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EXHIBIT 10.10
FOURTH AMENDMENT TO OFFICE LEASE
THIS FOURTH AMENDMENT TO OFFICE LEASE (this "Amendment") is made
and
entered into as of July 15, 2001, by and
between 100 PINE STREET, L.P., a
Delaware limited partnership ("Landlord"),
and ART TECHNOLOGY GROUP, INC., a
Delaware corporation ("Tenant").
RECITALS
A.
Landlord, as successor-in-interest to Pine Street Investors I,
L.L.C., a Delaware limited liability
company, and Tenant have entered into that
certain Office Lease dated as of October 6,
1999 (the "Original Lease"), as
amended by that certain First Amendment to
Lease (the "First Amendment") dated
as of December 30, 1999, that certain
Second Amendment to Office Lease (the
"Second Amendment") dated as of August 28,
2000, and that certain Third
Amendment to Office Lease (the "Third
Amendment") dated as of December 22, 2000
(as so amended, the "Lease"). Unless
otherwise defined herein, capitalized terms
used in this Amendment shall have the
meanings given to such terms in the Lease.
B.
Pursuant to the Original Lease, Landlord leased to Tenant the
entire 21st floor of that certain office
building located at 100 Pine Street,
San Francisco, California (the
"Building").
C.
Pursuant to the Second Amendment, Landlord agreed to lease
Tenant approximately 9,947 rentable square
feet on the 20th floor of the
Building and the entire 25th floor of the
Building (as more particularly
described in the Second Amendment, the
"25th Floor Space").
D.
Pursuant to the Third Amendment, Landlord agreed to lease
Tenant an additional approximately 3,263
rentable square feet on the 20th floor
of the Building, which constitutes Suite
2040 of the Building.
E. The
Target Delivery Date of the 25th Floor Space was June 15,
2001.
F.
Tenant desires to terminate its rights and obligations under
the Lease with respect to the 25th Floor
Space. Landlord has agreed to such
termination upon the satisfaction of the
terms and conditions set forth herein.
NOW, THEREFORE, the parties hereto agree as follows:
1.
Landlord anticipates delivery of possession of the 25th Floor
Space to Tenant on July 1, 2001.
2.
Tenant's rights and obligations under the Lease with respect
to the 25th Floor Space shall terminate as
of the date that all of the following
conditions have been satisfied (which date
is referred to herein as the
"Effective Date"):
(a) Landlord
has entered into a lease amendment with
MWBH&L Leasing Corp., a California
corporation ("Milberg"), in form and
substance satisfactory to Landlord in its
sole and absolute discretion, pursuant
to which Milberg leases the entire 25th
Floor Space from
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Landlord, with a term commencing on or
about November 1, 2001 and expiring
December 31, 2011 (the "Milberg
Amendment").
(b) Landlord
has received from Milberg an additional
unconditional, irrevocable standby letter
of credit in the amount of One Million
Dollars ($1,000,000) in favor Landlord, in
a form satisfactory to Landlord, as
security for Milberg's performance of its
obligations with respect to the 25th
Floor Space under the Milberg
Amendment.
(c)
Concurrently with the execution of this Amendment,
Tenant has paid to Landlord same day funds
in an amount equal to the net present
value of the difference between the Base
Rent payable under the Lease for the
25th Floor Space and the base rent payable
by Milberg under the Milberg
Amendment for the 25th Floor Space,
calculated as of the date Landlord executes
this Amendment, as evidenced by the date
adjacent Landlord's signature to this
Amendment (the "Landlord's Execution Date")
(such amount shall be referred to
herein as the "Early Termination Fee").
Attached as Exhibit A hereto, is a
calculation of the amount of the Early
Termination Fee if Landlord's Execution
Date were July 15, 2001, which fee would be
$1,831,402.00 in accordance with
such calculation. In the event that
Landlord's Execution Date is either before
or after July 15, 2001, the Early
Termination Fee shall be calculated as of that
date, in accordance with the formula used
in the sample calculation set forth in
Exhibit A.
(d) On or
before the Effective Date, Tenant shall have
surrendered possession of the 25th Floor
Space in the same condition it was in
on July 1, 2001.
3.
Upon
the satisfaction of the conditions set forth in Paragraph
2, Tenant shall have no further rights,
including without limitation, the right
to use and occupancy, or obligations,
including without limitation, the
obligation to pay Rent under the Lease with
respect to the 25th Floor Space,
except pursuant to any provisions of the
Lease which expressly survive the
expiration or termination of the Lease.
4. If
any of the conditions precedent listed in Paragraph 2
above, are not satisfied by August 15, 2001
(the "Determination Date"), (i)
Tenant's rights and obligations under the
Lease with respect to the 25th Floor
Space shall not terminate and shall
continue in full force and effect and (ii)
the provisions of this Amendment shall be
void and of no further force or
effect, except for the applicable
provisions of this Paragraph and Paragraphs 5,
6, 12, 13, and 14 below. In the event that
the conditions precedent listed in
Paragraph 2 above, are not satisfied by the
Determination Date, but Tenant has
paid Landlord the Early Termination Fee,
Landlord shall refund Tenant the Early
Termination Fee, together with any interest
accrued thereon between the Landlord
Execution Date and the date on which
Landlord refunds Tenant the Early
Termination Fee.
5. The
parties agree that notwithstanding anything to the
contrary contained in the Lease and
Landlord's delivery of the 25th Floor Space
as of July 1, 2001, Tenant shall not be
required to pay the first month's Base
Rent for the 25th Floor Space, upon such
delivery of the 25th Floor Space.
However, in the event that Tenant's rights
and obligations under the Lease with
respect to the 25th Floor Space are not
terminated, Tenant shall pay any Base
Rent that otherwise would have been payable
pursuant to the terms of the Lease,
within five (5) days following the
Deter
