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FOURTH AMENDMENT TO LEASE

Lease Agreement

FOURTH AMENDMENT TO LEASE | Document Parties: BAZAARVOICE INC | 3900 San Clemente GP, Inc | 3900 SAN CLEMENTE, LP | BAZAARVOICE, INC You are currently viewing:
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BAZAARVOICE INC | 3900 San Clemente GP, Inc | 3900 SAN CLEMENTE, LP | BAZAARVOICE, INC

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Title: FOURTH AMENDMENT TO LEASE
Governing Law: Texas     Date: 8/26/2011

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Exhibit 10.29

FOURTH AMENDMENT TO LEASE

THIS FOURTH AMENDMENT TO LEASE (this “Amendment”) is entered into as of the 11 day of May, 2011, by and between 3900 SAN CLEMENTE, L.P ., a Texas limited partnership (“Landlord”) and BAZAARVOICE, INC ., a Delaware corporation (“Tenant”).

WHEREAS, Landlord and Tenant entered into that certain Office Lease Agreement dated as of July 15, 2009 (the “Lease Agreement”) pursuant to which Tenant leased from Landlord certain space in that building known as 3900 San Clemente, and located at 3900 N. Capital of Texas Highway, Austin, Texas 78746 (the “Building”), as more particularly described therein;

WHEREAS, the Lease Agreement has been amended by that certain Acceptance of Premises Memorandum dated October 21, 2009, that certain First Amendment to Lease Agreement (the “First Amendment”) dated as of January 19, 2010, that certain Second Amendment to Lease (the “Second Amendment”) dated as of February 8, 2010, that certain Third Amendment to Lease dated as of March 30, 2010, and that certain Acceptance of Premises Memorandum for Suite 250 dated May 12, 2010 (the Lease Agreement, as amended, the “Lease”), whereby Tenant currently leases from Landlord approximately 76,804 square feet of Agreed Rentable Area (the “Current Premises”) known as Suite 300 and Suite 250 on the third (3rd) and second (2nd) floors of the Building;

WHEREAS, Tenant desires to lease additional space in the Building currently designated as Suite 260, containing approximately 17,282 square feet of Agreed Rentable Area located on the second (2nd) floor of the Building as shown on Exhibit A attached hereto (the “260 Expansion Space”);

WHEREAS, the Term of the Lease is currently scheduled to expire by its terms on January 31, 2015, and Tenant desires to extend the Term of the Lease with respect to only the 260 Expansion Space to expire on the last day of the calendar month which is fifty (50) months following the 260 Expansion Date (hereinafter defined);

WHEREAS, subject to the terms and conditions set forth below, Landlord has agreed to lease the 260 Expansion Space to Tenant and to extend the Term as set forth herein; and

WHEREAS, Landlord and Tenant desire to amend the Lease to reflect their agreements as to the terms and conditions governing Tenant’s lease of the 260 Expansion Space and the extension of the Term of the Lease.

NOW, THEREFORE, in consideration of the premises and the mutual covenants between the parties herein contained, Landlord and Tenant hereby agree as follows:

1. Premises.

(a) Effective as of the 260 Expansion Date, Landlord shall lease the 260 Expansion Space to Tenant and Tenant shall lease the 260 Expansion Space from Landlord, and the Premises, as defined in the Lease, shall mean, collectively, the Current Premises and the 260 Expansion Space. Accordingly, effective as of the 260 Expansion Date, the “Agreed Rentable Area”, as defined in Item 2 of the Basic Lease Provisions, shall be amended to mean 94,086 square feet. The 260 Expansion Space shall be subject to all the terms and conditions of the

 

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Lease except as expressly modified herein and except that Tenant shall not be entitled to receive any allowances or free rent granted with respect to the Current Premises unless such concessions are expressly provided for herein with respect to the 260 Expansion Space.

(b) As used herein, the “260 Expansion Date” shall mean the date of Substantial Completion with respect to the 260 Expansion Space, subject to adjustment for any Tenant Delays (as defined and determined in accordance with the terms of the Work Letter attached hereto as Exhibit B ) and delivery of possession of the 260 Expansion Space in vacant, broom clean condition. Upon Substantial Completion of the 260 Expansion Space, Landlord and Tenant shall execute an Acceptance of Premises Memorandum in substantially the form of Exhibit E attached to the Lease. If Tenant occupies any portion of the 260 Expansion Space, other than for the purposes of installing Tenant’s property as described in Section 1(c) below, without executing the Acceptance of Premises Memorandum, Tenant shall be deemed to have accepted such 260 Expansion Space for all purposes, subject to the terms of the Lease as otherwise applicable to the Premises (e.g., Tenant’s express rights to object to defects). Effective as of the 260 Expansion Date, Exhibit A attached hereto shall be added to and incorporated into Exhibit A to the Lease. Notwithstanding anything to the contrary in this Amendment, if the 260 Expansion Date is delayed beyond July 1, 2011, then the Density Surcharge that would otherwise be payable under the Lease shall be deemed waived until the date that is sixty (60) days after the 260 Expansion Date.

(c) Tenant shall have the right to access the 260 Expansion Space approximately two (2) weeks prior to the 260 Expansion Date for the sole purpose of installing furniture, trade fixtures, telecommunications or other personal property of Tenant and otherwise preparing the 260 Expansion Space for occupancy, provided that Tenant coordinates such access with Landlord’s general contractor and does not materially interfere with the construction of the Tenant’s Improvements (as defined in Exhibit B attached hereto). Such access shall be subject to all of the terms and conditions of the Lease, and except for the cost of above Building standard services requested by Tenant in writing (e.g. after hours HVAC), Tenant shall not be required to pay Rent or other remuneration with respect to the 260 Expansion Space for the period of time prior to the 260 Expansion Date during which Tenant performs such work in the 260 Expansion Space.

2. Term . The Term of the Lease is hereby extended with respect to only the 260 Expansion Space to expire on the last day of the calendar month which is fifty (50) months following the 260 Expansion Date (such date, the “260 Expiration Date”), unless sooner terminated in accordance with the terms of the Lease. The Term of the Lease with respect to the Current Premises shall expire in accordance with the terms of the Lease.

3. Basic Rent . Commencing on the 260 Expansion Date, in addition to the Basic Rent payable with respect to the Current Premises, Tenant shall pay Basic Rent for the 260 Expansion Space as follows:

 

Rental Period

  

Rate Per Square
Foot of Agreed
Rentable Area

 

  

Basic
Annual
Rent

 

  

Basic
Monthly
Rent

 

Expansion Months 1 — 2

  

$

0.00

  

  

$

0.00

  

  

$

0.00

  

Expansion Months 3 — 14

  

$

19.75

  

  

$

341,319.48

  

  

$

28,443.29

  

 

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Expansion Months 15 — 26

  

$

20.25

  

  

$

349,960.56

  

  

$

29,163.38

  

Expansion Months 27 — 38

  

$

20.75

  

  

$

358,601.52

  

  

$

29,883.46

  

Expansion Months 39 — 50

  

$

21.25

  

  

$

367,242.48

  

  

$

30,603.54

  

All such Basic Rent shall be payable in accordance with the terms of the Lease. As used in this Amendment, an “Expansion Month” means a period of time commencing on the same numeric day as the 260 Expansion Date and ending on (but not including) the day in the next calendar month that is the same numeric date as the 260 Expansion Date; provided, however, that if the 260 Expansion Date does not occur on the first day of a calendar month, then the third (3rd) Expansion Month shall be extended to end on the last day of the third (3rd) full calendar month following the 260 Expansion Date, and the succeeding Expansion Months shall commence on the first day of each calendar month thereafter.

4. Tenant’s Pro Rata Share Percentage . Commencing on the 260 Expansion Date, Tenant shall pay Additional Rent with respect to the 260 Expansion Space in accordance with the terms of the Lease, including without limitation during the first two Expansion Months. Effective as of the 260 Expansion Date, “Tenant’s Pro Rata Share Percentage”, as defined in Item 4 of the Basic Lease Provisions, shall be amended to mean 37.4627%.

5. Acceptance of 260 Expansion Space . Tenant acknowledges that Tenant has inspected the 260 Expansion Space and, except for latent defects discovered and reported to Landlord by Tenant within 180 days after the 260 Expansion Date and subject to Landlord’s completion of its obligations under the Work Letter attached hereto as Exhibit B , Tenant hereby accepts the 260 Expansion Space (including the suitability of the 260 Expansion Space for the Permitted Use) for all purposes. By taking possession of the 260 Expansion Space, Tenant shall be deemed to have accepted the 260 Expansion Space and agreed that the 260 Expansion Space is in good order and satisfactory condition, with no representation or warranty by Landlord as to the condition of the 260 Expansion Space or the Building or suitability thereof for Tenant’s use, except as otherwise expressly set forth in the Lease. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THE LEASE, NO WARRANTIES, EXPRESS OR IMPLIED, ARE MADE REGARDING THE CONDITION OR SUITABILITY OF THE 260 EXPANSION SPACE ON THE 260 EXPANSION DATE. FURTHER, TO THE EXTENT PERMITTED BY LAW, TENANT WAIVES ANY IMPLIED WARRANTY OF SUITABILITY OR OTHER IMPLIED WARRANTIES THAT LANDLORD WILL MAINTAIN OR REPAIR THE 260 EXPANSION SPACE OR ITS APPURTENANCES EXCEPT AS MAY BE CLEARLY AND EXPRESSLY PROVIDED IN THE LEASE.

6. Renewal Options . Tenant shall continue to have the option to renew the term of the Lease with respect to only the Current Premises in accordance with the terms of Rider 1 to the Lease, which renewal option is hereby ratified and confirmed. In addition, Tenant shall have the option to renew the term of the Lease with respect to only the 260 Expansion Space in accordance with the terms of Exhibit C attached hereto. If Tenant fails to exercise a renewal option with respect to the Current Premises (or later with respect to the 260 Expansion Space) so that Tenant only leases the 260 Expansion Space (or only the Current Premises), then Landlord and Tenant shall enter into an amendment to the Lease, as amended hereby, to reflect the changes in the Agreed Rentable Area, Tenant’s Pro Rata Share Percentage and other appropriate terms. As an alternative to the renewal options described above, Tenant shall have the right to renew the term of the Lease with respect to all (but not a portion) of both the Current Premises

 

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and the 260 Expansion Space (the “Expanded Premises Renewal Option”) for a period of five (5) years commencing on February 1, 2015 and expiring on January 31, 2020, subject to and in accordance with the terms of Exhibit D attached hereto. If Tenant is entitled to and properly exercises the Expanded Premises Renewal Option, then Rider 1 to the Lease and Exhibit C attached hereto shall automatically be deleted and of no further force or effect. If Tenant fails to properly exercise the Expanded Premises Renewal Option, then Exhibit D attached hereto shall automatically be deleted and Tenant shall continue to have the renewal options described above with respect to only the Current Premises and with respect to only the 260 Expansion Space, subject to the terms thereof.

7. Termination Option . The Termination Option set forth in Rider 4 to the Lease shall only apply with respect to the Current Premises (notwithstanding anything to the contrary set forth in such Rider 4) and is hereby ratified and confirmed, and Tenant shall have no right under such Rider 4 to terminate the Lease with respect to the 260 Expansion Space. In the event Tenant is entitled to and properly exercises its Termination Option with respect to the Current Premises, Landlord and Tenant shall enter into an amendment to the Lease, as amended hereby, to reflect the changes in the Agreed Rentable Area, Tenant’s Pro Rata Share Percentage and other appropriate terms.

8. Security Deposit . In addition to the Security Deposit currently required under the Lease, Tenant shall pay to Landlord contemporaneously with its execution and delivery of this Amendment the amount of $758,000.00 (the “260 Security Deposit”), which will be held as security for Tenant’s performance of the terms of the Lease, as amended hereby. The 260 Security Deposit shall be subject to all the terms of the Lease applicable to the Security Deposit, including those allowing the Security Deposit to provided in the form of a letter of credit (references to the 260 Security Deposit shall also include references to the letter of credit that Tenant may deliver in lieu of the cash 260 Security Deposit); provided that (i) all provisions providing for the return of the Security Deposit upon the expiration or termination of the Lease shall not apply to the 260 Security Deposit except in connection with the expiration or termination of the Lease with respect to the 260 Expansion Space; and (ii) the 260 Security Deposit shall not be subject to reduction as set forth in the last paragraph of Article 3 of the Lease with respect to the Security Deposit. For example, if the 260 Security Deposit is provided through an increase in the existing Letter of Credit and Tenant is entitled to reduce the Letter of Credit as of the last day of the forty-eighth (48th) Lease Month of the Term as provided in the last paragraph of Article 3 of the Lease, then the amount of such Letter of Credit would reduce to $1,058,000 (i.e. $300,000 for the reduced existing Security Deposit, plus $758,000 for the original 260 Security Deposit).

Notwithstanding anything herein to the contrary, provided Tenant is not in default under the Lease as defined in Section 13.1 of the Lease and with respect to defaults for which Tenant has a notice and cure period, no notice of default has been given as of the effective date of the reduction of the 260 Security Deposit, Tenant shall have the right to reduce the amount of the 260 Security Deposit (but not the original Security Deposit or Letter of Credit) to $258,000.00 effective upon the occurrence of both of (i) and (ii) following: (i) the last day of the thirty-sixth (36th) Expansion Month and (ii) the date upon which Tenant’s audited financial statements shall reflect Tenant having (x) a tangible net worth (as determined in accordance with generally accepted accounting principles) of at least $100,000,000, and (y) cash and cash equivalents in an amount of not less than $50,000,000. In the event Tenant is in default under the Lease as defined in Section 13.1 or with respect to any defaults for which Tenant has a notice and cure period, a

 

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default notice has been given to Tenant, as of the effective date of the reduction, if any, of the 260 Security Deposit, the same shall not reduce and Tenant shall maintain the 260 Security Deposit in place without reduction. In the event Tenant is maintaining a cash 260 Security Deposit (i.e., if Tenant has not elected to provide a letter of credit in lieu thereof) at the time of a reduction of the 260 Security Deposit as described above, then the excess 260 Security Deposit then held by Landlord shall be returned to Tenant within thirty (30) days after Landlord’s receipt of Tenant’s written request therefor, after deducting any amounts then payable by Tenant. From and after the date Tenant is entitled to a reduction of the 260 Security Deposit as set forth above, Landlord shall not be entitled to draw under the letter of credit evidencing the 260 Security Deposit more than the reduced amount, even if the existing letter of credit held by Landlord has a face amount greater than such reduced amount.

9. Parking . Tenant’s parking rights with respect to the Current Premises shall continue in accordance with the terms of the Lease. In addition, commencing on the 260 Expansion Date and continuing so long as the Lease, as amended hereby, remains in effect with respect to the 260 Expansion Space, Tenant or persons designated by Tenant shall have the right (but not the obligation) to rent (at no additional charge during the initial term and any renewals thereof) on an unreserved and non-exclusive basis parking spaces in or on the roof of the Garage and in the Building parking lot at a ratio of four (4) parking spaces for every 1,000 square feet of Agreed Rentable Area in the 260 Expansion Space. Notwithstanding anything contained in the Lease, except as set forth in the preceding sentence, Tenant shall not be entitled to any additional parking spaces in connection with the addition of the 260 Expansion Space to the Premises under the Lease. Tenant’s use of such additional spaces shall be governed by the terms of the Lease, except as otherwise provided herein.

10. Expansion Options . Tenant acknowledges that the Expansion Space leased by Tenant pursuant to the terms of the Second Amendment is the Expansion Space described in Rider 2 to the Lease, as amended by Section 2 of the First Amendment. Accordingly, Rider 2 to the Lease, as amended by Section 2 of the First Amendment, is hereby deleted in its entirety. The first paragraph of Section A of Rider 3 to the Lease, as amended by Section 3 of the First Amendment, is hereby amended in its entirety to read as follows:

Tenant shall have a right of opportunity (the “Right of Opportunity”) on (i) the space containing 7,408 square feet of Agreed Rentable Area known as Suite 150 on the first (1st) floor of the Building, and (ii) the space containing 7,510 square feet of Agreed Rentable Area known as Suite 200 on the second (2nd) floor of the Building, each as shown on Schedule A attached hereto (each, an “Opportunity Expansion Space”) as provided in this Rider 3. In the event Landlord shall desire to offer all or any portion of the Opportunity Expansion Space for rent, license or any other possessory arrangement with a bona-fide third party, and Landlord shall thereafter receive a counter proposal from a bona-fide third party covering all or any portion of the applicable Opportunity Expansion Space, Landlord shall deliver to Tenant a written statement (the “Statement”) setting forth the terms on which Landlord is willing to lease the entire applicable Opportunity Expansion Space to Tenant, which terms shall reflect the terms which are no worse for Tenant than the terms on which Landlord is willing to lease such space to a bona-fide third party. Tenant may lease the entire (but not a portion of) applicable Opportunity Expansion Space under such terms, by providing Landlord with written notice of exercise (the “Notice of Exercise”) within ten (10) days after the date of the

 

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Statement, except that Tenant shall have no such right and Landlord need not provide Tenant with an Statement if:

Each reference to the “Opportunity Expansion Space” contained in the remaining provisions of Rider 3 to the Lease shall mean either the Opportunity Expansion Space located on the first (1st) floor of the Building or the Opportunity Expansion Space located on the second (2nd) floor of the Building, as the case may be. Exhibit E attached hereto is hereby added to and incorporated into the Lease as Schedule A of Rider 3 to the Lease. The Opportunity Expansion Space located on the second (2nd) floor of the Building is currently leased to a third party tenant and, notwithstanding anything contained in Rider 3 to the Lease, as amended hereby, Tenant’s Right of Opportunity with respect to the Opportunity Expansion Space located on the second (2nd) floor of the Building is subject and subordinate to the right of the existing tenant leasing such space to extend or renew the term of its lease (whether or not expressly stated as a right in such tenant’s lease).

11. Brokers . Tenant warrants that it has had no dealings with any real estate broker or agent in connection with the negotiation of this Amendment other than The Aleshire Company (“Tenant’s Broker”) and HPI Real Estate and Investments (“Landlord’s Broker”), and that it knows of no other real estate brokers or agents who are or might be entitled to a commission in connection with this Amendment. Landlord agrees to pay a commission to Tenant’s Broker and to Landlord’s Broker pursuant to separate written agreements between Landlord and such brokers. Tenant agrees to indemnify and hold Landlord harmless from and against any liability or claim arising in respect to any brokers or agents claiming a commission by, through, or under Tenant in connection with this Amendment other than Tenant’s Broker. Landlord agrees to indemnify and hold Tenant harmless from and against any liability or claim arising in respect to any brokers or agents claiming a commission by, through, or under Landlord in connection with this Amendment.

12. Defined Terms . Except as defined differently herein, all capitalized terms used in this Amendment shall have the meanings ascribed to them under the Lease.

13. Authority . Tenant represents to Landlord as follows: (i) Tenant is a duly foamed and validly existing corporation under the laws of the State of Delaware, (ii) Tenant has and is qualified to do business in Texas, (iii) Tenant has the full right and authority to enter into this Amendment, and (iv) each person signing on behalf of Tenant was and continues to be authorized to do so.

14. Exhibit . Each exhibit attached hereto is made a part hereof for all purposes.

15. Ratification of Lease . Except as amended hereby, the Lease shall remain in full force and effect in accordance with its terms and is hereby ratified. In the event of a conflict between the Lease and this Amendment, this Amendment shall control.

16. Entire Agreement . This Amendment, together with the Lease, contains all of the agreements of the parties hereto with respect to any matter covered or mentioned in this Amendment or the Lease, and no prior agreement, understanding or representation pertaining to any such matter shall be effective for any purpose.

 

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17. Successors and Assigns . The terms and provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

18. Severability . A determination that any provision of this Amendment is unenforceable or invalid shall not affect the enforceability or validity of any other provision hereof and any determination that the application of any provision of this Amendment to any person or circumstance is illegal or unenforceable shall not affect the enforceability or validity of such provision as it may apply to any other persons or circumstances.

19. Governing Law . This Amendment shall be governed by the laws of the State of Texas.

20. Submission of Amendment Not Offer . The submission by Landlord to Tenant of this Amendment for Tenant’s consideration shall have no binding force or effect, shall not constitute an option, and shall not confer any rights upon Tenant or impose any obligations upon Landlord irrespective of any reliance thereon, change of position or partial performance. This Amendment is effective and binding on Landlord only upon the execution and delivery of this Amendment by Landlord and Tenant.

21. Operating Expense Exclusions . Notwithstanding anything to the contrary in the Lease, “Operating Expenses” and “Additional Pass Through Costs” shall not include and Tenant shall have no liability for the following costs and expenses: (a) costs occasioned by casualties or by the exercise of the power of eminent domain, other than insurance deductibles paid by Landlord; (b) costs incurred to bring the Premises or the Building into compliance with any covenant, condition, restriction, underwriter’s requirement or law applicable to the Premises or the Building as of on the Commencement Date of the Lease; and (c) costs incurred in connection with the presence of any hazardous or toxic material, except (i) to the extent caused by the release or emission of the hazardous or toxic material in question by Tenant or (ii) for any such costs related to general maintenance and repair of the Building.

[Signature page follows.]

 

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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written.

 

 

 

LANDLORD

 

 

3900 SAN CLEMENTE, L.P., a

Texas limited partnership

 

 

By: 3900 San Clemente GP, Inc., its General Partner

Approved:

 

 

 

 

 

By:

 

/s/ Richard E. Anderson

/s/ Richard Paddock

 

 

Name: Richard E. Anderson

Richard Paddock

 

 

Title: President

 

 

TENANT

 

 

BAZAARVOICE, INC., a Delaware corporation

 

 

By:

 

/s/ Stephen Collins

 

 

Name: Stephen Collins

 

 

Title: CFO

 

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EXHIBIT A

FLOOR PLAN FOR 260 EXPANSION SPACE

 

A-1


EXHIBIT B

WORK LETTER

1. Plans .

1.1 Space Plan . Within twenty (20) days after the date of this Amendment, Tenant shall deliver to Landlord a space plan for the 260 Expansion Space prepared by Tenant’s space planner, at Tenant’s expense (subject to reimbursement through the Finish Allowance). Landlord will approve or disapprove in writing the space plan within three (3) business days after receipt from Tenant and if disapproved, Landlord shall provide Tenant and Tenant’s space planner with specific reasons for disapproval. If Landlord fails to approve or disapprove the space plan on or before the end of such three (3) business day period, Landlord shall be deemed to have approved the last submitted space plan. Landlord will not disapprove any element of the space plan that is generally consistent with the improvements and finishes in the Current Premises. The foregoing process shall be repeated until Landlord has approved (which shall include deemed approval) the space plan (such space plan, when


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