Exhibit 10.27
SECOND AMENDMENT TO
LEASE
THIS SECOND AMENDMENT TO LEASE (this
“Amendment”) is entered into as of the 8th day of
February, 2010, 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
leases from Landlord approximately 50,798 square feet of Agreed
Rentable Area (the “Current Premises”) known as Suite
300 in that certain 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, which established the Commencement
Date of the Lease as October 12, 2009 and the Expiration Date
of the Lease as January 31, 2015, and by that certain First
Amendment to Lease Agreement dated as of January 19, 2010 (the
Lease Agreement, as amended, the “Lease”);
WHEREAS, pursuant to that certain
letter dated January 20, 2010 from Tenant to Landlord, Tenant
has exercised its Expansion Option contained in Rider 2 to the
Lease to lease additional space containing approximately 26,006
square feet of Agreed Rentable Area located on the second
(2nd) floor of the Building as shown on Exhibit A
attached hereto (the “Expansion Space”); 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 Expansion
Space.
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 Expansion
Space Commencement Date (hereinafter defined), Landlord shall lease
the Expansion Space to Tenant and Tenant shall lease the Expansion
Space from Landlord, and the Premises, as defined in the Lease,
shall mean, collectively, the Current Premises and the Expansion
Space. The Expansion Space shall be subject to all the terms and
conditions of the Lease except as expressly modified herein.
Effective as of the Expansion Space Commencement Date, Item 2
of the Basic Lease Provisions shall be deleted in its entirety and
the following shall be substituted in lieu thereof:
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a.
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Suite #: 300; Floor: the entire
third (3rd) floor; and Suite #: 250; Floor: a portion of the
second (2nd) floor.
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b.
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Agreed Rentable Area: 76,804
square feet.
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(b) As used herein, the
“Expansion Space Commencement Date” shall mean the date
that is the earlier to occur of (i) the date of Substantial
Completion with respect to the 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 (ii) March 12, 2011. Upon
Substantial
Completion of the 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 Expansion Space
without executing the Acceptance of Premises Memorandum, Tenant
shall be deemed to have accepted such 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 Expansion Space Commencement Date,
Exhibit A attached hereto shall be added to and
incorporated into Exhibit A to the Lease.
(c) Landlord agrees to use
reasonable efforts to cause the Tenant’s Improvements (as
defined in Exhibit B attached hereto) with respect to
the Expansion Space to be Substantially Complete within one hundred
twenty (120) days after Landlord’s receipt of
Tenant’s approval of the Construction Plans and Contract Sum
therefor (such date, the “Outside Expansion Space
Commencement Date”). Notwithstanding anything in the Lease or
this Amendment to the contrary, if the Tenant’s Improvements
with respect to the Expansion Space are not Substantially Complete
on or before the Outside Expansion Space Commencement Date, Tenant,
as its sole and exclusive remedy, shall be entitled to a rent
abatement with respect to the Expansion Space of $653.59 for every
day in the period beginning on the Outside Expansion Space
Completion Date and ending on the date the Tenant’s
Improvements with respect to the Expansion Space are Substantially
Complete. Landlord and Tenant acknowledge and agree that:
(x) the determination of the Substantial Completion of the
Expansion Space shall take into consideration the effect of any
Tenant Delay (with respect to the Expansion Space); (y) each
day of Tenant Delay, if any, shall be reduced by the number of days
that Tenant has remaining to fulfill its obligations in
Section 1.3 of the Work Letter (for example, if Tenant submits
construction plans within forty (40) days, then Tenant shall
be credited five (5) days against any Tenant Delays); and
(z) the Outside Expansion Space Completion Date shall be
postponed by the number of days Substantial Completion of the
Expansion Space is delayed due to events of force
majeure.
2. Basic Rent . The schedule
of Basic Rent set forth in Item 3(a) of the Basic Lease
Provisions is hereby deleted in its entirety and the following is
substituted in lieu thereof:
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3.
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a. Basic Rent (See Article 2,
Supplemental Lease Provisions):
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Rate Per Square
Foot of Agreed
Rentable Area
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Basic
Annual
Rent
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Basic
Monthly
Rent
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10/12/09 — 3/11/11
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$
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0.00
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$
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0.00
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$
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0.00
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3/12/11 — 1/31/12
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$
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20.00
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$
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1,536,080.04
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$
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128,006.67
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2/1/12 — 1/31/13
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$
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20.50
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$
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1,574,481.96
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$
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131,206.83
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2/1/13 — 1/31/14
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$
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21.00
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$
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1,612,884.00
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$
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134,407.00
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2/1/14 — 1/31/15
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$
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21.50
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$
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1,651,286.04
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$
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137,607.17
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3. Tenant’s Operating
Expense Stop . Effective as of the Expansion Space Commencement
Date, Item 4 of the Basic Lease Provisions shall be amended in
its entirety to the following:
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4.
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Tenant’s Pro Rata Share
Percentage: 30.5814% (the Agreed Rentable Area of the Premises
divided by the Agreed Rentable Area of the Building, expressed in a
percentage).
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4. Acceptance of Expansion Space . Tenant
acknowledges that Tenant has inspected the Expansion Space and,
except for latent defects discovered and reported to Landlord by
Tenant within 180 days after the Expansion Space Commencement Date
and subject to Landlord’s completion of its obligations under
the Work Letter attached hereto as Exhibit B , Tenant
hereby accepts the Expansion Space (including the suitability of
the Expansion Space for the Permitted Use) for all purposes. By
taking possession of the Expansion Space, Tenant shall be deemed to
have accepted the Expansion Space and agreed that the Expansion
Space is in good order and satisfactory condition, with no
representation or warranty by Landlord as to the condition of the
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 EXPANSION SPACE ON THE EXPANSION SPACE
COMMENCEMENT 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 EXPANSION
SPACE OR ITS APPURTENANCES EXCEPT AS MAY BE CLEARLY AND EXPRESSLY
PROVIDED IN THE LEASE .
5. 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 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
pursuant to a separate written agreement between Landlord and such
broker. 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.
6. Defined Terms . Except as
defined differently herein, all capitalized terms used in this
Amendment shall have the meanings ascribed to them under the
Lease.
7. Authority . Tenant and
each person signing this Amendment on behalf of Tenant represents
to Landlord as follows: (i) Tenant is a duly formed 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.
8. Exhibit . Each exhibit
attached hereto is made a part hereof for all purposes.
9. 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.
10. 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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11. 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.
12. 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.
13. Governing Law . This
Amendment shall be governed by the laws of the State of
Texas.
14. 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.
IN WITNESS WHEREOF, the parties have
executed this Amendment as of the date first above
written.
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LANDLORD
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3900 SAN CLEMENTE, L.P.,
a
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Texas limited
partnership
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By: 3900 San Clemente GP, Inc.,
its General Partner
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Approved:
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By:
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Name: Richard E.
Anderson
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Richard Paddock
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Title: President
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TENANT
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BAZAARVOICE, INC., a Delaware
corporation
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By:
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Name: Kenneth J.
Saunders
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Title: CFO
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EXHIBIT A
FLOOR PLAN FOR THE EXPANSION
SPACE
A-1
EXHIBIT B
WORK LETTER
1. Plans .
1.1 Space Plan . Tenant has
delivered to Landlord a space plan for the Expansion Space prepared
by Tenant’s space planner, at Tenant’s expense (subject
to reimbursement through the Finish Allowance), a copy of which is
attached hereto as Schedule B-1 . 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