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:
(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:
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:
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.
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.
FLOOR PLAN FOR THE EXPANSION SPACE
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