjustments which Landlord may reasonably
estimate) or, (ii) one hundred fifty percent (150%) the fair market rental value
of the Premises as reasonably determined by Landlord for each month or portion
thereof that Tenant retains possession of the Premises, or any portion thereof,
after the Termination Date (without reduction for any partial month that Tenant
retains possession). Tenant shall also pay all damages sustained by Landlord by
reason of such retention of possession. The provisions of this Article shall not
constitute a waiver by Landlord of any re-entry rights of Landlord and Tenant's
continued occupancy of the Premises shall be as a tenancy in sufferance. If
Tenant retains possession of the Premises, or any part thereof for thirty (30)
days after the Termination Date then at the sole option of Landlord expressed by
written notice to Tenant, but not otherwise, such holding over shall constitute
an extension of the Term of this Lease for a period of one (1) year on the same
terms and conditions (including those with respect to the payment of Rent) as
provided in this Lease, except that the Monthly Base Rent for such period shall
be equal to the greater of (i) 150% of the Monthly Base Rent payable during the
month preceding the Termination Date, or (ii) 150% of the monthly base rent then
being quoted by Landlord for similar space in the Building.
ARTICLE FOURTEEN
DAMAGE BY FIRE OR OTHER CASUALTY
14.01 SUBSTANTIAL UNTENANTABILITY
(a) If any fire or other casualty (whether insured or uninsured) renders
all or a substantial portion of the Premises or the Building untenantable,
Landlord shall, with reasonable promptness after the occurrence of such damage,
estimate the length of time that will be required to substantially complete the
repair and restoration and shall by notice advise Tenant of such estimate
("Landlord's Notice"). If Landlord estimates that the amount of time required to
substantially complete such repair and restoration will exceed one hundred
eighty (180) days from the date such damage occurred, then Landlord, or Tenant
if all or a substantial portion of the Premises is rendered untenantable, shall
have the right to terminate this Lease as of the date of such damage upon giving
written notice to the other at any time within twenty (20) days after delivery
of Landlord's Notice, provided that if Landlord so chooses, Landlord's Notice
may also constitute such notice of termination.
(b) Unless this Lease is terminated as provided in the preceding
subparagraph, Landlord shall proceed with reasonable promptness to repair and
restore the Premises and the Building to its condition as existed prior to such
casualty, subject to reasonable delays for insurance adjustments and Force
Majeure delays, and also subject to Laws, including zoning laws and building
codes, then in effect. Landlord shall have no liability to Tenant, and Tenant
shall not be entitled to terminate this Lease if such repairs and
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restoration are not in fact completed within the time period estimated by
Landlord so long as Landlord shall proceed with reasonable diligence to complete
such repairs and restoration.
(c) Tenant acknowledges that Landlord shall be entitled to the full
proceeds of any insurance coverage, whether carried by Landlord or Tenant, for
damages to the Premises, except for those proceeds of Tenant's insurance of its
own personal property and equipment which would be removable by Tenant at the
Termination Date. All such insurance proceeds shall be payable to Landlord
whether or not the Premises are to be repaired and restored, provided, however,
if this Lease is not terminated and the parties proceed to repair and restore
Tenant Additions at Tenant's cost, to the extent Landlord received proceeds of
Tenant's insurance covering Tenant Additions, such proceeds shall be applied to
reimburse Tenant for its cost of repairing and restoring Tenant Additions.
(d) Notwithstanding anything to the contrary herein set forth: (i)
Landlord shall have no duty pursuant to this Section to repair or restore any
portion of any Tenant Additions or to expend for any repair or restoration of
the Premises or Building amounts in excess of insurance proceeds paid to
Landlord and available for repair or restoration; and (ii) Tenant shall not have
the right to terminate this Lease pursuant to this Section if any damage or
destruction was caused by the act or neglect of Tenant, its agent or employees.
Whether or not the Lease is terminated pursuant to this Article Fourteen, in no
event shall Tenant be entitled to any compensation or damages for loss of the
use of the whole or any part of the Premises or for any inconvenience or
annoyance occasioned by any such damage, destruction, rebuilding or restoration
of the Premises or the Building or access thereto.
(e) Any repair or restoration of the Premises performed by Tenant shall
be in accordance with the provisions of Article Nine hereof.
14.02 INSUBSTANTIAL UNTENANTABILITY
If the Premises or the Building is damaged by a casualty but neither is rendered
substantially untenantable and Landlord estimates that the time to substantially
complete the repair or restoration will not exceed one hundred eighty (180) days
from the date such damage occurred, then Landlord shall proceed to repair and
restore the Building or the Premises other than Tenant Additions, with
reasonable promptness, unless such damage is to the Premises and occurs during
the last six (6) months of the Term, in which event either Tenant or Landlord
shall have the right to terminate this Lease as of the date of such casualty by
giving written notice thereof to the other within twenty (20) days after the
date of such casualty. Notwithstanding the foregoing, Landlord's obligation to
repair shall be limited in accordance with the provisions of Section 14.01
above.
14.03 RENT ABATEMENT
Except for the negligence or willful act of Tenant or its agents, employees,
contractors or invitees, if all or any part of the Premises are rendered
untenantable by fire or other casualty and this Lease is not terminated, Monthly
Base Rent and Rent Adjustments shall abate for that part of the Premises which
is untenantable on a per diem basis from the date of the casualty until Landlord
has Substantially Completed the repair and restoration work in the Premises
which it is required to perform, provided, that as a result of such casualty,
Tenant does not occupy the portion of the Premises which is untenantable during
such period.
14.04 WAIVER OF STATUTORY REMEDIES
The provisions of this Lease, including this Article Fourteen, constitute an
express agreement between Landlord and Tenant with respect to any and all damage
to, or destruction of, the Premises or the Property or any part of either, and
any Law, including Sections 1932(2), 1933(4), 1941 and 1942 of the California
Civil Code, with respect to any rights or obligations concerning damage or
destruction shall have no application to this Lease or to any damage to or
destruction of all or any part of the Premises or the Property or any part of
either, and are hereby waived.
ARTICLE FIFTEEN
EMINENT DOMAIN
15.01 TAKING OF WHOLE OR SUBSTANTIAL PART
In the event the whole or any substantial part of the Building or of the
Premises is taken or condemned by any competent authority for any public use or
purpose (including a deed given in lieu of condemnation) and is thereby rendered
untenantable, this Lease shall terminate as of the date title vests in such
authority, and Monthly Base Rent and Rent Adjustments shall be apportioned as of
the Termination Date. Notwithstanding anything to the contrary herein set forth,
in the event the taking is temporary (for less than twelve (12) months or the
remaining term of the Lease, whichever is less), Landlord may elect either (i)
to terminate this Lease or (ii) to permit Tenant to receive the entire award
attributable to the Premises in which case Tenant shall continue to pay Rent and
this Lease shall not terminate.
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15.02 TAKING OF PART
In the event a part of the Building or the Premises is taken or condemned by any
competent authority (or a deed is delivered in lieu of condemnation) and this
Lease is not terminated, the Lease shall be amended to reduce or increase, as
the case may be, the Monthly Base Rent and Tenant's Proportionate Share to
reflect the Rentable Area of the Premises or Building, as the case may be,
remaining after any such taking or condemnation. Landlord, upon receipt and to
the extent of the award in condemnation (or proceeds of sale) shall make
necessary repairs and restorations to the Premises (exclusive of Tenant
Additions) and to the Building to the extent necessary to constitute the portion
of the Building not so taken or condemned as a complete architectural and
economically efficient unit. Notwithstanding the foregoing, if as a result of
any taking, or a governmental order that the grade of any street or alley
adjacent to the Building is to be changed and such taking or change of grade
makes it necessary or desirable to substantially remodel or restore the Building
or prevents the economical operation of the Building, Landlord shall have the
right to terminate this Lease upon ninety (90) days prior written notice to
Tenant.
15.03 COMPENSATION
Landlord shall be entitled to receive the entire award (or sale proceeds) from
any such taking, condemnation or sale without any payment to Tenant, and Tenant
hereby assigns to Landlord Tenant's interest, if any, in such award; provided,
however, Tenant shall have the right separately to pursue against the condemning
authority a separate award in respect of the loss, if any, to Tenant's personal
property, trade fixtures and Tenant Additions paid for by Tenant, as well as
expenses for relocation, without any credit or allowance from Landlord so long
as there is no diminution of Landlord's award as a result.
ARTICLE SIXTEEN
INSURANCE
16.01 TENANT'S INSURANCE
Tenant, at Tenant's expense, agrees to maintain in force, with a company or
companies reasonably acceptable to Landlord, during the Term: (a) Commercial
General Liability Insurance on a primary basis and without any right of
contribution from any insurance carried by Landlord covering the Premises on an
occurrence basis against all claims for personal injury, bodily injury, death
and property damage, including contractual liability covering the
indemnification provisions in this Lease. Such insurance shall be for such
limits that are reasonably required by Landlord from time to time but not less
than a combined single limit of Five Million and No/100 Dollars ($5,000,000.00);
(b) Workers' Compensation and Employers' Liability Insurance to the extent
required by and in accordance with the Laws of the State of California; (c) "All
Risks" property insurance in an amount adequate to cover the full replacement
cost of all Tenant Additions to the Premises, equipment, installations, fixtures
and contents of the Premises in the event of loss; (d) In the event a motor
vehicle is to be used by Tenant in connection with its business operation from
the Premises, Comprehensive Automobile Liability Insurance coverage with limits
of not less than Three Million and No/100 Dollars ($3,000,000.00) combined
single limit coverage against bodily injury liability and property damage
liability arising out of the use by or on behalf of Tenant, its agents and
employees in connection with this Lease, of any owned, non-owned or hired motor
vehicles; and (e) such other insurance or coverages as Landlord reasonably
requires and customarily are maintained by tenants of the Comparable Buildings.
16.02 FORM OF POLICIES
Each policy referred to in 16.01 shall satisfy the following requirements. Each
policy shall (i) name Landlord and the Indemnitees as additional insureds
(except Workers' Compensation and Employers' Liability Insurance), (ii) be
issued by one or more responsible insurance companies licensed to do business in
the State of California reasonably satisfactory to Landlord, (iii) where
applicable, provide for deductible amounts satisfactory to Landlord and not
permit co-insurance, (iv) shall provide that such insurance may not be canceled
or amended without ten (10) days' prior written notice to the Landlord, and (v)
each policy of "All-Risks" property insurance shall provide that the policy
shall not be invalidated should the insured waive in writing prior to a loss,
any or all rights of recovery against any other party for losses covered by such
policies. Tenant shall deliver to Landlord, certificates for all policies and
renewals thereof to be maintained by Tenant hereunder, prior to the Commencement
Date and not less than ten (10) days prior to the expiration date of each
policy.
16.03 LANDLORD'S INSURANCE
Landlord agrees to purchase and keep in full force and effect during the Term
hereof, including any extensions or renewals thereof, insurance under policies
issued by insurers of recognized responsibility, qualified to do business in the
State of California on the Building in amounts not less than the greater of
eighty (80%) percent of the then full replacement cost (without depreciation) of
the Building (above foundations and excluding Tenant Additions to the Premises)
or an amount sufficient to prevent Landlord from becoming a co-insurer under the
terms of the applicable policies, against fire and such other risks as may be
included in standard forms of all risk coverage insurance reasonably available
from time to time. Landlord agrees to maintain in force during the Term,
Commercial General Liability Insurance covering the Building on an occurrence
basis against all claims for personal injury, bodily injury, death and property
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damage. Such insurance shall be for a combined single limit of Five Million and
No/100 Dollars ($5,000,000.00). Neither Landlord's obligation to carry such
insurance nor the carrying of such insurance shall be deemed to be an indemnity
by Landlord with respect to any claim, liability, loss, cost or expense due, in
whole or in part, to Tenant's negligent acts or omissions or willful misconduct.
Without obligation to do so, Landlord may, in its sole discretion from time to
time, carry insurance in amounts greater and/or for coverage additional to the
coverage and amounts set forth above.
16.04 WAIVER OF SUBROGATION
(a) Landlord agrees that, if obtainable at no, or minimal, additional
cost, and so long as the same is permitted under the laws of the State of
California, it will include in its "All Risks" policies appropriate clauses
pursuant to which the insurance companies (i) waive all right of subrogation
against Tenant with respect to losses payable under such policies and/or (ii)
agree that such policies shall not be invalidated should the insured waive in
writing prior to a loss any or all right of recovery against any party for
losses covered by such policies.
(b) Tenant agrees to include, if obtainable at no, or minimal,
additional cost, and so long as the same is permitted under the laws of the
State of California, in its "All Risks" insurance policy or policies on Tenant
Additions to the Premises, whether or not removable, and on Tenant's furniture,
furnishings, fixtures and other property removable by Tenant under the
provisions of this Lease appropriate clauses pursuant to which the insurance
company or companies (i) waive the right of subrogation against Landlord and/or
any tenant of space in the Building with respect to losses payable under such
policy or policies and/or (ii) agree that such policy or policies shall not be
invalidated should the insured waive in writing prior to a loss any or all right
of recovery against any party for losses covered by such policy or policies. If
Tenant is unable to obtain in such policy or policies either of the clauses
described in the preceding sentence, Tenant shall, if legally possible and
without necessitating a change in insurance carriers, have Landlord named in
such policy or policies as an additional insured. If Landlord shall be named as
an additional insured in accordance with the foregoing, Landlord agrees to
endorse promptly to the order of Tenant, without recourse, any check, draft, or
order for the payment of money representing the proceeds of any such policy or
representing any other payment growing out of or connected with said policies,
and Landlord does hereby irrevocably waive any and all rights in and to such
proceeds and payments.
(c) Provided that Landlord's right of full recovery under its policy or
policies aforesaid is not adversely affected or prejudiced thereby, Landlord
hereby waives any and all right of recovery which it might otherwise have
against Tenant, its servants, agents and employees, for loss or damage occurring
to the Real Property and the fixtures, appurtenances and equipment therein,
except Tenant Additions, to the extent the same is covered by Landlord's
insurance, notwithstanding that such loss or damage may result from the
negligence or fault of Tenant, its servants, agents or employees. Provided that
Tenant's right of full recovery under its aforesaid policy or policies is not
adversely affected or prejudiced thereby, Tenant hereby waives any and all right
of recovery which it might otherwise have against Landlord, its servants, and
employees and against every other tenant of the Real Property who shall have
executed a similar waiver as set forth in this Section 16.04 (c) for loss or
damage to Tenant Additions, whether or not removable, and to Tenant's furniture,
furnishings, fixtures and other property removable by Tenant under the
provisions hereof to the extent the same is coverable by Tenant's insurance
required under this Lease, notwithstanding that such loss or damage may result
from the negligence or fault of Landlord, its servants, agents or employees, or
such other tenant and the servants, agents or employees thereof.
(d) Landlord and Tenant hereby agree to advise the other promptly if the
clauses to be included in their respective insurance policies pursuant to
subparagraphs (a) and (b) above cannot be obtained on the terms hereinbefore
provided and thereafter to furnish the other with a certificate of insurance or
copy of such policies showing the naming of the other as an additional insured,
as aforesaid. Landlord and Tenant hereby also agree to notify the other promptly
of any cancellation or change of the terms of any such policy which would affect
such clauses or naming. All such policies which name both Landlord and Tenant as
additional insureds shall, to the extent obtainable, contain agreements by the
insurers to the effect that no act or omission of any additional insured will
invalidate the policy as to the other additional insureds.
16.05 NOTICE OF CASUALTY
Tenant shall give Landlord notice in case of a fire or accident in the Premises
promptly after Tenant is aware of such event.
ARTICLE SEVENTEEN
WAIVER OF CLAIMS AND INDEMNITY
17.01 WAIVER OF CLAIMS
To the extent permitted by Law, Tenant releases the Indemnitees from, and waives
all claims for, damage to person or property sustained by the Tenant or any
occupant of the Premises or the Property resulting directly or indirectly from
any existing or future condition, defect, matter or thing in and about the
Premises or the Property or any part of either or any equipment or appurtenance
therein, or resulting from any accident in or about the Premises or the
Property, or resulting directly or indirectly from any act or neglect of any
tenant or
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occupant of the Property or of any other person, including Landlord's agents and
servants, except to the extent caused by the gross negligence or willful
misconduct of any of Indemnitees, but the foregoing exception is subject to and
shall not diminish any waivers by Tenant or Landlord or their respective
insurers in effect in accordance with Section 16.04. To the extent permitted by
Law, Tenant hereby waives any consequential damages, compensation or claims for
inconvenience or loss of business, rents, or profits as a result of such injury
or damage, whether or not caused by the gross negligence or willful misconduct
of any of Indemnitees. If any such damage, whether to the Premises or the
Property or any part of either, or whether to Landlord or to other tenants in
the Property, results from any act or neglect of Tenant, its employees,
servants, agents, contractors, invitees or customers, Tenant shall be liable
therefor and Landlord may, at Landlord's option, repair such damage and Tenant
shall, upon demand by Landlord, as payment of additional Rent hereunder,
reimburse Landlord within ten (10) days of demand for the total cost of such
repairs, in excess of amounts, if any, paid to Landlord under insurance covering
such damages. Tenant shall not be liable for any such damage caused by its acts
or neglect if Landlord or a tenant has recovered for the damage from proceeds of
insurance policies and the insurance company has waived its right of subrogation
against Tenant.
17.02 INDEMNITY BY TENANT
To the extent permitted by Law, Tenant hereby indemnifies, and agrees to
protect, defend and hold the Indemnitees harmless, against any and all actions,
claims, demands, liability, costs and expenses, including attorneys' fees and
expenses for the defense thereof, arising from Tenant's occupancy of the
Premises, from the undertaking of any Tenant Additions or repairs to the
Premises, from the conduct of Tenant's business on the Premises, or from any
breach or default on the part of Tenant in the performance of any covenant or
agreement on the part of Tenant to be performed pursuant to the terms of this
Lease, or from any willful act or negligence of Tenant, its agents, contractors,
servants, employees, customers or invitees, in or about the Premises or the
Property or any part of either. In case of any action or proceeding brought
against the Indemnitees by reason of any such claim, upon notice from Landlord,
Tenant covenants to defend such action or proceeding by counsel chosen by
Landlord, in Landlord's sole discretion. Landlord reserves the right to settle,
compromise or dispose of any and all actions, claims and demands related to the
foregoing indemnity. The foregoing indemnity shall not operate to relieve any
Indemnitee of liability to the extent its share of such liability is caused by
its gross negligence or willful misconduct. Further, the foregoing indemnity and
exception is subject to and shall not diminish any waivers in effect in
accordance with Section 16.04 by Landlord or its insurers to the extent of
amounts, if any, paid to Landlord under its "All-Risks" property insurance.
ARTICLE EIGHTEEN
RULES AND REGULATIONS
18.01 RULES
Tenant agrees for itself and for its subtenants, employees, agents, and invitees
to comply with the rules and regulations listed on Exhibit C attached hereto and
with all reasonable modifications and additions thereto which Landlord may make
from time to time. In the case of any conflict between this Lease and the rules
and regulations, this Lease shall control.
18.02 ENFORCEMENT
Nothing in this Lease shall be construed to impose upon the Landlord any duty or
obligation to enforce the rules and regulations as set forth on Exhibit C or as
hereafter adopted, or the terms, covenants or conditions of any other lease as
against any other tenant, and the Landlord shall not be liable to the Tenant for
violation of the same by any other tenant, its servants, employees, agents,
visitors or licensees. Landlord shall use reasonable efforts to enforce the
rules and regulations of the Building in a uniform and non-discriminatory
manner.
ARTICLE NINETEEN
LANDLORD'S RESERVED RIGHTS
Landlord shall have the following rights exercisable without notice to Tenant
(except as hereinbelow provided) and without liability to Tenant for damage or
injury to persons, property or business and without being deemed an eviction or
disturbance of Tenant's use or possession of the Premises or giving rise to any
claim for offset or abatement of Rent: (1) to change the Building's name or
street address upon thirty (30) days' prior written notice to Tenant; (2) to
install, affix and maintain all signs on the exterior and/or interior of the
Building; (3) to designate and/or approve prior to installation, all types of
signs, window shades, blinds, drapes, awnings or other similar items, and all
internal lighting that may be visible from the exterior of the Premises; (4)
upon reasonable notice to Tenant, to display the Premises to prospective
purchasers at reasonable hours at any time during the Term and to prospective
tenants at reasonable hours during the last twelve (12) months of the Term; (5)
to grant to any party the exclusive right to conduct any business or render any
service in or to the Building, provided such exclusive right shall not operate
to prohibit Tenant from using the Premises for the purpose permitted hereunder;
(6) to change the arrangement and/or location of entrances or passageways, doors
and doorways, corridors, elevators, stairs, washrooms or public portions of the
Building, and to close entrances, doors, corridors, elevators or other
facilities, provided that such action
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shall not materially and adversely interfere with Tenant's access to the
Premises or the Building or the appurtenant areas serving the Premises and the
Building; (7) to have access for Landlord and other tenants of the Building to
any mail chutes and boxes located in or on the Premises as required by any
applicable rules of the United States Post Office; and (8) to close the Building
after Standard Operating Hours, except that Tenant and its employees and
invitees shall be entitled to admission at all times, under such regulations as
Landlord prescribes for security purposes.
ARTICLE TWENTY
ESTOPPEL CERTIFICATE
20.01 IN GENERAL
Within fifteen (15) days after request therefor by Landlord, Mortgagee or any
prospective mortgagee or owner, Tenant agrees as directed in such request to
execute an Estoppel Certificate in recordable form, binding upon Tenant as
against any Mortgagee or prospective mortgagee or purchaser, certifying (i) that
this Lease is unmodified and in full force and effect (or if there have been
modifications, a description of such modifications and that this Lease as
modified is in full force and effect); (ii) the dates to which Rent has been
paid; (iii) that Tenant is in the possession of the Premises if that is the
case; (iv) that to Tenant's knowledge Landlord is not in default under this
Lease, or, if Tenant believes Landlord is in default, the nature thereof in
detail; (v) that Tenant has no offsets or defenses to the performance of its
obligations under this Lease (or if Tenant believes there are any offsets or
defenses, a full and complete explanation thereof); (vi) that the Premises have
been completed in accordance with the terms and provisions hereof or the
Workletter, that Tenant has accepted the Premises and the condition thereof and
of all improvements thereto and has no claims against Landlord or any other
party with respect thereto; (vii) that if an assignment of rents or leases has
been served upon the Tenant by a Mortgagee, Tenant will acknowledge receipt
thereof and agree to be bound by the provisions thereof; (viii) that Tenant will
give to the Mortgagee copies of all notices required or permitted to be given by
Tenant to Landlord; and (ix) to any other information reasonably requested.
20.02 ENFORCEMENT
In the event that Tenant fails to deliver an Estoppel Certificate and such
failure continues for more than ten (10) days after request, then such failure
shall be a Default for which there shall be no cure or grace period. In addition
to any other remedy available to Landlord, Landlord may impose a charge equal to
$500.00 for each day that Tenant thereafter fails after such ten (10) days prior
to deliver an Estoppel Certificate.
ARTICLE TWENTY-ONE
RELOCATION OF TENANT
(Intentionally Omitted)
ARTICLE TWENTY-TWO
REAL ESTATE BROKERS
Tenant represents that, except for the broker(s) listed in Section 1.01(18),
Tenant has not dealt with any real estate broker, sales person, or finder in
connection with this Lease, and no such person initiated or participated in the
negotiation of this Lease, or showed the Premises to Tenant. Tenant hereby
agrees to indemnify, protect, defend and hold Landlord and the Indemnitees,
harmless from and against any and all liabilities and claims for commissions and
fees arising out of a breach of the foregoing representation. Landlord agrees to
pay any commission to which Landlord's Broker listed in Section 1.01(18) is
entitled in connection with this Lease pursuant to Landlord's written agreement
with such broker. Landlord and Tenant agree that any commission payable to
Tenant's Broker shall be paid by Tenant except to the extent Tenant's Broker and
Landlord's Broker have entered into a separate agreement between themselves to
share the commission paid to Landlord's Broker by Landlord.
ARTICLE TWENTY-THREE
MORTGAGEE PROTECTION
23.01 SUBORDINATION AND ATTORNMENT
(a) Subject to Section 23.01(b) hereof, this Lease is and shall be
expressly subject and subordinate at all times to (i) any ground or underlying
lease of the Real Property, now or hereafter existing, and all amendments,
extensions, renewals and modifications to any such lease, and (ii) the lien of
any mortgage or trust deed now or hereafter encumbering fee title to the Real
Property and/or the leasehold estate under any such lease, and all amendments,
extensions, renewals, replacements and modifications of such mortgage or trust
deed and/or the obligation secured thereby, unless such ground lease or ground
lessor, or mortgage, trust deed or Mortgagee, expressly provides or elects that
the Lease shall be superior to such lease or mortgage or trust deed. If any such
mortgage or trust deed is foreclosed (including any sale of the Real Property
pursuant to a power of sale), or if any such lease is terminated, upon request
of the Mortgagee or ground lessor, as the case may be, Tenant shall attorn to
the purchaser at the foreclosure sale or to the ground lessor under such lease,
as the case may be, provided, however, that such purchaser or
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ground lessor shall not be (i) bound by any payment of Rent for more than one
month in advance except payments in the nature of security for the performance
by Tenant of its obligations under this Lease; (ii) subject to any offset,
defense or damages arising out of a default of any obligations of any preceding
Landlord; or (iii) bound by any amendment or modification of this Lease made
without the written consent of the Mortgagee or ground lessor; or (iv) liable
for any security deposits not actually received in cash by such purchaser or
ground lessor. This subordination shall be self-operative and no further
certificate or instrument of subordination need be required by any such
Mortgagee or ground lessor. In confirmation of such subordination, however,
Tenant shall execute promptly any reasonable certificate or instrument that
Landlord, Mortgagee or ground lessor may request. Upon request by such successor
in interest, Tenant shall execute and deliver reasonable instruments confirming
the attornment provided for herein.
(b) Notwithstanding any provision of the Lease to the contrary, provided
that: (i) Tenant pays any fees and costs associated with requesting a
nondisturbance agreement, (ii) executes and delivers a subordination,
nondisturbance and attornment agreement substantially in the form of Exhibit E
hereto, with such changes thereto as any lessor under a ground or underlying
lease or mortgagee or beneficiary may reasonably require ("Nondisturbance
Agreement") and complies with the provisions thereof, and (iii) Tenant is not in
default under this Lease, no termination of any ground lease or underlying lease
and no foreclosure, sale pursuant to power of sale or conveyance by deed in lieu
of foreclosure shall affect Tenant's rights under this Lease, except to the
extent provided by such NonDisturbance Agreement. Landlord's inability to obtain
the signature of any such lessor or Mortgagee on any such Nondisturbance
Agreement shall not constitute a default by Landlord under this Lease, but so
long as default by Tenant under this Lease is not the reason for Landlord's
inability to obtain such signature, any such lessor or Mortgagee shall be deemed
to have elected that this Lease be superior to the lease, mortgage or deed of
trust in question, and Tenant shall, at the request of such lessor, mortgagee or
beneficiary (or purchaser at any sale pursuant to the mortgage or deed of
trust), attorn to any such party or enter into a new lease with such party (as
Landlord) for the balance of the Term then remaining hereunder upon the same
terms and conditions as those herein, provided, however, that such party shall
not be (i) bound by any payment of Rent for more than one month in advance
except payments in the nature of security for the performance by Tenant of its
obligations under this Lease; (ii) subject to any offset, defense or damages
arising out of a default of any obligations of any preceding Landlord; or (iii)
bound by any amendment or modification of this Lease made without the written
consent of the Mortgagee or ground lessor; or (iv) liable for any security
deposits not actually received in cash by such purchaser or ground lessor. Upon
request by such successor in interest, Tenant shall execute and deliver
reasonable instruments confirming the attornment provided for herein
23.02 MORTGAGEE PROTECTION
Tenant agrees to give any Mortgagee or ground lessor, by registered or certified
mail, a copy of any notice of default served upon the Landlord by Tenant,
provided that prior to such notice Tenant has received notice (by way of service
on Tenant of a copy of an assignment of rents and leases, or otherwise) of the
address of such Mortgagee or ground lessor. Tenant further agrees that if
Landlord shall have failed to cure such default within the time provided for in
this Lease, then the Mortgagee or ground lessor shall have an additional thirty
(30) days after receipt of notice thereof within which to cure such default or
if such default cannot be cured within that time, then such additional notice
time as may be necessary, if, within such thirty (30) days, any Mortgagee or
ground lessor has commenced and is diligently pursuing the remedies necessary to
cure such default (including appointment of a receiver or commencement of
foreclosure proceedings or other proceedings to acquire possession of the Real
Property, if necessary to effect such cure). Such period of time shall be
extended by any period within which such Mortgagee or ground lessor is prevented
from commencing or pursuing such foreclosure proceedings or other proceedings to
acquire possession of the Real Property by reason of Landlord's bankruptcy.
Until the time allowed as aforesaid for Mortgagee or ground lessor to cure such
defaults has expired without cure, Tenant shall have no right to, and shall not,
terminate this Lease on account of default. This Lease may not be modified or
amended so as to reduce the Rent or shorten the Term, or so as to adversely
affect in any other respect to any material extent the rights of the Landlord,
nor shall this Lease be canceled or surrendered, without the prior written
consent, in each instance, of the ground lessor or the Mortgagee.
ARTICLE TWENTY-FOUR
NOTICES
(a) All notices, demands or requests provided for or permitted to be
given pursuant to this Lease must be in writing and shall be personally
delivered, sent by Federal Express or other reputable overnight courier service,
or mailed by first class, registered or certified United States mail, return
receipt requested, postage prepaid.
(b) All notices, demands or requests to be sent pursuant to this Lease
shall be deemed to have been properly given or served by delivering or sending
the same in accordance with this Section, addressed to the parties hereto at
their respective addresses listed in Sections 1.01(2) and (3).
(c) Notices, demands or requests sent by mail or overnight courier
service as described above shall be effective upon deposit in the mail or with
such courier service. However, the time period in which a response to any such
notice, demand or request must be given shall commence to run from (i) in the
case of delivery by mail, the date of receipt on the return receipt of the
notice, demand or request by the addressee
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thereof, or (ii) in the case of delivery by Federal Express or other overnight
courier service, the date of acceptance of delivery by an employee, officer,
director or partner of Landlord or Tenant. Rejection or other refusal to accept
or the inability to deliver because of changed address of which no notice was
given, as indicated by advice from Federal Express or other overnight courier
service or by mail return receipt, shall be deemed to be receipt of notice,
demand or request sent. Notices may also be served by personal service upon any
officer, director or partner of Landlord or Tenant, and shall be effective upon
such service.
(d) By giving to the other party at least thirty (30) days written
notice thereof, either party shall have the right from time to time during the
term of this Lease to change their respective addresses for notices, statements,
demands and requests, provided such new address shall be within the United
States of America.
ARTICLE TWENTY-FIVE
MISCELLANEOUS
25.01 LATE CHARGES
(a) All payments required hereunder (other than the Monthly Base Rent,
Rent Adjustments, and Rent Adjustment Deposits, which shall be due as
hereinbefore provided) to Landlord shall be paid within ten (10) days after
Landlord's demand therefor. All such amounts (including Monthly Base Rent, Rent
Adjustments, and Rent Adjustment Deposits) not paid when due shall bear interest
from the date due until the date paid at the Default Rate in effect on the date
such payment was due.
(b) In the event Tenant is more than five (5) days late in paying any
installment of Rent due under this Lease, Tenant shall pay Landlord a late
charge equal to three percent (3%) of the delinquent installment of Rent. The
parties agree that (i) such delinquency will cause Landlord to incur costs and
expenses not contemplated herein, the exact amount of which will be difficult to
calculate, including the cost and expense that will be incurred by Landlord in
processing each delinquent payment of rent by Tenant, (ii) the amount of such
late charge represents a reasonable estimate of such costs and expenses and that
such late charge shall be paid to Landlord for each delinquent payment in
addition to all Rent otherwise due hereunder. The parties further agree that the
payment of late charges and the payment of interest provided for in subparagraph
(a) above are distinct and separate from one another in that the payment of
interest is to compensate Landlord for its inability to use the money improperly
withheld by Tenant, while the payment of late charges is to compensate Landlord
for its additional administrative expenses in handling and processing delinquent
payments. Notwithstanding the foregoing, on no more than one occasion during
each twelve (12) months during the Lease Term, Landlord shall provide Tenant
with a notice of delinquency and no late charge shall be due if Tenant pays the
delinquent amount within five (5) days after receipt of such notice.
(c) Payment of interest at the Default Rate and/or of late charges shall
not excuse or cure any default by Tenant under this Lease, nor shall the
foregoing provisions of this Article or any such payments prevent Landlord from
exercising any right or remedy available to Landlord upon Tenant's failure to
pay Rent when due, including the right to terminate this Lease.
25.02 NO JURY TRIAL; VENUE; JURISDICTION
Each party hereto (which includes any assignee, successor, heir or personal
representative of a party) shall not seek a jury trial, hereby waives trial by
jury, and hereby further waives any objection to venue in the County in which
the Project is located, and agrees and consents to personal jurisdiction of the
courts of the State of California, in any action or proceeding or counterclaim
brought by any party hereto against the other on any matter whatsoever arising
out of or in any way connected with this Lease, the relationship of Landlord and
Tenant, Tenant's use or occupancy of the Premises, or any claim of injury or
damage, or the enforcement of any remedy under any statute, emergency or
otherwise, whether any of the foregoing is based on this Lease or on tort law.
No party will seek to consolidate any such action in which a jury has been
waived with any other action in which a jury trial cannot or has not been
waived. It is the intention of the parties that these provisions shall be
subject to no exceptions. By execution of this Lease the parties agree that this
provision may be filed by any party hereto with the clerk or judge before whom
any action is instituted, which filing shall constitute the written consent to a
waiver of jury trial pursuant to and in accordance with Section 631 of the
California Code of Civil Procedure. No party has in any way agreed with or
represented to any other party that the provisions of this Section will not be
fully enforced in all instances. The provisions of this Section shall survive
the expiration or earlier termination of this Lease.
25.03 DEFAULT UNDER OTHER LEASE
It shall be a Default under this Lease if Tenant under any other lease with
Landlord for premises in the Project defaults under such lease and as a result
thereof such lease is terminated or terminable.
25.04 OPTION
This Lease shall not become effective as a lease or otherwise until executed and
delivered by both Landlord and Tenant. The submission of the Lease to Tenant
does not constitute a reservation of or option for the
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Premises, but when executed by Tenant and delivered to Landlord, the Lease
shall constitute an irrevocable offer by Tenant in effect for fifteen (15) days
to lease the Premises on the terms and conditions herein contained.
25.05 TENANT AUTHORITY
Tenant represents and warrants to Landlord that it has full authority and power
to enter into and perform its obligations under this Lease, that the person
executing this Lease is fully empowered to do so, and that no consent or
authorization is necessary from any third party. Landlord may request that
Tenant provide Landlord evidence of Tenant's authority.
25.06 ENTIRE AGREEMENT
This Lease, the Exhibits attached hereto and the Workletter contain the entire
agreement between Landlord and Tenant concerning the Premises and there are no
other agreements, either oral or written, and no other representations or
statements, either oral or written, on which Tenant has relied. This Lease shall
not be modified except by a writing executed by Landlord and Tenant.
25.07 MODIFICATION OF LEASE FOR BENEFIT OF MORTGAGEE
If Mortgagee of Landlord requires a modification of this Lease which shall not
result in any increased cost or expense to Tenant or in any other substantial
and adverse change in the rights and obligations of Tenant hereunder, then
Tenant agrees that the Lease may be so modified.
25.08 EXCULPATION
Tenant agrees, on its behalf and on behalf of its successors and assigns, that
any liability or obligation of Landlord in connection with this Lease shall only
be enforced against Landlord's equity interest in the Property up to a maximum
of Five Million Dollars ($5,000,000.00) and in no event against any other assets
of the Landlord, or Landlord's officers or directors or partners, and that any
liability of Landlord with respect to this Lease shall be so limited and Tenant
shall not be entitled to any judgment in excess of such amount.
25.09 ACCORD AND SATISFACTION
No payment by Tenant or receipt by Landlord of a lesser amount than any
installment or payment of Rent due shall be deemed to be other than on account
of the amount due, and no endorsement or statement on any check or any letter
accompanying any check or payment of Rent shall be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such installment or payment of Rent
or pursue any other remedies available to Landlord. No receipt of money by
Landlord from Tenant after the termination of this Lease or Tenant's right of
possession of the Premises shall reinstate, continue or extend the Term. Receipt
or acceptance of payment from anyone other than Tenant, including an assignee of
Tenant, is not a waiver of any breach of Article Ten, and Landlord may accept
such payment on account of the amount due without prejudice to Landlord's right
to pursue any remedies available to Landlord.
25.10 LANDLORD'S OBLIGATIONS ON SALE OF BUILDING
In the event of any sale or other transfer of the Building, Landlord shall be
entirely freed and relieved of all agreements and obligations of Landlord
hereunder accruing or to be performed after the date of such sale or transfer,
and any remaining liability of Landlord with respect to this Lease shall be
limited to Five Million Dollars ($5,000,000.00) and Tenant shall not be entitled
to any judgment in excess of such amount.
25.11 BINDING EFFECT
Subject to the provisions of Article Ten, this Lease shall be binding upon and
inure to the benefit of Landlord and Tenant and their respective heirs, legal
representatives, successors and permitted assigns.
25.12 CAPTIONS
The Article and Section captions in this Lease are inserted only as a matter of
convenience and in no way define, limit, construe, or describe the scope or
intent of such Articles and Sections.
25.13 TIME; APPLICABLE LAW; CONSTRUCTION
Time is of the essence of this Lease and each and all of its provisions. This
Lease shall be construed in accordance with the Laws of the State of California.
If more than one person signs this Lease as Tenant, the obligations hereunder
imposed shall be joint and several. If any term, covenant or condition of this
Lease or the application thereof to any person or circumstance shall, to any
extent, be invalid or unenforceable, the remainder of this Lease, or the
application of such term, covenant or condition to persons or circumstances
other than those as to which it is held invalid or unenforceable, shall not be
affected thereby and each item, covenant or condition of this Lease shall be
valid and be enforced to the fullest extent permitted by Law.
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Wherever the term "including" or "includes" is used in this Lease, it shall have
the same meaning as if followed by the phrase "but not limited to". The language
in all parts of this Lease shall be construed according to its normal and usual
meaning and not strictly for or against either Landlord or Tenant.
25.14 ABANDONMENT
(Intentionally Omitted)
25.15 LANDLORD'S RIGHT TO PERFORM TENANT'S DUTIES
If Tenant fails timely to perform any of its duties under this Lease or the
Workletter, Landlord shall have the right (but not the obligation), to perform
such duty on behalf and at the expense of Tenant with not less than three (3)
days prior notice to Tenant (except in the case of an emergency, or in which
case notice as is reasonable under the circumstances), and all sums expended or
expenses incurred by Landlord in performing such duty shall be deemed to be
additional Rent under this Lease and shall be due and payable upon demand by
Landlord.
25.16 SECURITY SYSTEM
Landlord shall not be obligated to provide or maintain any security patrol or
security system. Landlord shall not be responsible for the quality of any such
patrol or system which may be provided hereunder or for damage or injury to
Tenant, its employees, invitees or others due to the failure, action or inaction
of such patrol or system.
25.17 NO LIGHT, AIR OR VIEW EASEMENTS
Any diminution or shutting off of light, air or view by any structure which may
be erected on lands of or adjacent to the Project shall in no way affect this
Lease or impose any liability on Landlord.
25.18 RECORDATION
Neither this Lease, nor any notice nor memorandum regarding the terms hereof,
shall be recorded by Tenant. Any such unauthorized recording shall be a Default
for which there shall be no cure or grace period. Tenant agrees to execute and
acknowledge, at the request of Landlord, a memorandum of this Lease, in
recordable form.
25.19 SURVIVAL
The waivers of the right of jury trial, the other waivers of claims or rights,
the releases and the obligations of Tenant under this Lease to indemnify,
protect, defend and hold harmless Landlord and/or Indemnitees shall survive the
expiration or termination of this Lease, and so shall all other obligations or
agreements which by their terms survive expiration or termination of the Lease.
25.20 RIDERS
All Riders attached hereto and executed both by Landlord and Tenant shall be
deemed to be a part hereof and hereby incorporated herein.
IN WITNESS WHEREOF, this Lease has been executed as of the date set forth in
Section 1.01(4) hereof.
<TABLE>
<CAPTION>
TENANT: LANDLORD:
<S> <C>
Calico Commerce, Inc., Metropolitan Life Insurance Company,
a Delaware corporation a New York corporation
By /s/ Alan Naumann By /s/ Edward J. Hayes
-------------------------------- ---------------------------------
Its President and CEO Its Assistant Vice President
-------------------------------- ---------------------------------
(Chairman of Board, President or
Vice President
By /s/ Arthur F. Knapp, Jr
--------------------------------
Its VP/CFO
--------------------------------
(Secretary, Assistant Secretary,
CFO or Assistant Treasurer)
</TABLE>
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EXHIBIT A
PLAN OF PREMISES
EXHIBIT A - Page 1
<PAGE> 36
EXHIBIT B
WORKLETTER AGREEMENT
(Allowance)
This Workletter Agreement ("Workletter") supplements a certain Office
Lease dated as of August 18, 1999 executed concurrently herewith by Metropolitan
Life Insurance Company, a New York corporation, as Landlord, and Calico
Commerce, Inc., a Delaware corporation, as Tenant, for the Premises as described
therein (the "Lease").
1. Defined Terms. Capitalized terms used in this Workletter shall have
the same meanings set forth in the Lease except as otherwise specified herein
and except for terms capitalized in the ordinary course of punctuation. For
purposes of this Workletter the following capitalized terms have the following
meanings:
1.1. "Design Documents" means the layout plans and specifications for
the real property improvements to be constructed by Landlord in Expansion Space
A and the Premises which are the final product of the preliminary space planning
and which (i) include, among other things, all partitions, doors, HVAC (heating,
ventilating and air conditioning systems) distribution, ceiling systems, light
fixtures, plumbing installations, electrical installations and outlets,
telephone installations and outlets, any other installations required by Tenant,
fire and life-safety systems, wall finishes and floor coverings, whether to be
newly installed or requiring changes from the as-is condition of Expansion Space
A and the Premises as of the date of execution of the Lease, all in sufficient
detail to commence preparation of the Construction Drawings (defined below); and
(ii) comply with all Law as applicable and as interpreted at the time of
construction of the Tenant Improvements (defined below), including all building
codes and the ADA (as defined in the Lease);
1.2 "Construction Drawings" means the final architectural plans and
specifications, and engineering plans and specifications, for the real property
improvements to be constructed by Landlord in Expansion Space A and the Premises
in sufficient detail to be submitted for governmental approvals and building
permits and to serve as the detailed construction drawings and specifications
for the contractor, and shall (i) include, among other things, all partitions,
doors, HVAC distribution, ceiling systems, light fixtures, plumbing
installations, electrical installations and outlets, telephone installations and
outlets, any other installations required by Tenant, fire and life-safety
systems, wall finishes and floor coverings, whether to be newly installed or
requiring changes from the as-is condition of the Premises as of the date of
execution of the Lease; and (ii) comply with all Law as applicable and as
interpreted at the time of construction of the Tenant Improvements (defined
below), including all building codes and the ADA (defined above);
1.3 "Tenant Improvements" means all real property improvements to be
constructed by Landlord as shown on the Construction Drawings, as they may be
modified as provided herein; and
1.4 "Landlord Work" means the construction and installation of the
Tenant Improvements and the Core Compliance Work.
1.5 "Core Compliance Work" means the following for which Landlord shall
be responsible at no cost or expense to Tenant: modifications to the fire
sprinkler systems on the floors on which the Premises and Expansion Space A are
located if and to the extent that such upgrades are required by the City of San
Jose and necessary to comply with Law, as applicable and as interpreted at the
time of execution of this Lease.
2. Design Matters.
2.1. Tenant, through architects and/or space planners chosen by Tenant,
subject to Landlord's prior written approval ("Tenant's Architect"), shall
prepare the Design Documents, in accordance with the design specified by Tenant,
subject to Landlord's written approval, which shall not unreasonably be
withheld. Tenant has requested Landlord's approval of Fenny + Mehl as Tenant's
Architect, and Landlord hereby confirms such approval.
2.2. Tenant, through Tenant's Architect, shall prepare the Construction
Drawings, as they may be modified as provided herein, in accordance with the
approved Design Documents, which Construction Drawings shall be subject to
Landlord's written approval, which shall not unreasonably be withheld. Provided
however, engineers, architects or contractors chosen by Landlord ("Landlord's
Engineers") shall prepare any necessary portions of and/or supplements to the
Construction Drawings for any work with respect to HVAC, mechanical, electrical,
plumbing, security, fire, life safety and structural systems, and structural
matters, and Tenant's Architect shall coordinate the preparation of such
portions and/or supplements.
2.3. Landlord may designate an architect and/or space planner
("Landlord's Architect") who will assist Landlord with respect to review and
approval of the Design Documents and the Construction Drawings. Tenant's
Architect shall deliver to Landlord's Architect copies of all plans,
specifications, information, materials and communications delivered to Landlord,
at the same time they are delivered to Landlord, and shall provide copies of
Design Documents and Construction Drawings to contractor(s)
EXHIBIT B - Page 1
<PAGE> 37
specified by Landlord or Landlord's Architect. Tenant's Architect shall
cooperate with, and respond to questions from, Landlord, Landlord's Architect,
Landlord's Engineers, and Landlord's general contractor(s) during the planning
and design phase, bidding phase, and construction phase with respect to the
plans and specifications and changes thereto.
2.4. Tenant shall be responsible for the suitability for the Tenant's
needs and business of the design and function of all Tenant Improvements
(defined below). Tenant, at its own expense, shall devote such time and provide
such instructions as may be necessary to complete and to enable Landlord to
complete the respective matters described below, and Tenant and Landlord
respectively shall approve such matters, within the times described below:
(a) Tenant shall cause Tenant's Architect to prepare, and Tenant
shall approve in writing and submit to Landlord for Landlord's approval the
Design Documents within five (5) business days after execution of the Lease;
(b) Landlord's written approval of the Design Documents within
five (5) business days after receipt from Tenant of Design Documents approved in
writing by Tenant;
(c) Tenant's written approval of a nonbinding preliminary
estimate ("Landlord's Preliminary Estimate") provided by Landlord of the cost of
the Tenant Improvements shown on the Design Documents within three (3) business
days after receipt of such estimate;
(d) Tenant shall cause Tenant's Architect to prepare, and Tenant
shall approve in writing and submit to Landlord for Landlord's approval the
Construction Drawings within ten (10) business days after the due date for
Tenant's approval of Landlord's Preliminary Estimate; and
(e) Landlord's written approval of the Construction Drawings
within five (5) business days after receipt from Tenant of Construction Drawings
approved in writing by Tenant.
2.5 Landlord and Tenant respectively agree that where the consent or
approval of a party is required under this Workletter, it shall not be
unreasonably withheld, conditioned or delayed. Without limiting the generality
of the reasonable grounds on which Landlord may withhold approval, it shall be
deemed reasonable for Landlord to withhold approval of any item of the design
of, construction of, or change in the Tenant Improvements under this Workletter
if: (a) the improvement involves any structural alteration, excess floor load or
any other affect on the structural integrity of the Building; (b) possible
damage to the Building systems, alteration of such systems, unusual demands on
such systems or use of more than Tenant's proportionate share of the capacity of
such systems; (c) noncompliance with Law; or (d) affect on the exterior
appearance of the Building.
2.6 Tenant, through Tenant's Architect, shall coordinate the preparation
and completion of the State of California energy utilization calculations under
Title 24 legislation by one of Landlord's Engineers.
2.7 Upon receipt of Landlord's approval of the Construction Drawings,
Tenant, through Tenant's Architect, shall process and obtain from the City of
San Jose and any other governmental authority all necessary approvals and
building permits in connection with the design and construction of the Tenant
Improvements.
2.8 Tenant, through Tenant's Architect, shall prepare and complete
as-built mylar and digitized (if available) plans and specifications for the
Tenant Improvements.
3. Construction; Landlord's Contribution; Tenant Improvement Costs.
3.1. Construction; Landlord's Contribution. Landlord, through its
contractor, shall complete the construction of the Tenant Improvements and Core
Compliance Work in a good and workmanlike manner, up to a maximum cost to
Landlord ("Landlord's Maximum Contribution") of (a) Three Hundred Sixteen
Thousand Nine Hundred Fourteen Dollars ($316,914.00) (the "Basic Contribution")
plus (b) the cost of the Core Compliance Work ("Compliance Contribution").
3.2. Tenant Improvement Costs. The cost of the Tenant Improvements
("Tenant Improvement Costs") to be paid by Landlord from, but not in excess of,
Landlord's Maximum Contribution shall include:
(a) The costs of Tenant's Architect in connection with
preparation of Design Documents, Construction Drawings, any proposed changes
thereof, as-built plans, coordination of the preparation of State of California
energy utilization calculations under Title 24 legislation and other work within
the scope of its services hereunder;
(b) All costs of obtaining from the City of San Jose and any
other governmental authority, approvals, building permits and occupancy permits,
if any;
(c) All costs of interior design and finish schedule plans and
specifications including as-built drawings;
EXHIBIT B - Page 2
<PAGE> 38
(d) All direct and indirect costs of procuring, installing and
constructing the Tenant Improvements, including: (i) the construction fee for
overhead and profit and the cost of all on-site supervisory and administrative
staff, office, equipment and temporary services rendered or provided by
Landlord's contractor in connection with construction of the Tenant
Improvements; (ii) the cost of any services or utilities made available by
Landlord; and (iii) a construction management fee payable to Landlord not to
exceed two percent (2%) of the hard costs the Tenant Improvements in excess of
One Hundred Thousand Dollars ($100,000.00);
(e) Without limiting the generality of the foregoing, the Tenant
Improvement Costs include all costs of designing, procuring, constructing and
installing Tenant Improvements in compliance with Law as applicable and as
interpreted at the time of construction of the Tenant Improvements, including
with all building codes and the ADA;
(f) All fees payable to Tenant's Architect if it is required by
Tenant, governmental authority or Landlord to redesign any portion of the Tenant
Improvements, and all costs in connection with any proposed or approved Change
Order in accordance with the provisions of this Workletter; and
(g) The costs of Landlord's Architect and any other consultants
retained by Landlord in connection with review and approval of Design Documents,
Construction Drawings and any proposed changes thereof, the costs of Landlord's
Engineers with respect to preparation and review of any plans and specifications
pursuant to Section 2.2 and any changes therein, and the engineering costs
associated with preparation and completion of the State of California energy
utilization calculations under Title 24 legislation.
Subject to Section 3.3 of this Workletter, in no event shall the Tenant
Improvement Costs include (i) any costs of procuring or installing in the
Premises any trade fixtures, equipment, furniture, furnishings, telephone
equipment, cabling for any of the foregoing, or other personal property
("Personal Property") to be used in the Premises by Tenant, and the cost of such
Personal Property shall be paid by Tenant, or (ii) any costs or expenses of any
consultants retained by Tenant with respect to design, procurement, installation
or construction of improvements or installations, whether real or personal
property, for the Premises.
3.3. Limitations of Landlord's Obligations. Upon Substantial Completion
of the Tenant Improvements in each of Expansion Space A and the Premises,
Landlord shall have no further obligation to construct improvements or construct
modifications to or changes in the Tenant Improvements, except to complete the
punchlist of Landlord Work remaining to be completed or correct any part thereof
not in compliance with the Construction Drawings and any approved modifications
thereof, as provided in the Lease. If Landlord's Maximum Contribution exceeds
the Tenant Improvement Costs, then (a) after final completion of the Tenant
Improvements, if Tenant is not then in default, if the Basic Contribution
exceeds the Tenant Improvement Costs (excluding any cost of Core Compliance
Work) then such excess shall be payable to Tenant to reimburse Tenant's actual
costs of procuring or installing in the Premises Personal Property, consultant's
fees and other relocation related costs, which payment shall be due within a
reasonable time after written notice from Tenant, which notice shall include
substantiation of Tenant's payment of such costs; and (b) thereafter Landlord
shall retain such remaining excess and shall have no obligation or liability to
Tenant with respect to such excess.
4. Contractors; Bidding &Costs of Tenant Improvements in Excess of
Landlord's Maximum Contribution.
4.1 As soon as reasonably available after completion and approval by
both parties of the Construction Drawings, Landlord shall deliver the
Construction Drawings for competitive bid to a minimum of three (3) general
contractors acceptable to Landlord (after consultation with Tenant). If desired
by Tenant or Landlord, the invitation for bids shall also specify certain
subcontractors to be used, provided such subcontractors are approved by
Landlord, and subcontractors for work relating to any of the Building systems
(including the mechanical, HVAC, electrical, fire or life safety systems shall
be subject to Landlord's approval, in its sole discretion). In connection with
any request by Tenant to use a particular contractor or subcontractor, Tenant
shall provide with such request information concerning such contractor's and
subcontractor's qualifications, necessary licenses, references and financial
condition for evaluation by Landlord, and such further information, if any, as
Landlord reasonably requests.
4.1 As soon as reasonably available after completion of bidding,
Landlord shall select a contractor and shall notify Tenant in writing of the
costs, if any, of the Tenant Improvements in excess of the Landlord's Maximum
Contribution (such notification shall be referred to as "Landlord's Cost
Statement"). Within five (5) days after receipt of Landlord's Cost Statement,
Tenant shall, in writing, give Landlord authorization to complete the Tenant
Improvements in accordance with the Construction Drawings, and to the extent
that there remain any costs of the Tenant Improvements in excess of the
Landlord's Maximum Contribution, Tenant shall accompany said authorization with
a good check made payable to the order of Landlord in the amount of the excess
cost authorized by Tenant of the Tenant Improvements over Landlord's Maximum
Contribution. In such authorization, Tenant may, pursuant to the provisions of
this Workletter, request a Change Order (defined below) to the approved
Construction Drawings to reduce or delete all or part of such excess costs, but
any delay in Substantial Completion of Expansion Space A resulting from such
request for a Change Order or from the changes so made or necessitated shall be
chargeable as Tenant
EXHIBIT B - Page 3
<PAGE> 39
EXHIBIT B - Page 3
Delay. If such written authorization and check (if applicable) are not received
by Landlord, Landlord shall not be obligated to commence work on the Premises
and any resulting delay in the completion of Expansion Space A shall be
chargeable against Tenant as Tenant Delay as provided in Section 6 of this
Workletter and in the Lease.
5. Changes. If Tenant shall desire any change, addition or alteration in
the approved Construction Drawings, Tenant shall promptly request from Tenant's
Architect a written proposal for a change order in sufficient detail for (a)
Landlord's review and approval, and (b) Landlord's contractor to prepare a
change order (the "Change Order") in accordance with such request, unless
Landlord objects to the proposed Change Order. Tenant or Tenant's Architect
shall concurrently submit such proposal to Landlord, Landlord's Architect, and
Landlord's contractor for review and approval. Tenant shall also request that
Landlord give, and Landlord shall promptly give, Tenant a written estimate of
(a) the cost of architectural, engineering and consultant's services, if any,
for Landlord to review and approve the requested Change Order, (b) the cost of
Landlord's contractor's services to prepare the Change Order, (c) the cost of
work to be performed pursuant to such Change Order, plus the cost of related
general conditions and fees, and (d) the delay in Substantial Completion of
Expansion Space A, if any, expected because of such requested Change Order.
Landlord shall also give Tenant written notice (a) of Landlord's written
approval or disapproval of the requested change in the Tenant Improvements, or
(b) that Landlord requires more detailed engineering and design plans and
specifications prepared by Tenant's Architect in order to make a determination.
Within three (3) business days following Tenant's receipt of the written
estimate provided by Landlord, Tenant shall notify Landlord in writing whether
it approves such written estimate. If Tenant approves such estimate, it shall
deliver the engineering and design plans and specifications prepared by Tenant's
Architect that are necessary for Landlord's contractor to proceed with
preparation of the Change Order. Further, if Tenant approves such written
estimate and if such cost is in excess of Landlord's Maximum Contribution,
Tenant shall accompany such approval with a good check made payable to the order
of Landlord in the amount of the estimated cost of preparing the Change Order
and performing the work thereto, and the foregoing shall constitute Landlord's
authorization to proceed. If such plans and specifications of Tenant's
Architect, Tenant's written authorization and Tenant's check, if required, are
not received by Landlord within such three (3) business day period, Landlord
shall not be obligated to prepare the Change Order or perform any work in
connection therewith. Upon completion of the work of the Change Order and
submission of the final cost thereof by Landlord to Tenant, Tenant shall
promptly pay to Landlord any such additional amounts in excess of Landlord's
Maximum Contribution. If any request by Tenant for a change, addition or
alteration in the approved Construction Drawings or processing of any Change
Order or any change in work due to a Change Order results in any delay in
Substantial Completion of Expansion Space A, such delay shall be chargeable as
Tenant Delay.
6. Tenant Delay. If the Substantial Completion of the Tenant
Improvements in Expansion Space A is delayed due to Tenant Delay (as defined in
the Lease), then Tenant shall be responsible for all costs and any expenses
occasioned by such delay, including any costs and expenses attributable to
increases in labor or materials, and the provisions of Article Two of the Lease
shall apply.
7. Entry by Tenant. Tenant may, with Landlord's written consent, which
will not unreasonably be withheld, enter Expansion Space A during the final four
weeks of construction prior to the Expansion Space A Commencement Date for
Expansion Space A solely for the purpose of installing Tenant's Personal
Property (defined in Section 3.2 above) as long as such entry will not interfere
with the timely and orderly construction and completion of Expansion Space A.
Tenant shall notify Landlord of its desired time(s) of entry and shall submit
for Landlord's approval the scope of the work to be performed and the name(s) of
the contractor(s) who will perform such work. Such work and such contractors
shall be subject to Landlord's approval in the same manner as for work subject
to Section 9.01(a) of the Lease. Such entry shall be without payment of Base
Monthly Rent or Rent Adjustments, but such entry and all acts and omissions in
connection with it are subject to and governed by all other provisions of the
Lease, including Tenant's indemnification obligations, insurance obligations,
obligations under Article Seven and the provisions of Section 9.02. Provided,
further, Tenant may, after written request by Tenant, with Landlord's written
consent, in Landlord's sole discretion, occupy such part of Expansion Space A in
which no work is required, and any such early occupancy shall not constitute or
advance the Expansion Space A Commencement Date, and shall be subject to and
governed by all other provisions of the Lease, including Tenant's
indemnification obligations, insurance obligations, obligations under Article
Seven and the provisions of Section 9.02, except that Tenant shall pay Base
Monthly Rent with respect to such space (regardless of size) equal to
twenty-five percent (25%) of the Base Monthly Rent rate applicable to a full
floor on a per diem basis starting with the first day of such occupancy and
continuing through the day before the Expansion Space A Commencement Date.
EXHIBIT B - Page 44
<PAGE> 40
8. Force and Effect. The terms and conditions of this Workletter
supplement the Lease and shall be construed to be a part of the Lease and shall
be deemed incorporated in the Lease by this reference. Without limiting the
generality of the foregoing, any default by any party hereunder shall have the
same force and effect as a default under the Lease. Should any inconsistency
arise between this Workletter and the Lease as to the specific matters which are
the subject of this Workletter, the terms and conditions of this Workletter
shall control.
IN WITNESS WHEREOF, the parties hereto have executed this Workletter as
of the date first set forth in the Lease.
<TABLE>
<CAPTION>
TENANT: LANDLORD:
<S> <C>
Calico Commerce, Inc., Metropolitan Life Insurance Company,
a Delaware corporation a New York corporation
By /s/ Alan Naumann By /s/ Edward J. Hayes
-------------------------------- ---------------------------------
Its President and CEO Its Assistant Vice President
(Chairman of Board, President or
Vice President
By /s/ Arthur F. Knapp, Jr
--------------------------------
Its VP/CFO
--------------------------------
(Secretary, Assistant Secretary,
CFO or Assistant Treasurer)
</TABLE>
EXHIBIT B - Page 5
<PAGE> 41
EXHIBIT C
RULES AND REGULATIONS
1. No sidewalks, entrance, passages, courts, elevators, vestibules, stairways,
corridors or halls shall be obstructed or encumbered by Tenant or used for any
purpose other than ingress and egress to and from the Premises and if the
Premises are situated on the ground floor of the Project, Tenant shall further,
at Tenant's own expense, keep the sidewalks and curb directly in front of the
Premises clean and free from rubbish.
2. No awning or other projection shall be attached to the outside walls or
windows of the Building without the prior written consent of Landlord. No
curtains, blinds, shades, drapes or screens shall be attached to or hung in, or
used in connection with any window or door of the Premises, without the prior
written consent of Landlord. Such awnings, projections, curtains, blinds,
shades, drapes, screens and other fixtures must be of a quality, type, design,
color, material and general appearance approved by Landlord, and shall be
attached in the manner approved by Landlord. All lighting fixtures hung in
offices or spaces along the perimeter of the Premises must be of a quality,
type, design, bulb color, size and general appearance approved by Landlord.
3. No sign, advertisement, notice, lettering, decoration or other thing shall be
exhibited, inscribed, painted or affixed by Tenant on any part of the outside or
inside of the Premises or of the Project, without the prior written consent of
Landlord. In the event of the violation of the foregoing by Tenant, Landlord may
remove same without any liability, and may charge the expense incurred by such
removal to Tenant.
4. The sashes, sash doors, skylights, windows and doors that reflect or admit
light or air into the halls, passageways or other public places in the Building
shall not be covered or obstructed by Tenant, nor shall any bottles, parcels or
other articles be placed on the window sills or in the public portions of the
Project.
5. No show cases or other articles shall be put in front of or affixed to any
part of the exterior of the Project, nor placed in public portions thereof
without the prior written consent of Landlord.
6. The water and wash closets and other plumbing fixtures shall not be used for
any purposes other than those for which they were constructed, and no sweepings,
rubbish, rags or other substances shall be thrown therein. All damages resulting
from any misuse of the fixtures shall be borne by Tenant to the extent that
Tenant or Tenant's agents, servants, employees, contractors, visitors or
licensees shall have caused the same.
7. Tenant shall not mark, paint, drill into or in any way deface any part of the
Premises or the Project. No boring, cutting or stringing of wires shall be
permitted, except with the prior written consent of Landlord, and as Landlord
may direct.
8. No animal or bird of any kind shall be brought into or kept in or about the
Premises or the Project, except seeing-eye dogs or other seeing-eye animals.
9. Prior to leaving the Premises for the day, Tenant shall draw or lower window
coverings and extinguish all lights.
10. Tenant shall not make, or permit to be made, any unseemly or disturbing
noises or disturb or interfere with occupants of the Project, or neighboring
buildings or premises, or those having business with them. Tenant shall not
throw anything out of the doors, windows or skylights or down the passageways.
11. Neither Tenant nor any of Tenant's agents, servants, employees, contractors,
visitors or licensees shall at any time bring or keep upon the Premises any
flammable, combustible or explosive fluid, chemical or substance.
12. No additional locks, bolts or mail slots of any kind shall be placed upon
any of the doors or windows by Tenant, nor shall any change be made in existing
locks or the mechanism thereof. Tenant must, upon the termination of the
tenancy, restore to Landlord all keys of stores, offices and toilet rooms,
either furnished to, or otherwise procured by Tenant, and in the event of the
loss of any keys so furnished, Tenant shall pay to Landlord the cost thereof.
13. All removals, or the carrying in or out of any safes, freight, furniture,
construction material, bulky matter or heavy equipment of any description must
take place during the hours which Landlord or its agent may determine from time
to time. Landlord reserves the right to prescribe the weight and position of all
safes, which must be placed upon two-inch thick plank strips to distribute the
weight. The moving of safes, freight, furniture, fixtures, bulky matter or heavy
equipment of any kind must be made upon previous notice to the Building Manager
and in a manner and at times prescribed by him, and the persons employed by
Tenant for such work are subject to Landlord's prior approval. Landlord reserves
the right to inspect all safes, freight or other bulky articles to be brought
into the Building and to exclude from the Building all safes, freight or other
bulky articles which violate any of these Rules and Regulations or the Lease of
which these Rules and Regulations are a part.
14. Tenant shall not purchase spring water, towels, janitorial or maintenance or
other like service from any company or persons not approved by Landlord.
Landlord shall approve a sufficient number of sources of
EXHIBIT C - Page 1
<PAGE> 42
such services to provide Tenant with a reasonable selection, but only in such
instances and to such extent as Landlord in its judgment shall consider
consistent with security and proper operation of the Project.
15. Landlord shall have the right to prohibit any advertising or business
conducted by Tenant referring to the Building or the Project which, in
Landlord's opinion, tends to impair the reputation of the Building or the
Project or its desirability as a first class building for offices and/or
commercial services and upon notice from Landlord, Tenant shall refrain from or
discontinue such advertising.
16. Landlord reserves the right to exclude from the Building and the Project
between the hours of 6:00 p.m. and 8:00 a.m. Monday through Friday, and at all
hours on Saturdays, Sundays and legal holidays, all persons who do not present a
pass to the Building or the Project, as applicable, issued by Landlord. Landlord
may furnish passes to Tenant so that Tenant may validate and issue same. Tenant
shall safeguard said passes and shall be responsible for all acts of persons in
or about the Building or the Project who possess a pass issued to Tenant.
17. Tenant's contractors shall, while in the Premises or elsewhere in the
Project, be subject to and under the control and direction of the Building
Manager (but not as agent or servant of said Building Manager or of Landlord).
18. If the Premises is or becomes infested with vermin as a result of the use or
any misuse or neglect of the Premises by Tenant, its agents, servants,
employees, contractors, visitors or licensees, Tenant shall forthwith at
Tenant's expense cause the same to be exterminated from time to time to the
satisfaction of Landlord and shall employ such licensed exterminators as shall
be approved in writing in advance by Landlord.
19. The requirements of Tenant will be attended to only upon application at the
office of the Building or the Project. Building or Project personnel shall not
perform any work or do anything outside of their regular duties unless under
special instructions from the office of the Landlord.
20. Canvassing, soliciting and peddling in the Project are prohibited and Tenant
shall cooperate to prevent the same.
21. No water cooler, air conditioning unit or system or other apparatus shall be
installed or used by Tenant without the written consent of Landlord.
22. There shall not be used in any premises, or in the public halls, plaza
areas, lobbies, or elsewhere in the Project, either by Tenant or by jobbers or
others, in the delivery or receipt of merchandise, any hand trucks or dollies,
except those equipped with rubber tires and sideguards.
23. Tenant, Tenant's agents, servants, employees, contractors, licensees, or
visitors shall not park any vehicles in any driveways, service entrances, or
areas posted "No Parking" and shall comply with any other parking restrictions
imposed by Landlord from time to time.
24. Tenant shall install and maintain, at Tenant's sole cost and expense, an
adequate visibly marked (at all times properly operational) fire extinguisher
next to any duplicating or photocopying machine or similar heat producing
equipment, which may or may not contain combustible material, in the Premises.
25. Tenant shall keep its window coverings closed during any period of the day
when the sun is shining directly on the windows of the Premises.
26. Tenant shall not use the name of the Building or the Project for any purpose
other than as the address of the business to be conducted by Tenant in the
Premises, nor shall Tenant use any picture of the Building or the Project in its
advertising, stationery or in any other manner without the prior written
permission of Landlord. Landlord expressly reserves the right at any time to
change said name without in any manner being liable to Tenant therefor.
27. Tenant shall not prepare any food nor do any cooking, operate or conduct any
restaurant, luncheonette or cafeteria for the sale or service of food or
beverages to its employees or to others, except that food and beverage
preparation by Tenant's employees using microwave ovens or coffee makers shall
be permitted provided no odors of cooking or other processes emanate from the
Premises. Tenant shall not install or permit the installation or use of any
vending machine or permit the delivery of any food or beverage to the Premises
except by such persons and in such manner as are approved in advance in writing
by Landlord.
28. The Premises shall not be used as an employment agency, a public
stenographer or typist, a labor union office, a physician's or dentist's office,
a dance or music studio, a school, a beauty salon, or barber shop, the business
of photographic, multilith or multigraph reproductions or offset printing (not
precluding using any part of the Premises for photographic, multilith or
multigraph reproductions solely in connection with Tenant's own business and/or
activities), a restaurant or bar, an establishment for the sale of
confectionery, soda, beverages, sandwiches, ice cream or baked goods, an
establishment for preparing, dispensing or consumption of food or beverages of
any kind in any manner whatsoever, or news or cigar stand, or a radio,
television or recording studio, theater or exhibition-hall, or manufacturing, or
the storage or sale of
EXHIBIT C - Page 2
<PAGE> 43
merchandise, goods, services or property of any kind at wholesale, retail or
auction, or for lodging, sleeping or for any immoral purposes.
29. Business machines and mechanical equipment shall be placed and maintained by
Tenant at Tenant's expense in settings sufficient in Landlord's judgment to
absorb and prevent vibration, noise and annoyance. Tenant shall not install any
machine or equipment which causes noise, heat, cold or vibration to be
transmitted to the structure of the building in which the Premises are located
without Landlord's prior written consent, which consent may be conditioned on
such terms as Landlord may require. Tenant shall not place a load upon any floor
of the Premises exceeding the floor load per square foot which such floor was
designed to carry and which is allowed by Law.
30. Tenant shall not bring any Hazardous Materials onto the Premises except for
those which are in general commercial use and are incidental to Tenant's
business office operations and only in quantities suitable for immediate use.
31. Tenant shall not store any vehicle within the parking facility. Tenant's
parking rights are limited to the use of parking spaces for short-term parking,
of up to twenty-four (24) hours, of vehicles utilized in the normal and regular
daily travel to and from the Project. Tenants who wish to park a vehicle for
longer than a 24-hour period shall notify the Building Manager or the Project
Manager, as applicable, and consent to such long-term parking may be granted for
periods up to two (2) weeks. Any motor vehicles parked without the prior written
consent of the Building Manager or the Project Manager for longer than a 24-hour
period shall be deemed stored in violation of this rule and regulation and shall
be towed away and stored at the owner's expense or disposed of as provided by
Law.
32. Smoking is prohibited in the Premises, the Building and all enclosed Common
Areas of the Project, including all lobbies, all hallways, all elevators, all
lavatories and the parking structure.
EXHIBIT C - Page 3
<PAGE> 44
EXHIBIT D
FORM OF LETTER OF CREDIT
FOR INTERNAL IDENTIFICATION PURPOSES ONLY
Our No. __________ Other __________
Applicant ___________________________
TO: Metropolitan Life Insurance Company
[Address]
Attention: Assistant Vice President, EIM
IRREVOCABLE LETTER OF CREDIT NO. ___________
We hereby establish this irrevocable Letter of Credit in favor of the
aforesaid addressee ("Beneficiary") for drawings up to United States $__________
effective immediately. This Letter of Credit is issued, presentable and payable
at our office at [issuing bank's address] and expires with our close of business
on ___________, 19__.
The term "Beneficiary" includes any successor by operation of law of the
named Beneficiary including, without limitation, any liquidator, rehabilitator,
receiver or conservator.
We hereby undertake to promptly honor your sight draft(s) drawn on us,
indicating our Credit No. ________, for all or any part of this Credit if
presented at our office specified in paragraph one on or before the expiry date
or any automatically extended expiry date.
Except as expressly stated herein, this undertaking is not subject to
any agreement, condition or qualification. The obligation of [issuing bank]
under this Letter of Credit is the individual obligation of [issuing bank], and
is in no way contingent upon reimbursement with respect thereto.
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 forty-five (45) days prior to an
expiration date we notify you by registered mail that we elect not to consider
this Letter of Credit renewed for any such additional period.
This Letter of Credit is subject to and governed by the Laws of the
State of New York and the 1993 revision of the Uniform Customs and Practice for
Documentary Credits of the International Chamber of Commerce (Publication 500)
and, in the event of any conflict, the Laws of the State of New York will
control. If this Credit expires during an interruption of business as described
in article 17 of said Publication 500, the bank hereby specifically agrees to
effect payment if this Credit is drawn against within 30 days after the
resumption of business.
Very truly yours,
_____________________________
[issuing bank]
EXHIBIT D - Page 1
<PAGE> 45
EXHIBIT E
FORM OF SUBORDINATION, NONDISTURBANCE & ATTORNMENT AGREEMENT
RECORDING REQUESTED
BY AND WHEN
RECORDED RETURN TO:
____________________, Esq.
____________________
____________________
____________________
SUBORDINATION,
NONDISTURBANCE
AND ATTORNMENT AGREEMENT
NOTICE: THIS SUBORDINATION, NONDISTURBANCE AND ATTORNMENT
AGREEMENT RESULTS IN YOUR LEASEHOLD ESTATE IN THE PROPERTY
BECOMING SUBJECT TO AND OF LOWER PRIORITY THAN THE LIEN OF
SOME OTHER OR LATER SECURITY INSTRUMENT.
DEFINED TERMS
- --------------------------------------------------------------------------------
EXECUTION DATE:
- --------------------------------------------------------------------------------
BENEFICIARY & ADDRESS:
Attn.:
with a copy to:
- --------------------------------------------------------------------------------
TENANT & ADDRESS:
- --------------------------------------------------------------------------------
LANDLORD & ADDRESS:
- --------------------------------------------------------------------------------
LOAN: A first mortgage loan in the original principal amount of $
from Beneficiary to Landlord.
- --------------------------------------------------------------------------------
NOTE: A Promissory Note executed by Landlord in favor of Beneficiary in the
amount of the Loan dated as of
- --------------------------------------------------------------------------------
DEED OF TRUST: A Deed of Trust, Security Agreement and Fixture Filing dated as
of executed by Landlord, to as Trustee, for the
benefit of Beneficiary securing repayment of the Note to be recorded in the
records of the County in which the Property is located.
- --------------------------------------------------------------------------------
LEASE AND LEASE DATE: The lease entered into by Landlord and Tenant dated as
of covering the Premises.
[Add amendments]
- --------------------------------------------------------------------------------
PROPERTY: [Property Name]
[Street Address 1]
[City, State, Zip]
The Property is more particularly described on Exhibit A.
- --------------------------------------------------------------------------------
EXHIBIT E - Page 1
<PAGE> 46
THIS SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT (the
"Agreement") is made by and among Tenant, Landlord, and Beneficiary and affects
the Property described in Exhibit A. Certain terms used in this Agreement are
defined in the Defined Terms. This Agreement is entered into as of the Execution
Date with reference to the following facts:
A. Landlord and Tenant have entered into the Lease covering
certain space in the improvements located in and upon the Property (the
"Premises").
B. Beneficiary has made or is making the Loan to Landlord
evidenced by the Note. The Note is secured, among other documents, by the Deed
of Trust.
C. Landlord, Tenant and Beneficiary all wish to subordinate the
Lease to the lien of the Deed of Trust.
D. Tenant has requested that Beneficiary agree not to disturb
Tenant's rights in the Premises pursuant to the Lease in the event Beneficiary
forecloses the Deed of Trust, or acquires the Property pursuant to the trustee's
power of sale contained in the Deed of Trust or receives a transfer of the
Property by a conveyance in lieu of foreclosure of the Property (collectively, a
"Foreclosure Sale") but only if Tenant is not then in default under the Lease
and Tenant attorns to Beneficiary or a third party purchaser at the Foreclosure
Sale (a "Foreclosure Purchaser").
NOW THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties agree as follows:
1. Subordination. The Lease and the leasehold estate created by
the Lease and all of Tenant's rights under the Lease are and shall remain
subordinate to the Deed of Trust and the lien of the Deed of Trust, to all
rights of Beneficiary under the Deed of Trust and to all renewals, amendments,
modifications and extensions of the Deed of Trust.
2. Acknowledgments by Tenant. Tenant agrees that: (a) Tenant has
notice that the Lease and the rent and all other sums due under the Lease have
been or are to be assigned to Beneficiary as security for the Loan. In the event
that Beneficiary notifies Tenant of a default under the Deed of Trust and
requests Tenant to pay its rent and all other sums due under the Lease to
Beneficiary, Tenant shall pay such sums directly to Beneficiary or as
Beneficiary may otherwise request. (b) Tenant shall send a copy of any notice or
statement under the Lease to Beneficiary at the same time Tenant sends such
notice or statement to Landlord. (c) This Agreement satisfies any condition or
requirement in the Lease relating to the granting of a nondisturbance agreement.
3. Foreclosure and Sale. In the event of a Foreclosure Sale,
(a) So long as Tenant complies with this Agreement and
is not in default under any of the provisions of the Lease, the Lease
shall continue in full force and effect as a direct lease between
Beneficiary and Tenant, and Beneficiary will not disturb the possession
of Tenant, subject to this Agreement. Tenant agrees to attorn to and
accept Beneficiary as landlord under the Lease and to be bound by and
perform all of the obligations imposed by the Lease. Upon Beneficiary's
acquisition of title to the Property, Beneficiary will perform all of
the obligations imposed on the Landlord by the Lease except as set forth
in this Agreement; provided, however, that Beneficiary shall not be: (i)
liable for any act or omission of a prior landlord (including Landlord);
or (ii) subject to any offsets or defenses that Tenant might have
against any prior landlord (including Landlord); or (iii) bound by any
rent or additional rent which Tenant might have paid in advance to any
prior landlord (including Landlord) for a period in excess of one month
or by any security deposit, cleaning deposit or other sum that Tenant
may have paid in advance to any prior landlord (including Landlord); or
(iv) bound by any amendment, modification, assignment or termination of
the Lease made without the written consent of Beneficiary; (v) obligated
or liable with respect to any representations, warranties or indemnities
contained in the Lease; or (vi) liable to Tenant or any other party for
any conflict between the provisions of the Lease and the provisions of
any other lease affecting the Property which is not entered into by
Beneficiary.
(b) Upon the written request of Beneficiary after a
Foreclosure Sale, the parties shall execute a lease of the Premises upon
the same provisions as contained in the Lease between Landlord and
Tenant, except as set forth in this Agreement, for the unexpired term of
the Lease.
4. Subordination and Release of Purchase Options. Tenant
represents that it has no right or option of any nature to purchase the Property
or any portion of the Property or any interest in the Borrower. To the extent
Tenant has or acquires any such right or option, these rights or options are
acknowledged to be subject and subordinate to the Mortgage and are waived and
released as to Beneficiary and any Foreclosure Purchaser.
5. Acknowledgment by Landlord. In the event of a default under
the Deed of Trust, at the election of Beneficiary, Tenant shall and is directed
to pay all rent and all other sums due under the Lease to Beneficiary.
EXHIBIT E - Page 2
<PAGE> 47
6. Construction of Improvements. Beneficiary shall not have any
obligation or incur any liability with respect to the completion of the
improvements in which the Premises are located at the commencement of the term
of the Lease.
7. Notice. All notices under this Agreement shall be deemed to
have been properly given if delivered by overnight courier service or mailed by
United States certified mail, with return receipt requested, postage prepaid to
the party receiving the notice at its address set forth in the Defined Terms (or
at such other address as shall be given in writing by such party to the other
parties) and shall be deemed complete upon receipt or refusal of delivery.
8. Miscellaneous. Beneficiary shall not be subject to any
provision of the Lease that is inconsistent with this Agreement. Nothing
contained in this Agreement shall be construed to derogate from or in any way
impair or affect the lien or the provisions of the Deed of Trust. This Agreement
shall be governed by and construed in accordance with the laws of the State of
in which the Property is located.
9. Liability and Successors and Assigns. In the event that
Beneficiary acquires title to the Premises or the Property, Beneficiary shall
have no obligation nor incur any liability beyond Beneficiary's then equity
interest in the Property, but in no event in excess of Five Million Dollars
($5,000,000), and Tenant shall look solely to such equity interest for the
payment and performance of any obligations imposed upon Beneficiary under this
Agreement or under the Lease. This Agreement shall run with the land and shall
inure to the benefit of the parties and, their respective successors and
permitted assigns including a Foreclosure Purchaser. If a Foreclosure Purchaser
acquires the Property or if Beneficiary assigns or transfers its interest in the
Note and Deed of Trust or the Property, all obligations and liabilities of
Beneficiary under this Agreement shall terminate and be the responsibility of
the Foreclosure Purchaser or other party to whom Beneficiary's interest is
assigned or transferred. The interest of Tenant under this Agreement may not be
assigned or transferred except in connection with an assignment of its interest
in the Lease which has been consented to by Beneficiary.
IN WITNESS WHEREOF, the parties have executed this
Subordination, Nondisturbance and Attornment Agreement as of the Execution Date.
NOTICE: THIS SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT
CONTAINS PROVISIONS WHICH ALLOW THE PERSON OBLIGATED ON THE LEASE
TO OBTAIN A LOAN, A PORTION OF WHICH MAY BE EXPENDED FOR OTHER
PURPOSES THAN IMPROVEMENT OF THE PROPERTY.
IT IS RECOMMENDED THAT THE PARTIES CONSULT WITH THEIR ATTORNEYS PRIOR TO THE
EXECUTION OF THIS SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT.
BENEFICIARY: __________________________________,
a _________________________________
By ________________________________
Its _______________________________
TENANT: __________________________________,
a _________________________________
By ________________________________
Its _______________________________
LANDLORD: __________________________________,
a _________________________________
By ________________________________
Its _______________________________
EXHIBIT E - Page 3
<PAGE> 48
EXHIBIT A OF SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT
PROPERTY DESCRIPTION
EXHIBIT E - Page 4
<PAGE> 49
State of _____________
County of ____________
On ______________, 199_ before me, ____________________, personally appeared
___________________, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he/she executed the same in his/her
authorized capacity, and that by his/her signature on the instrument the person,
or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Signature ________________________________ (Seal)
***************************************************
State of _____________
County of ____________
On ______________, 199_ before me, ____________________, personally appeared
___________________, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he/she executed the same in his/her
authorized capacity, and that by his/her signature on the instrument the person,
or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Signature ________________________________ (Seal)
***************************************************
State of _____________
County of ____________
On ______________, 199_ before me, ____________________, personally appeared
___________________, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he/she executed the same in his/her
authorized capacity, and that by his/her signature on the instrument the person,
or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Signature ________________________________ (Seal)
EXHIBIT E - Page 5
<PAGE> 50
EXHIBIT F
EXPANSION SPACE A
EXHIBIT F - Page 1
<PAGE> 51
EXHIBIT G
ROOF ANTENNA; ROOF SPACE; CABLE PATH
"Antenna" or "Antennas" means only one (1), or two (2) if Tenant exercises its
option for a second, receive-only micro dish style satellite antenna(s) and
mounting structure, and the design, size and features of each are subject to
approval in writing by Landlord prior to installation of the respective Antenna.
"Roof Space" means the space and dimensions thereof to be designated and
approved in writing by Landlord prior to installation.
The "Cable Path" route shall be located in the particular location and manner
approved in writing by Landlord prior to installation.
EXHIBIT G - Page 1
<PAGE> 52
RIDER 1
COMMENCEMENT DATE AGREEMENT
Metropolitan Life Insurance Company, a New York corporation ("Landlord"), and
Calico Commerce, Inc., a Delaware corporation ("Tenant"), have entered into a
certain Office Lease dated as of August 18, 1999 (the "Lease").
WHEREAS, Landlord and Tenant wish to confirm and memorialize the Commencement
Date and Expiration Date of the Lease as provided for in Section 2.02(b) of the
Lease;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
contained herein and in the Lease, Landlord and Tenant agree as follows:
1. Unless otherwise defined herein, all capitalized terms shall have the
same meaning ascribed to them in the Lease.
2. The Expansion Space A Commencement Date (as defined in the Lease) of
the Lease is .
3. The Expiration Date (as defined in the Lease) will be _____________..
4. Tenant hereby confirms the following:
(a) that it has accepted possession of Expansion Space A
pursuant to the terms of the Lease;
(b) that the Landlord Work in Expansion Space A is
Substantially Complete; and
(c) that the Lease is in full force and effect.
5. Except as expressly modified hereby, all terms and provisions of the
Lease are hereby ratified and confirmed and shall remain in full force and
effect and binding on the parties hereto.
6. The Lease and this Commencement Date Agreement contain all of the
terms, covenants, conditions and agreements between the Landlord and the Tenant
relating to the subject matter herein. No prior other agreements or
understandings pertaining to such matters are valid or of any force and effect.
TENANT: LANDLORD:
Calico Commerce, Inc., Metropolitan Life Insurance Company,
a Delaware corporation a New York corporation
By ________________________________ By ________________________________
________________________________ ________________________________
Print name Print name
Its ________________________________ Its ________________________________
(Chairman of Board, President or Vice President)
By ________________________________
________________________________
Print name
Its ________________________________
(Secretary, Assistant Secretary, CFO or Assistant Treasurer)
RIDER 1 - Page 1
<PAGE> 53
RIDER 2
ADDITIONAL PROVISIONS
This Rider 2 ("Rider") is attached to and a part of a certain Office
Lease dated as of August 18, 1999 executed concurrently herewith by Metropolitan
Life Insurance Company, a New York corporation, as Landlord, and Calico
Commerce, Inc., a Delaware corporation (for purposes of this Rider, "Calico"),
as Tenant, for the Premises as described therein (the "Lease").
SECTION 1. DEFINED TERMS; FORCE AND EFFECT
Capitalized terms used in this Rider shall have the same meanings set forth in
the Lease except as otherwise specified herein and except for terms capitalized
in the ordinary course of punctuation. This Rider forms a part of the Lease.
Without limiting the generality of the foregoing, any default by any party
hereunder shall have the same force and effect as a default under the Lease.
Should any inconsistency arise between this Rider and any other provision of the
Lease as to the specific matters which are the subject of this Rider, the terms
and conditions of this Rider shall control.
SECTION 2. DELIVERY; COMMENCEMENT DATE; PREMISES LEASED AS-IS; AND CONSTRUCTION
2.1. Delivery; Commencement Date; AS-IS. Notwithstanding any provision
of the Lease to the contrary:
(a) Prior Sublease. Tenant and Landlord acknowledge that Tenant
presently occupies the Premises pursuant to a sublease dated July 31, 1998
between Adobe Systems Incorporated ("Adobe") and Tenant (the "Prior Sublease").
Tenant and Landlord further acknowledge that the Initial Premises is the entire
space which Tenant subleases under the Prior Sublease and is part of a larger
space which Adobe leases from Landlord (the "Adobe Lease"), and that as of the
date of execution hereof, the expiration date of the term of the Prior Sublease
is August 31, 1999 and of the Adobe Lease is August 31, 1999.
(b) Delivery; Commencement Date & Delay in Delivery. Tenant and Landlord
agree that Landlord shall be deemed to have delivered possession of the Premises
on September 1, 1999 and such date shall be the Commencement Date of the Term of
this Lease. Provided however, if Adobe does not relinquish to Landlord
possession of the Premises (whether or not Adobe holds over or retains
possession of any other part of the larger space under the Adobe Lease) on
August 31, 1999 by reason of the holding over by Adobe beyond the expiration
date of the Adobe Lease, then Landlord shall not be subject to any liability. In
such event, Tenant shall pay Landlord the amount by which the Rent hereunder
allocable to the Premises exceeds any rent paid by Tenant to Adobe under the
Prior Sublease or, upon written notice from Landlord to Tenant, the full amount
of Rent hereunder, and any holdover by Adobe shall not extend the Expiration
Date of this Lease and shall not affect the validity of this Lease or the
obligations of the Tenant hereunder.
(c) AS-IS Condition of Premises. Except to the extent of any Landlord
Work and Landlord's Maximum Contribution described in the Workletter: (i)
Landlord shall deliver the Premises and Building systems serving the Premises to
Tenant in their AS IS condition, without any express or implied representations
or warranties of any kind by Landlord, its brokers, manager or agents, or the
employees of any of them regarding the Premises; and (ii) Landlord shall not
have any obligation to construct or install any tenant improvements or
alterations or to pay for any such construction or installation. Tenant shall
notify Landlord in writing within thirty (30) days after Substantial Completion
of the Landlord Work in the Premises of any defects in the materials or
workmanship furnished by Landlord in completing the Landlord Work in the
Premises. Except for defects stated in such notice, Tenant shall be conclusively
deemed to have accepted the Landlord Work AS IS in the condition existing on the
date Tenant first takes possession, and to have waived all claims relating to
the condition of the Landlord Work. Landlord shall proceed diligently to correct
the defects stated in such notice unless Landlord disputes the existence of any
such defects. In the event of any dispute as to the existence of any such
defects, the decision of Landlord's architect shall be final and binding on the
parties. Nothing herein shall be construed as limiting Landlord's general
maintenance and repair obligations under this Lease.
(d) Right of Entry; Tenant's Responsibilities. Landlord shall perform
the Landlord Work pursuant to the Workletter after the Commencement Date,
provided however, at Landlord's option, but without any obligation to do so,
Landlord may commence any Landlord Work to be done in the Premises, including
any Core Compliance Work, before the Commencement Date. To the extent that
design and construction of any or all of the Landlord Work (for the Premises or
Expansion Space A) will require access, work or construction within or through
the Premises, Landlord and Landlord's representatives and contractors shall have
the right to enter the Premises to perform such work, and Tenant agrees that
such entry and work shall not constitute an eviction of Tenant in whole or in
part and that rent and other sums due and payable by Tenant under the Lease with
respect to the Premises shall in no way be abated or reduced by reason of
inconvenience, annoyance, disturbance or injury to the business of Tenant due to
such access, work or construction. Tenant shall cooperate with Landlord and
Landlord's contractors(s) to allow such access and any necessary coordination of
construction, and Landlord shall use reasonable efforts, at Tenant's
RIDER 2 - Page 2
<PAGE> 54
expense, to minimize any interference with Tenant's use of the Premises in
connection with the Landlord Work.
SECTION 3. LEASE OF EXPANSION SPACE A
(a) Lease; Definition. Landlord hereby leases to Tenant and Tenant
hereby hires from Landlord Expansion Space A (defined below) upon and subject to
all of the terms, covenants and conditions of the Lease except as expressly
provided herein. "Expansion Space A" is the fifth floor of the Building as shown
on Exhibit F to this Amendment. Landlord and Tenant hereby agree that Expansion
Space A is conclusively presumed to be 19,548 square feet of Rentable Area.
(b) Construction; Commencement Date; Term; Rent; Other Provisions.
Notwithstanding any provision of the Lease to the contrary, the following
provisions shall govern Expansion Space A:
(1) AS-IS Condition. Except to the extent of any Landlord Work
and Landlord's Maximum Contribution described in the Workletter: (i) Landlord
shall deliver Expansion Space A and the Building systems serving it to Tenant in
their AS IS condition, without any express or implied representations or
warranties of any kind by Landlord, its brokers, manager or agents, or the
employees of any of them regarding Expansion Space A; and (ii) Landlord shall
not have any obligation to construct or install any tenant improvements or
alterations or to pay for any such construction or installation. Tenant shall
notify Landlord in writing within thirty (30) days after the later of
Substantial Completion of the Landlord Work in Expansion Space A or when Tenant
takes possession of Expansion Space A of any defects in the materials or
workmanship furnished by Landlord in completing the Landlord Work in Expansion
Space A. Except for defects stated in such notice, Tenant shall be conclusively
deemed to have accepted the Landlord Work AS IS in the condition existing on the
date Tenant first takes possession, and to have waived all claims relating to
the condition of the Landlord Work. Landlord shall proceed diligently to correct
the defects stated in such notice unless Landlord disputes the existence of any
such defects. In the event of any dispute as to the existence of any such
defects, the decision of Landlord's architect shall be final and binding on the
parties. Nothing herein shall be construed as limiting Landlord's general
maintenance and repair obligations under this Lease.
(2) Substantial Completion as to Expansion Space A. As to
Expansion Space A "Substantial Completion" shall mean, and Landlord's Work in
Expansion Space A shall be deemed "Substantially Complete", when Landlord's Work
is complete except for minor insubstantial details of construction, decoration
or mechanical adjustments which remain to be done.
(3) Commencement Date; Term. The Expansion Space A Commencement
Date ("ESACD") shall mean, and Landlord shall deliver possession of Expansion
Space A to Tenant for occupancy upon, the date of Substantial Completion of
Landlord's Work and, upon such delivery, Expansion Space A becomes a part of the
Premises, and Tenant's obligation commences to pay Rent with respect to
Expansion Space A, but the ESACD shall be advanced from such date to earlier
commencement by one day for each day of Tenant Delay (defined below). The Term
of this Lease of Expansion Space A shall continue until the Expiration Date of
the Term of the Lease as provided above. The parties estimate that Substantial
Completion will occur (the "Projected Expansion Space A Commencement Date")
November 1, 1999.
(4) Delayed or Early Delivery of Possession. If Landlord shall
be unable to give possession of Expansion Space A on the Projected Expansion
Space A Commencement Date by reason of the following: (i) the Landlord Work is
not Substantially Complete, (ii) the holding over or retention of possession of
any tenant, tenants or occupants, or (iii) for any other reason, then Landlord
shall not be subject to any liability for the failure to give possession on said
date. Under such circumstances the ESACD and rent with respect to Expansion
Space A shall not commence until Expansion Space A is made available to Tenant
by Landlord, and no such failure to give possession on the Projected Expansion
Space A Commencement Date shall affect the validity of this Lease or the
obligations of the Tenant hereunder. Expansion Space A shall be deemed to be
ready for Tenant's occupancy in the event Landlord's Work is Substantially
Complete, or if the delay in the availability of the Premises for occupancy
shall be due to any Tenant Delay and/or default on the part of Tenant. In the
event of any dispute as to whether the Landlord Work is Substantially Complete,
the decision of Landlord's architect shall be final and binding on the parties.
If Landlord delivers possession of Expansion Space A later or earlier than the
Projected Expansion Space A Commencement Date, within thirty (30) days following
the occurrence of the Expansion Space A Commencement Date, Landlord and Tenant
shall enter into an agreement (which is attached as Rider 1 of the Lease)
confirming such date. If Tenant fails to enter into such agreement, then the
Expansion Space A Commencement Date shall be the date designated by Landlord in
such agreement.
(c) Monthly Rent & Tenant's Share & Parking Commencing Upon Expansion
Space A Commencement Date. The amount of Monthly Base Rent due and payable by
Tenant accruing on and after the ESACD and monthly thereafter for Expansion
Space A and the Premises combined is set forth in Section 1.01(8). The Tenant's
Share percentage specified in Section 1.01(13) is the combined Tenant's Share
for the Premises on the third and fourth floors and Expansion Space A. The
Parking Spaces specified in Section 1.01(17) are the combined Parking Spaces for
the Premises on the third and fourth floors and Expansion Space A, subject to
reduction pursuant to Section 2.06.
RIDER 2 - Page 2
<PAGE> 55
SECTION 4. RIGHT OF FIRST OFFER TO CERTAIN SPACE IN THE BUILDING
(a) Landlord hereby grants Tenant a one-time right of first offer to
lease each allotment of the "Offer Space" (as defined below), upon and subject
to the terms and conditions of this Section (the "Offer Right"), and provided
that at the time of exercise of such right: (i) Tenant must be in occupancy of
the entire Premises then leased by Tenant; and (ii) there has been no material
adverse change in Tenant's financial position from such position as of the date
of execution of the Lease, as certified by Tenant's independent certified public
accountants and as supported by Tenant's certified financial statements, or if
Tenant is a company whose stock is publicly traded, then as supported by
Tenant's then current, publicly available certified financial statements, copies
of which shall be delivered to Landlord promptly upon request following Tenant's
exercise of its right hereunder.
(b) The Offer Space shall mean space in the Building if and as it
becomes Available (as described in this Subsection) up to a total of 8,000
rentable square feet in the year 2000, up to a total of 8,000 rentable square
feet in the year 2001, and up to a total of the rentable square footage of a
full floor in the year 2002. Each respective calendar year specified above
applicable to each allotment of Offer Space may be referred to herein as an
"Availability Period" and collectively such periods may be referred to as
"Availability Periods". Prior to or during the respective Availability Periods
Landlord is free to extend any lease, and the space under such lease is not
Available, is not subject to Tenant's rights hereunder, and Landlord is not
required to give Tenant any notice with respect to such space. Prior to the
respective Availability Periods, Landlord is free to lease any space which is or
becomes vacant, and such space is not Available, is not subject to Tenant's
rights hereunder, and Landlord is not required to give Tenant any notice with
respect to such space. Further, if such space remains vacant and not leased when
an Availability Period begins and Landlord is then negotiating with another
party for the lease of such space, then such space shall not be Available for
purposes of this Section, not subject to Tenant's rights hereunder, and Landlord
is not required to give Tenant any notice with respect to such space. Tenant's
rights hereunder are subject and subordinate to all rights or options to expand
(whether mandatory takes, options, right of first offer, right of negotiation,
right of first refusal or other style right of expansion) existing as of the
Commencement Date of this Lease (collectively, the "Superior Rights") and space
is Available only if it is free of such Superior Rights. Within thirty (30) days
after written request therefor, but one time only, Landlord shall provide Tenant
with a written list of all such Superior Rights and the amount and location of
space subject to such Superior Rights, as remain in existence at that time.
(c) If Offer Space becomes Available during its corresponding
Availability Period, or at Landlord's sole option, if during such Availability
Period Landlord reasonably expects Offer Space will become Available within such
Availability Period, then before Landlord makes any written proposal to any
other party for Offer Space, or contemporaneously with making any such proposal,
Landlord shall give Tenant written notice ("Landlord's Notice"), which notice
identifies the space Available. For a period of five (5) business days after
Landlord gives Landlord's Notice (the "Election Notice Period"), Tenant shall
have the right to initiate negotiations in good faith for the lease of all (and
not less than all) the space identified in Landlord's Notice by giving Landlord
written notice ("Election Notice") of Tenant's election to exercise its Offer
Right to lease such space. This right only applies to lease all, and not less
than all, the space covered by a Landlord's Notice, whether such notice covers
increments of more or less than the maximum space allocable to that year, but if
such notice covers more than the maximum space allocable to that year, Tenant
will not be required to accept more than a full floor. For example, if a full
floor becomes available in 2002, Tenant's Offer Right will be only for the full
floor, and it will have no right to offer for or take less than the full floor,
but if the Offer Space designated in Landlord's notice is more than one full
floor, Tenant may exercise the Offer Right as to only a full floor. If, for any
reason, an expansion is not consummated for the above allotments (whether or not
any was Available during the Availability Period) or for any partial increment
covered by a notice of availability from Landlord, Tenant's rights will expire
for the total allotment for that year, but will remain for any allotment
specified for any year thereafter.
(d) If Tenant timely gives the Election Notice, Landlord and Tenant
shall, during the five (5) business day period following Landlord's receipt of
the Election Notice, negotiate in good faith for the lease of the Offer Space.
This obligation to negotiate is non-exclusive and nothing herein shall be deemed
to prevent Landlord from negotiating with any other party for the Offer Space,
whether or not Landlord and Tenant are negotiating for the same, but subject to
this obligation to negotiate with Tenant in good faith. Any lease by Tenant of
Offer Space pursuant to this Offer Right must be a minimum five (5) year term
and in addition, the term of all other space then leased by Tenant, either
through the initial lease or through subsequent expansions, must be extended to
become coterminous with the expiration date for the lease of the new Offer Space
at an extension rent rate then negotiated. Unless and until the parties agree
upon the extension rent, rent for the new Offer Space and all other terms and
conditions for the lease of the new Offer Space, Tenant shall not be entitled to
take any of the applicable Offer Space.
(e) If Tenant either fails or elects not to exercise its Offer Right as
to the Offer Space covered by Landlord's Notice by not giving its Election
Notice within the Election Notice Period, or if Tenant gives Tenant's Election
Notice but Tenant and Landlord do not execute (i) a written letter of intent
reflecting the significant business terms for the lease of the Offer Space
within ten (10) business days after delivery of the Election Notice, and (ii) a
corresponding form prepared by Landlord of amendment to this Lease within five
(5) business days after Landlord gives Tenant such form, then in any such event
Tenant's Offer Right
shall be null and void as to the particular space identified in the applicable
Landlord's Notice
and the
RIDER 2 - Page 2
<PAGE> 56
remaining allotment of Offer Space for that Availability Period not previously
leased to Tenant, but the Offer Right shall not thereby be nullified or voided
as to any allotment(s) of Offer Space for subsequent Availability Periods, if
any.
(f) This Offer Right is personal to Calico and may not be used by, and
shall not be transferable or assignable (voluntarily or involuntarily) to any
person or entity, provided however, so long as the Occupancy Requirement
(defined below) is satisfied (but otherwise regardless of occupancy by a
subtenant under a sublease permitted pursuant to Article Ten), this right may be
exercised by Calico or by an Affiliate which is an assignee of the Lease and
which has complied with Section 10.01(e) of the Lease, and such Affiliate may
exercise the right without Tenant joining in or consenting to such exercise, and
notwithstanding any provision of the Lease to the contrary (including Section
10.04),Tenant shall remain liable for all obligations under the Lease, including
those resulting from any such exercise with the same force and effect as if
Tenant had joined in such exercise. For purposes of this Lease, Occupancy
Requirement shall mean Calico, or an Affiliate which is an assignee of the Lease
and which has complied with Section 10.01(e) of the Lease, is conducting
business at and occupying at least sixty percent (60%) of the Premises
("Occupancy Requirement").
(g) Upon the occurrence of any of the following events at any time prior
to the time the Offer Space is to be added to the Premises, Landlord shall have
the option, exercisable at any time prior to the time the Offer Space is to be
added to the Premises, to terminate all of the provisions of this Section with
respect to the Offer Right, with the effect of canceling and voiding any prior
or subsequent exercise so this Offer Right is of no force or effect:
(i) Tenant's failure to timely exercise the Offer Right in
accordance with the provisions of this Section.
(ii) The existence at the time Tenant exercises the Offer Right
or at the time the Offer Space is to be added to the Premises of any
default on the part of Tenant under the Lease beyond any applicable
notice and grace period, provided, for purposes of this Section only,
that with respect to a monetary default, Landlord has given Tenant
notice of such default.
(iii) Tenant's third default under the Lease (beyond any
applicable notice and grace period, provided, for purposes of this
Section only, that with respect to a monetary default, Landlord has
given Tenant notice of such default) prior to the date the Offer Space
is to be added to the Premises, notwithstanding that all such defaults
may subsequently be cured.
(h) Without limiting the generality of any provision of the Lease, time
shall be of the essence with respect to all of the provisions of this Section.
(i) In the event Tenant exercises Tenant's Termination Option (defined
below), from and after the date of such exercise, this Offer Right shall
terminate and be of no further force or effect, including any rights or
obligations with respect to any Offer Space which is the subject of any
then-pending Landlord's Notice, Election Notice or discussions and which has yet
been leased to Tenant, and at any time thereafter Landlord shall be free to
lease and/or otherwise grant options or rights to such space on any terms and
conditions whatsoever free and clear of the Offer Right.
SECTION 5. RIGHT OF FIRST OFFER TO CERTAIN SPACE IN THE SECOND TOWER
(a) Landlord hereby grants Tenant a one-time right of first offer for
two floors (which location will be determined by Landlord) (the "Second Tower
Offer Space") of the Second Tower, if it is built by Landlord, upon and subject
to the terms and conditions of this Section (the "Second Tower Offer Right") ,
and provided that at the time of exercise of such right: (i) Tenant must be in
occupancy of the entire Premises then leased by Tenant; and (ii) there has been
no material adverse change in Tenant's financial position from such position as
of the date of execution of the Lease, as certified by Tenant's independent
certified public accountants, and as supported by Tenant's certified financial
statements, or if Tenant is a company whose stock is publicly traded, then as
supported by Tenant's then current, publicly available certified financial
statements, copies of which shall be delivered to Landlord promptly upon request
following Tenant's exercise of its right hereunder. Said Second Tower Offer
Right shall be null and void in any of the following events: (a) Metropolitan
Life Insurance Company ("MetLife") sells or transfers to a buyer or other
transferee who is not a MetLife Affiliate (defined below) any one or more of the
following: the Building, the parcel for the Second Tower, or the development
rights and/or ownership of the Second Tower; (b) MetLife ground leases or master
leases the parcel for the Second Tower and/or the Second Tower; (c) MetLife
otherwise leases to a single tenant the entire Second Tower or the entire Second
Tower except for space on or below its ground floor or on its roof. The Second
Tower may or may not be built, and MetLife or any successor as Landlord shall
have no obligation to build it and shall have no liability whether or not it is
built. For purposes hereof, MetLife Affiliate shall mean any corporation or
other business entity which is owned or controlled by, owns or controls, or is
under common ownership or control with MetLife.
(b) Before Landlord makes any written proposal to any other party for
space (except a proposal described in items (b) or (c) of the next to the last
sentence of Subsection (a) above, or
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contemporaneously with making any such proposal, Landlord shall give Tenant
written notice ("Landlord's Notice"), which notice identifies the Second Tower
Offer Space Landlord proposes to lease to Tenant. For a period of ten (10)
business days after Landlord gives Landlord's Notice (the "Election Notice
Period"), Tenant shall have the right to initiate negotiations in good faith for
the lease of all (and not less than all) the Second Tower Office Space
identified in Landlord's Notice by giving Landlord written notice ("Election
Notice") of Tenant's election to exercise its Second Tower Offer Right to lease
such space.
(c) If Tenant timely gives the Election Notice, Landlord and Tenant
shall, during the fifteen (15) business day period following Landlord's receipt
of the Election Notice, negotiate in good faith for the lease of the Second
Tower Offer Space. This obligation to negotiate is non-exclusive and nothing
herein shall be deemed to prevent Landlord from negotiating with any other party
for the Second Tower Offer Space, whether or not Landlord and Tenant are
negotiating for the same, but subject to this obligation to negotiate with
Tenant in good faith.
(d) If Tenant either fails or elects not to exercise its Second Tower
Offer Right as to the Second Tower Offer Space covered by Landlord's Notice by
not giving its Election Notice within the Election Notice Period, or if Tenant
gives Tenant's Election Notice but Tenant and Landlord do not execute (i) a
written letter of intent reflecting the significant business terms for the lease
of the Second Tower Offer Space within fifteen (15) business days after delivery
of the Election Notice, and (ii) a corresponding form prepared by Landlord of
lease or amendment to this Lease within thirty (30) business days after Landlord
gives Tenant such form, then in any such event Tenant's Second Tower Offer Right
shall be null and void, and at any time thereafter Landlord shall be free to
lease and/or otherwise grant options or rights to such space on any terms and
conditions whatsoever free and clear of the Second Tower Offer Right.
(e) This Second Tower Offer Right is personal to Calico and may not be
used by, and shall not be transferable or assignable (voluntarily or
involuntarily) to any person or entity, provided however, so long as the
Occupancy Requirement is satisfied (but otherwise regardless of occupancy by a
subtenant under a sublease permitted pursuant to Article Ten), this right may be
exercised by Calico or by an Affiliate which is an assignee of the Lease and
which has complied with Section 10.01(e) of the Lease, and such Affiliate may
exercise the right without Tenant joining in or consenting to such exercise, and
notwithstanding any provision of the Lease to the contrary (including Section
10.04),Tenant shall remain liable for all obligations under the Lease, including
those resulting from any such exercise with the same force and effect as if
Tenant had joined in such exercise.
(f) Upon the occurrence of any of the following events at any time prior
to the time the Second Tower Offer Space is to be added to the Premises,
Landlord shall have the option, exercisable at any time prior to the time the
Second Tower Offer Space is to be added to the Premises, to terminate all of the
provisions of this Section with respect to the Second Tower Offer Right, with
the effect of canceling and voiding any prior or subsequent exercise so this
Second Tower Offer Right is of no force or effect:
(i) Tenant's failure to timely exercise the Second Tower Offer
Right in accordance with the provisions of this Section.
(ii) The existence at the time Tenant exercises the Second Tower
Offer Right or at the time the Second Tower Offer Space is to be added
to the Premises of any default on the part of Tenant under the Lease
beyond any applicable notice and grace period, provided, for purposes of
this Section only, that with respect to a monetary default, Landlord has
given Tenant notice of such default.
(iii) Tenant's third default under the Lease (beyond any
applicable notice and grace period, provided, for purposes of this
Section only, that with respect to a monetary default, Landlord has
given Tenant notice of such default) prior to the date the Second Tower
Offer Space is to be added to the Premises, notwithstanding that all
such defaults may subsequently be cured.
(g) Without limiting the generality of any provision of the Lease, time
shall be of the essence with respect to all of the provisions of this Section.
(h) In the event Tenant exercises Tenant's Termination Option (defined
below), from and after the date of such exercise, this Second Tower Offer Right
shall terminate and be of no further force or effect, including any rights or
obligations with respect to any Second Tower Offer Space which is the subject of
any then-pending Landlord's Notice, Election Notice or discussions and which has
yet been leased to Tenant, and at any time thereafter Landlord shall be free to
lease and/or otherwise grant options or rights to such space on any terms and
conditions whatsoever free and clear of the Second Tower Offer Right.
SECTION 6. TERMINATION OPTION
Landlord hereby grants Tenant a single option (the "Termination Option") to
accelerate the Expiration Date of the Term of the Lease, upon and subject to the
terms and conditions set forth below:
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(a) Exercise. The Termination Option is exercisable only by written
notice (the "Termination Notice") given by Tenant to Landlord no later than the
last day of the twenty-seventh (27th) month after the Commencement Date.
Exercise of this Termination Option shall accelerate the Expiration Date to that
date (the "Early Termination Date") which is the last day of the thirty-sixth
(36th) month after the Expansion Space A Commencement Date.
(b) Termination Fee. No later than thirty (30) days before the Early
Termination Date, Tenant shall pay Landlord the sum of the following: (i) the
amount equal to One Million Five Hundred and Eighty-four Thousand Five Hundred
and Seventy Dollars and No Cents ($1,584,570.00) payable with respect to the
Premises and Expansion Space A; plus (ii) the amount with respect to any
subsequent expansion space added to the Premises hereunder or leased pursuant to
Tenant's Offer Right or Second Tower Offer Right or otherwise and then leased by
Tenant as of the Early Termination Date, which amount will be as subsequently
negotiated and agreed upon by Landlord and Tenant as part of the negotiation of
the terms for the lease of any such additional space (the "Termination Fee").
(c) Conditions. Notwithstanding anything to the contrary contained
herein, all rights of Tenant pursuant to the Termination Option shall terminate
at Landlord's option upon written notice from Landlord to Tenant, and shall be
of no further force and effect, whereupon no prior exercise of the Termination
Option shall be of any force or effect, and the Lease shall continue in full
force and effect in the event that Tenant fails to timely deliver the
Termination Fee to Landlord.
(d) After Exercise. Upon and after Tenant's exercise of the Termination
Option, all of the terms and conditions of the Lease shall continue to apply
except the Expiration Date of the Lease shall be the Early Termination Date and
the term of the Lease shall be adjusted accordingly. Without limiting the
generality of the foregoing, in addition to payment of the Termination Fee,
Tenant shall timely pay Landlord all other amounts as and when they become due
and payable under the Lease accruing through the Early Termination Date.
(e) Option Personal. The Termination Option is personal to Calico and
may not be exercised by, and shall not be transferable or assignable
(voluntarily or involuntarily) to any other person or entity, provided however,
regardless of any occupancy by a subtenant under a sublease permitted pursuant
to Article Ten, this right may be exercised by Calico or by an Affiliate which
is an assignee of the Lease and which has complied with Section 10.01(e) of the
Lease, and such Affiliate may exercise the right without Tenant joining in or
consenting to such exercise, and notwithstanding any provision of the Lease to
the contrary (including Section 10.04),Tenant shall remain liable for all
obligations under the Lease, including those resulting from any such exercise
with the same force and effect as if Tenant had joined in such exercise.
(f) Time. Without limiting the generality of any provision of the Lease,
time shall be of the essence with respect to all of the provisions of this
Section.
SECTION 7. MONUMENT SIGNAGE
(a) Grant of Right; Additional Rent. So long as the Occupancy
Requirement is satisfied, Tenant shall have the non-exclusive right to place a
single monument and tenant identification sign thereon located outside the
Building subject to the terms and conditions set forth in this Section
("Monument Sign Right"). Nothing contained herein shall prohibit or limit
Landlord in granting other tenants of the Project or Building rights to install
monuments or other signs on or at the Project or Building or space leased to
such tenants. In the event that Tenant ceases to operate its business at and
occupy at least sixty percent (60%) of the Premises (other than as a result of
events beyond Tenant's control, such as casualty or condemnation), Landlord
shall have the right to suspend this sign right, upon thirty (30) days prior
written notice to Tenant, until such time as Tenant resumes operation of its
business at and occupancy of at least sixty percent (60%) or more of the
Premises.
(b) General Conditions & Requirements. The size, type, style, materials,
color, method of installation and exact location of the sign, and the contractor
for and all work in connection with the sign, contemplated by this Section shall
(i) be subject to Tenant's compliance with all Laws and obtaining all necessary
governmental approvals; (ii) be consistent with the design of the Building and
the Project; (iii) be further subject to Landlord's prior written approval, in
its sole but reasonable discretion, of the location, size, design and all
matters with respect to the monument and tenant's identification sign thereon;
provided, however, that the size of Tenant's sign shall be similar to the
Paolo's monument sign in existence at the Project as of the date of execution of
this Lease. Tenant shall, at its sole cost and expense, comply with the
foregoing requirements and procure, install, maintain such monument and Tenant's
identification sign thereon.
(c) Removal & Restoration. Upon the expiration, termination or
suspension of the Monument Sign Right, but in no event later than the expiration
of the Term or earlier termination of the Lease, Tenant shall, at its sole cost
and expense: (i) remove Tenant's identification sign on the monument, and (ii)
at Landlord's request, remove the monument and repair and restore the area in
which it was located to the condition prior to such installation.
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(d) Advance Notice; No Liens. Tenant shall keep the Building and Project
free of all liens and the provisions of Article Nine shall apply with respect to
all work and materials performed and provided in connection with such sign, and
Tenant shall give Landlord at least ten (10) days prior written notice of the
intended commencement of work in connection with such sign in order to allow
Landlord time to post appropriate notices of non-responsibility.
(e) Right Personal. The Monument Sign Right under this Section is
personal to Calico and may not be used by, and shall not be transferable or
assignable (voluntarily or involuntarily) to any person or entity, provided
however, so long as the Occupancy Requirement is satisfied (but otherwise
regardless of occupancy by a subtenant under a sublease permitted pursuant to
Article Ten), this right may be exercised by Calico or by an Affiliate which is
an assignee of the Lease and which has complied with Section 10.01(e) of the
Lease, and such Affiliate may exercise the right without Tenant joining in or
consenting to such exercise, and notwithstanding any provision of the Lease to
the contrary (including Section 10.04),Tenant shall remain liable for all
obligations under the Lease, including those resulting from any such exercise
with the same force and effect as if Tenant had joined in such exercise.
SECTION 8. ROOF ANTENNA
8.1 Grant of License. Landlord hereby grants Tenant two options, either
or both of which shall be exercised, if at all, by Tenant giving Landlord
written notice no later than December 31, 2000, for a non-exclusive license (the
"License") to use for the permitted use described below and for no other use,
and hereby and by exercise of any such option, Tenant accepts from Landlord said
license to so use the Roof Space:
(a) part of the open space on the roof (the "Roof") of the
Building in the particular location set forth on Exhibit G hereto (the "Roof
Space") for one or two antennas, as defined in Exhibit G hereto (the "Antenna"
or "Antennas"); and
(b) one (1) path for electrical wiring to connect the Antenna to
the Building's electricity, if any, and one (1) path for television,
telecommunications, fiber optic or coaxial cable or related connection from the
Antenna through the route to below the Roof in the particular location and
manner approved in writing by Landlord prior to installation pursuant to Section
8.7, and continuing to the Premises through the Building's existing risers,
conduits and shafts, subject to reasonable space limitations and Landlord's
requirements for use of such areas (such path or paths are collectively referred
to as the "Cable Path" and all such electrical and other connections are
referred to collectively as "Connections").
8.2 Permitted Use. The permitted use is solely to install, operate,
maintain and use, for the sole purpose of reception of data and communication
signals, the following: (a) the Antenna (defined in Exhibit G hereto) within the
Roof Space; and (b) the Connections necessary to connect the Antenna with
Tenant's related equipment located in the Premises, running through the Cable
Path. The Antenna and Connections are collectively referred to as the
"Equipment".
8.3 Term. The term of the License shall commence upon the date of
exercise of each respective option and shall terminate upon the earlier of (i)
the date of expiration or earlier termination of the Lease Term or of Tenant's
right to possession of the Premises; (ii) the date on which any Law requires the
removal or prohibits the use of the Equipment; (iii) at Landlord's option, as an
additional remedy hereunder, exercisable by written notice to Tenant in the
event that the Equipment or manner of installation is not in compliance with the
provisions hereof; or (iv) as provided in Section 8.5 below. Except as otherwise
provided in this Lease, this License shall not be revocable and shall continue
for the full term, unless sooner terminated as otherwise provided in this
Article. Notwithstanding any provision of this License to the contrary, Tenant
shall have the right to terminate this License, as to either or both Antennas,
prior to the expiration or termination of the Lease upon Tenant's giving
Landlord not less than thirty (30) days prior written notice.
8.4 License Non-Exclusive. Tenant shall not have the exclusive right to
antenna use and space at the Building or Project. Tenant acknowledges and agrees
that Landlord has previously granted others rights to use the Roof or other
areas of the Building or the Project for antennas or other equipment for the
reception or transmission of data or other signals, and that the rights granted
to Tenant pursuant to this License are expressly subject and subordinate to the
rights previously granted to others, whether or not such others have exercised
such rights as of the date of the Lease, and the Equipment shall not interfere
with any antennas and equipment now or hereafter installed pursuant to any such
rights on the Roof or at the Project. Tenant further acknowledges and agrees
that Landlord shall have the right hereafter to grant similar or other rights to
third parties to use the Roof or other space at the Building or Project for
antennas or other devices for the reception or transmission of data or other
signals.
8.5 Interference.
(a) Without limiting the generality of any other provision
hereof, Tenant shall ensure that the installation, maintenance, operation and
use of the Equipment shall not (i) damage or interfere in any way (whether due
to microwave, radio frequency, electronic, electromagnetic or other
interference) with operation or use of any systems, equipment or devices
(whether electrical, communications, computer or any other type of systems,
equipment or devices) serving or in use now or hereafter by the Building, the
Project or the
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occupants or licensees of either; or (ii) subject Landlord to risk of civil or
criminal damages or penalties. If the installation, maintenance operation or use
of the Equipment causes such damage or interference or subjects Landlord to such
damages or penalties, or if Landlord determines in its good faith discretion
that there is a reasonable basis indicating that such installation, maintenance,
operation or use is so causing such interference or subjecting Landlord to such
damages or penalties, then upon notice from Landlord (which may be verbal notice
in the event of any actual interference so long as it is followed by written
notice), Tenant shall immediately stop the activity causing such interference or
subjecting Landlord to such damages or penalties and shall not resume such
activity unless and until it may be resumed without causing such interference or
subjecting Landlord to such damages or penalties. Without limiting the
generality of the foregoing, and as an additional remedy of Landlord, if Tenant
is not able to resume such activity without causing such interference or
subjecting Landlord to such damages or penalties, then at Landlord's option,
exercisable by written notice to Tenant, Landlord may terminate this License.
(b) If there is material interference with Tenant's ability to
operate its Equipment at the Roof Space caused by Landlord or Landlord's
employees', agents' or contractors' acts or omissions, or caused by another
entity whose use of the Roof or other part of the Project and whose equipment
thereon interferes with Tenant's permitted use hereunder, Landlord shall
exercise good faith efforts to alleviate the cause of said interference, subject
to the rights of such entity. If said interference is not alleviated within
thirty (30) days, Landlord shall make a good faith effort to allow Tenant to
relocate to other mutually acceptable Roof space where the Equipment properly
functions, which site thereafter will be substituted for the space originally
designated as the Roof Space. If Landlord does not offer or the parties do not
agree upon a mutually acceptable relocation site, Tenant shall have the right to
cancel and terminate this License as its sole and exclusive remedy hereunder.
8.6 Condition; Services; Security; Access.
(a) Tenant shall accept the Roof Space and Cable Path in its
condition and "as-built" configuration existing on the date or dates of exercise
of the option or options, as applicable. Landlord has made no promise to alter
or improve the Roof Space or the Cable Path and no representation respecting
their condition unless and except as expressly set forth herein.
(b) Tenant may connect to and use the Building's electricity,
subject to the provisions of the Lease governing use of electricity and all
requirements of this Lease, and without limiting the generality of the
foregoing, Tenant acknowledges and agrees that Tenant shall pay all costs
associated with such use, including without limitation, installation,
maintenance and repair of any Connections and of any separate meter required by
Landlord.
(c) Landlord is not obligated to furnish any security for the
Roof Space or Cable Path. Tenant assumes full responsibility for protecting from
theft or damage the Equipment and any other tools or equipment that Tenant may
use in connection with the installation, repair or maintenance of the Equipment,
assumes all risk of theft, loss or damage, waives any claim with respect thereto
against Landlord and its property manager (and the employees, owners, partners
and agents of each), and hereby indemnifies and agrees to hold harmless and
defend such parties from any claims, losses, liabilities, damages or expenses
arising out of the foregoing, including without limitation, subrogation claims
by Tenant's insurers.
(d) Landlord shall allow Tenant access to the Roof Space and
Cable Path for the purposes of installation, maintenance and repair of the
Equipment during normal business hours of the Building upon Tenant's reasonable
advance request, subject to reasonable rules and restrictions of Landlord.
8.7 Installation. Tenant or Tenant's employees, agents or contractor,
subject to Landlord's prior written approval, shall install the Equipment at
Tenant's sole cost and expense. The Equipment and work related to its
installation ("Installation Work") shall be subject to (a) obtaining Landlord's
prior written approval of plans and specifications, which approval shall not be
unreasonably withheld, and Tenant acknowledges and agrees that, without limiting
the generality of the foregoing, it shall be reasonable for Landlord to
disapprove any Antenna which exceeds the height of the Roof parapet or any
mounting structure or method of attachment to the Roof which would penetrate or
damage the Roof membrane; and (b) all additional requirements that apply with
respect to alterations by Tenant to the Premises under the Lease. Tenant shall
comply with all Roof load limitations. Installation Work shall be completed in
accordance with the foregoing, in accordance with all applicable Law, and in a
good and workmanlike manner in cooperation with Landlord. All labor used by
Tenant or any of Tenant's agents or contractors shall be compatible with then
existing labor in the Building. Tenant shall notify Landlord of the date of
substantial completion of the installation of the Equipment.
8.8 Roof Damage. Any damage to the Roof or any other portion of the
Building resulting from the installation, operation, maintenance or removal of
the Equipment, including without limitation, leakage, water damage or damage to
the roof membrane, shall be repaired by Landlord at Tenant's sole cost and
expense. Tenant shall reimburse Landlord for any costs and expenses so incurred
by Landlord within thirty (30) days after Landlord's written request therefor.
Tenant shall, at Tenant's sole cost and expense, provide protection to the roof
membrane as Landlord may deem necessary so that such membrane is not damaged by
personnel in connection with installation, operation, maintenance or removal.
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8.9 Compliance With Laws. Tenant shall comply with all local, state and
federal Laws, regulations and governmental agency requirements applicable to the
installation and operation of the Equipment. Tenant shall be responsible for
obtaining, if required, any building permits, and any licenses or permits which
may be required by the Federal Communication Commission (FCC), the Federal
Aviation Administration (FAA) or any other governmental agency having
jurisdiction over the Equipment or the Building. If necessary, Landlord agrees
reasonably to cooperate with Tenant, at Tenant's expense, to obtain any
appropriate licenses or permits. Without limiting the generality of the
foregoing, (a) if required by any such governmental agencies or by Landlord,
Tenant will paint the dish portion of the Antenna, and (b) if required by the
FCC, FAA or other governmental agency, Tenant shall install a waterproof label
on the Antenna specifying the name, address and phone number of the Tenant and
the name and phone number of a person to contact in an emergency.
8.10 Destruction/Condemnation. In the event the Roof is damaged to such
a degree that the Antenna can no longer be operated or the Roof Space is taken
by power of eminent domain, Tenant may immediately terminate its rights
hereunder by providing written notice to Landlord. In the event of such a
casualty or condemnation and provided that the Lease has been terminated because
of such casualty or condemnation pursuant to the provisions therein, this
License may also be terminated by Landlord simultaneous with the Lease
termination, otherwise any damage to the Roof shall be repaired by Landlord,
subject to all provisions of and limitations of the Lease.
8.11 Termination; Equipment As Property of Tenant. Upon the expiration
or sooner termination of this License, Tenant shall immediately cease using the
Roof Space and Cable Path. Tenant shall, at its own cost and expense,
immediately remove the Equipment and shall restore the Roof Space and areas
affected by the cabling installations to the condition in which they were found
prior to the installation of the Equipment, reasonable wear and damage by
casualty excepted. The Equipment shall be considered personal property of
Tenant. Provided, however, if Tenant fails timely to remove the Equipment, it
shall be deemed abandoned and may be claimed by Landlord or removed and disposed
of by Landlord at Tenant's expense.
8.12 Temporary Removal Of Antenna. Tenant, at its sole expense, shall
remove or relocate the Equipment on a temporary basis and upon ten (10) days
written notice from Landlord at any time Landlord determines such removal or
relocation is reasonably necessary or appropriate for the expeditious repair,
replacement, alteration, improvement or additions to or of the Roof or any area
of the Cable Path, or to access any such areas for Building needs.
8.13 General Provisions; Rent; Default; Landlord Access; Liability;
Indemnification. Tenant and Landlord acknowledge and agree that the Roof Space
is not a part of the Premises, but agree that except as otherwise provided in
this Lease this License shall be upon and subject to the same conditions,
covenants and terms contained in the Lease as apply with respect to the
Premises, including without limitation, those pertaining to any act or omission
in connection with Tenant's use, compliance with Laws, rent, utilities, repairs,
alterations, default, indemnification and waiver of claims of the Lease, as
fully as if the Roof Space and Cable Path were part of the Premises and as if
the use under this License and all acts or omissions with respect to this
License occurred in the Premises, provided that notwithstanding any provision of
the Lease or of the foregoing to the contrary, Landlord and Tenant agree as
follows: (a) for this License Tenant shall not be obligated to pay Landlord any
separate fee ("Antenna Rent") under the Lease; (b) any default by Tenant or
Landlord under any condition, term or covenant of this License shall be deemed a
default by such party under the Lease, subject to the same rights and remedies
of the parties with respect to, and with the same effect as, a default under
other provisions of the Lease; (c) any restriction (if any) on Landlord's access
and entry to the Premises set forth in the Lease shall not apply to the Roof
Space, and Landlord shall have full and unrestricted access over and to all
areas of the Roof, and others having equipment or installations on the Roof
shall have full and unrestricted access over and to the areas of the Roof on
which such equipment or installations are located; (d) if the real estate taxes
or insurance premiums for the Building are increased as a result of the
installation of the Equipment, then Tenant shall pay its share of any such
increase directly attributable to such installation upon notice from Landlord,
which notice shall include evidence of such increase; and (e) Tenant shall
insure the Equipment under Tenant's liability and casualty insurance policies
required under the Lease and provide Landlord with proof of same.
SECTION 9. OPTION TO EXTEND
(a) Landlord hereby grants Tenant a single option to extend the initial
Term of the Lease for an additional period of five (5) years (such period may be
referred to as the "Option Term"), as to the entire Premises as it may then
exist, upon and subject to the terms and conditions of this Section (the "Option
To Extend"), and provided that at the time of exercise of such right: (i) Tenant
must be in occupancy; and (ii) there has been no material adverse change in
Tenant's financial position from such position as of the date of execution of
the Lease, as certified by Tenant's independent certified public accountants,
and as supported by Tenant's certified financial statements, copies of which
shall be delivered to Landlord with Tenant's written notice exercising its right
hereunder.
(b) Tenant's election (the "Election Notice") to exercise the Option To
Extend must be given to Landlord in writing no earlier than the date which is
twelve (12) months before the Expiration Date and no later than the date which
is nine (9) months prior to the Expiration Date. If Tenant either fails or
elects
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not to exercise its Option to Extend by not timely giving its Election Notice,
then the Option to Extend shall be null and void.
(c) The Option Term shall commence immediately after the expiration of
the initial Term of the Lease. Tenant's leasing of the Premises during the
Option Term shall be upon and subject to the same terms and conditions contained
in the Lease except that (i) the Monthly Base Rent and, if applicable, the
Operating Expenses Base Year, the Taxes Base Year and parking charges pursuant
to the Lease shall be amended to equal the "Option Term Rent", defined and
determined in the manner set forth in the immediately following Subsection; (ii)
the Security Deposit, if any, shall be increased within fifteen (15) days after
the Prevailing Market Rent has been determined to equal one hundred percent
(100%) of the highest monthly installment of Monthly Base Rent thereunder; (iii)
Tenant shall accept the Premises in its "as is" condition without any obligation
of Landlord to repaint, remodel, repair, improve or alter the Premises or to
provide Tenant any allowance therefor; and (iv) there shall be no further option
or right to extend the term of the Lease. If Tenant timely and properly
exercises the Option To Extend, references in the Lease to the Term shall be
deemed to mean the initial Term as extended by the Option Term unless the
context clearly requires otherwise.
(d) The Option Term Rent shall mean the greater of (i) the Monthly Base
Rent and parking charges payable by Tenant under this Lease calculated at the
rate applicable for the last full month of the initial Term, with Rent
Adjustments based upon the Operating Expenses Base Year and Taxes Base Year as
defined in Section 1.03 (collectively, "Preceding Rent") or (ii) the "Prevailing
Market Rent". As used herein Prevailing Market Rent shall mean the rent and all
other monetary payments and escalations, including consumer price increases,
that Landlord could obtain from a third party desiring to lease the Premises for
a term equal to the Option Term and commencing when the Option Term is to
commence under market leasing conditions, and taking into account the following:
the size, location and floor levels of the Premises; the type and quality of
tenant improvements; age and location of the Project; quality of construction of
the Project the; financial strength of Tenant; services to be provided by
Landlord or by tenant; the rent, all other monetary payments and escalations
obtainable for leases of space comparable to the Premises in the Project and in
the Comparable Buildings, and other factors that would be relevant to such a
third party in determining what such party would be willing to pay therefor,
provided, however, that Prevailing Market Rent shall be determined without
reduction or adjustment for "Tenant Concessions" (as defined below), if any,
being offered to prospective new tenants of comparable space. For purposes of
the preceding sentence, the term "Tenant Concessions" shall include, without
limitation, tenant improvement allowances and work, moving allowances, and lease
takeovers. The determination of Prevailing Market Rent based upon the foregoing
criteria shall be made by Landlord, in the good faith exercise of Landlord's
business judgment and using the best available market data. Within thirty (30)
days after Tenant's exercise of the Option To Extend, Landlord shall notify
Tenant of Landlord's determination of Option Term Rent for the Premises. If
Landlord's determination of Prevailing Market Rent is greater than the Preceding
Rent, and if Tenant, in Tenant's sole discretion, disagrees with the amount of
Prevailing Market Rent determined by Landlord, Tenant may elect to revoke and
rescind the exercise of the option by giving written notice thereof to Landlord
within thirty (30) days after notice of Landlord's determination of Prevailing
Market Rent.
(e) This Option to Extend is personal to Calico and may not be used by,
and shall not be transferable or assignable (voluntarily or involuntarily) to
any person or entity.
(f) Upon the occurrence of any of the following events, Landlord shall
have the option, exercisable at any time prior to commencement of the Option
Term, to terminate all of the provisions of this Section with respect to the
Option to Extend, with the effect of canceling and voiding any prior or
subsequent exercise so this Option to Extend is of no force or effect:
(i) Tenant's failure to timely exercise the Option to Extend in
accordance with the provisions of this Section.
(ii) The existence at the time Tenant exercises the Option to
Extend or at the commencement of the Option Term of any Default on the
part of Tenant under the Lease, provided, for purposes of this Section
only, that with respect to a monetary default, Landlord has given Tenant
notice of such default.
Rider 2 - Page 10
<PAGE> 63
(g) Without limiting the generality of any provision of the Lease, time
shall be of the essence with respect to all of the provisions of this Section.
IN WITNESS WHEREOF, the parties hereto have executed this Rider 2 as of
the date first set forth in the Lease.
<TABLE>
<CAPTION>
TENANT: LANDLORD:
- ------- ---------
<S> <C>
Calico Commerce, Inc., Metropolitan Life Insurance Company,
a Delaware corporation a New York corporation
By /s/ Alan Naumann By /s/ Edward J. Hayes
-------------------------------- --------------------------------
Its President and CEO Its Assistant Vice President
-------------------------------- --------------------------------
(Chairman of Board, President or
Vice President
By /s/ Arthur F. Knapp, Jr
--------------------------------
Its VP/CFO
--------------------------------
(Secretary, Assistant Secretary,
CFO or Assistant Treasurer)
</TABLE>
Rider 2 - Page 11
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> MAR-31-2000
<PERIOD-START> APR-01-1999
<PERIOD-END> SEP-30-1999
<CASH> 6,366
<SECURITIES> 0
<RECEIVABLES> 8,862
<ALLOWANCES> 1,109
<INVENTORY> 0
<CURRENT-ASSETS> 15,623
<PP&E> 8,780
<DEPRECIATION> 3,005
<TOTAL-ASSETS> 23,040
<CURRENT-LIABILITIES> 15,824
<BONDS> 1,631
32,551
0
<COMMON> 12
<OTHER-SE> (26,754)
<TOTAL-LIABILITY-AND-EQUITY> 23,040
<SALES> 6,959
<TOTAL-REVENUES> 15,809
<CGS> 373
<TOTAL-COSTS> 6,506
<OTHER-EXPENSES> 19,978
<LOSS-PROVISION> 450
<INTEREST-EXPENSE> (137)
<INCOME-PRETAX> (11,188)
<INCOME-TAX> 0
<INCOME-CONTINUING> (11,188)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (11,188)
<EPS-BASIC> (1.21)
<EPS-DILUTED> (1.21)
</TABLE>
