Exhibit 10.33


 


AMENDMENT NO. 1 TO OFFICE LEASE


 


This AMENDMENT NO. 1 TO OFFICE LEASE (this
“Amendment”) is dated as of this 20th day of October, 2000 by and between MARRIOTT PLAZA ASSOCIATES L.P., a
California limited partnership (“Landlord”), and COMMERCE ONE, INC., a Delaware corporation
(successor-in-interest to Commercebid.com) (“Tenant”).


 


RECITALS


 


A.            Landlord and
Commercebid.com entered into that certain Office Lease dated August 30, 1999
(the “Lease”) for premises consisting of approximately 10,029 rentable square
feet (the “Original Premises”) with a street address of 2901 Tasman Drive,
Suite 211, Santa Clara, California, and more particularly described in the
Lease;


 


B.            On November 12,
1999, Tenant succeeded to the interest of Commercebid.com as tenant under the
Lease.


 


C.            Landlord has
agreed to (i) lease to Tenant certain additional suites in the Building and
(ii) to grant to Tenant options to lease certain additional suites in the
Building.  Tenant has agreed to lease
certain premises in the Building should Landlord make such premises available
within the time periods described in this Amendment.


 


D.            Landlord and
Tenant desire to amend the Lease on the terms and conditions set forth
herein.  Capitalized terms used in this
Amendment and not otherwise defined shall have the meanings assigned to them in
the Lease.


 


AGREEMENT


 


NOW THEREFORE, for
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Landlord and Tenant hereby agree as follows:


 


1.             Additional Definitions.  The following paragraphs shall be added
to the end of Article 1 of the Lease:


 


1.1          The term “Additional
Suite” shall mean any suite constituting a portion of the Expansion Premises
(defined below).


 


1.2          The term “Expansion
Premises” shall mean Suites 101, 106, 107, and 212 of the Building, which
respectively are comprised of approximately 7,831, 4,547, 5,606 and 8,588
square feet.


 


1.3          The term “First
Option Space” shall mean Suite 205 of the Building, which is comprised of
approximately 8,280 rentable square feet.


 


1.4          The term “Second
Option Space” shall mean Suite 201 of the Building, which is comprised of
approximately 6,191 rentable square feet.


 


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1.5          The term “Must Take
Space” shall mean Suite 220 of the Building, which is comprised of
approximately 2,226 rentable square feet.


 


2.             Premises.  Each Additional Suite, the First Option
Space, the Second Option Space and the Must-Take Space shall be delivered by
Landlord to Tenant in accordance with the provisions in Sections 7, 8, 9 and 10
below, and once so delivered shall be deemed part of the Premises for all
purposes under the Lease.


 


3.             Base Year.  Base Year, as set forth in the Basic Lease
Information, is deleted and replaced with the following:  “Base Year for the Expansion Premises, First
Option Space, Second Option Space and the Must-Take Space shall be calendar
year 2001.  Base Year for the Original
Premises shall be calendar year 1999 until October 1, 2004, when Base Year for
the Original Premises for the remainder of the Lease Term shall be calendar
year 2001.”


 


4.             Lease Term Expiration
Date.  The Term Expiration Date, as
set forth in the Basic Lease Information, is deleted and replaced with the
following: “February 28, 2006.”


 


5.             Security
Deposit.  The Security Deposit set
forth in the Basic Lease Information (“Original Security Deposit”) is hereby
increased to $125,000 (“New Security Deposit”).  The difference between the Original Security Deposit and the New
Security Deposit (consisting of $37,747.70) shall be delivered to Landlord
within five (5) business days after full execution of this Lease.  In addition, Section 5 of the Lease is
amended as follows:


 


5.1          The penultimate
sentence of Section 5 is deleted and replaced with the following: “Tenant
specifically grants to Landlord (and Tenant hereby waives the provisions of
California Civil Code Section 1950.7 to the contrary) a period of sixty (60)
days following a surrender of the Premises by Tenant to Landlord within which
to inspect the Premises, make required restorations and repairs, receive and
verify workmen’s billings therefor, and prepare a final accounting with respect
to the Security Deposit.”


 


5.2          The following is
hereby added to the end of Section 5:


 


Tenant may
deliver to Landlord a clean, unconditional, irrevocable, transferable letter of
credit in lieu of cash for the New Security Deposit (the “Letter of Credit”) in
form and issued by a financial institution (“Issuer”) satisfactory to Landlord
in its sole discretion, substantially in the form attached as Exhibit A.  The Letter of Credit shall permit partial
draws, and provide that draws thereunder will be honored upon presentation by
Landlord.  The Letter of Credit shall
have an expiration period of one (1) year but shall automatically renew by its
terms unless affirmatively cancelled by either Issuer or Tenant, in which case
Issuer must provide Landlord thirty (30) days prior written notice of such
expiration or cancellation.  The Letter
of Credit shall remain in effect until four (4) months after the Lease
Expiration Date.  Any amount drawn under
the Letter of Credit shall be held or used by Landlord in accordance with this
Article 5 of the Lease.  If the Tenant
fails to renew or replace the Letter of Credit as required under this Lease at
least thirty (30) days before its stated expiration date, Landlord may draw
upon the entire amount of the Letter of Credit.  No fees


 


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applicable to
the Letter of Credit shall be charged to Landlord.  In the event Tenant delivers a Letter of Credit to Landlord in
the full amount of the New Security Deposit, Landlord shall return any
unapplied amount of the Original Security Deposit to Tenant within 10 business
days thereafter.


 


6.             Base Rent for
Original Premises.  The following
paragraph is hereby added to the Lease as Paragraph 3(g).


 


6.1          Base Rent for the Original Premises shall
increase to $73,312 ($7.31 per rentable square foot per month) as of October 1,
2004 and to $76,220.40 ($7.60 per rentable square foot per month) as of March
1, 2005.


 


7.             Expansion Premises.  The following paragraphs are hereby added to
the Lease as Paragraphs 46.1 through 46.4.


 


7.1          Suite 101.


 


(a)           Landlord shall
deliver to Tenant Suite 101 on October 1, 2000; provided, however, that if Landlord, for any reason
whatsoever beyond Landlord’s reasonable control, cannot deliver possession of
Suite 101 to Tenant on the date set forth in this Section 7.1, this Lease shall
not be void or voidable as to Suite 101 or any of the Premises, nor shall
Landlord be liable to Tenant for any loss or damage resulting therefrom, but in
that event, rental shall be waived for the period between the commencement of
the applicable term and the time when Landlord can deliver possession.  In the event Tenant occupies any part of
Suite 101 prior to the applicable Commencement Date, Tenant shall commence
paying Base Rent as of such date for Suite 101 or the portion thereof so
occupied.


 


(b)           The lease by
Landlord to Tenant of Suite 101 shall be on the following terms:  (i) the Commencement Date shall be
forty-five (45) days after Suite 101 is delivered to Tenant and (ii) Base Rent
shall be $48,943.75 per month and shall be increased pursuant to Section 12 below.


 


7.2          Suite 106.


 


(a)           Landlord shall
deliver to Tenant Suite 106 thirty (30) days after the date of this Amendment; provided, however, that if Landlord, for
any reason whatsoever beyond Landlord’s reasonable control, cannot deliver
possession of Suite 106 to Tenant on the date set forth in this Section 7.2,
this Lease shall not be void or voidable as to Suite 106 or any of the
Premises, nor shall Landlord be liable to Tenant for any loss or damage
resulting therefrom, but in that event, rental shall be waived for the period
between the commencement of the applicable term and the time when Landlord can
deliver possession.  In the event Tenant
occupies any part of Suite 101 prior to the applicable Commencement Date,
Tenant shall commence paying Base Rent as of such date for Suite 106 or the
portion thereof so occupied.


 


(b)           The lease by
Landlord to Tenant of Suite 106 shall be on the following terms: (i) the
Commencement Date shall be forty-five (45) days after Suite 106 is delivered to
Tenant and (ii) Base Rent shall be $28,418.75 per month and shall be increased
pursuant to Section 12 below.


 


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7.3          Suite
107.


 


(a)           Landlord shall deliver to Tenant
Suite 107 on February 1, 2001; provided,
however, that if Landlord, for any reason whatsoever beyond Landlord’s
reasonable control, cannot deliver possession of Suite 107 to Tenant on the
date set forth in this Section 7.3, this Lease shall not be void or voidable as
to Suite 107 or any of the Premises, nor shall Landlord be liable to Tenant for
any loss or damage resulting therefrom, but in that event, rental shall be
waived for the period between the commencement of the applicable term and the
time when Landlord can deliver possession. 
In the event Landlord is unable to deliver possession of Suite 107 by
June 1, 2001, Tenant shall have the right to terminate its obligation to lease
Suite 107 by written notice to Landlord given no later than June 10, 2001.  In the event Tenant occupies any part of
Suite 107 prior to the applicable Commencement Date, Tenant shall commence
paying Base Rent as of such date for Suite 107 or the portion thereof so
occupied.


 


(b)           The
lease by Landlord to Tenant of Suite 107 shall be on the following terms:  (i) the Commencement Date shall be
forty-five (45) days after Suite 107 is delivered to Tenant and (ii) Base Rent
shall be $35,037.50 per month and shall be increased pursuant to Section 12
below.


 


7.4          Suite
212.


 


(a)           Landlord shall deliver to Tenant
Suite 212 on February 1, 2001; provided,
however, that if Landlord, for any reason whatsoever beyond
Landlord’s reasonable control, cannot deliver possession of Suite 212 to Tenant
on the date set forth in this Section 7.4, this Lease shall not be void or
voidable as to Suite 212 or any of the Premises, nor shall Landlord be liable to
Tenant for any loss or damage resulting therefrom, but in that event, rental
shall be waived for the period between the commencement of the applicable term
and the time when Landlord can deliver possession.  In the event Tenant occupies any part of Suite 212 prior to the
applicable Commencement Date, Tenant shall commence paying Base Rent as of such
date for Suite 212 or the portion thereof so occupied.


 


(b)           The
lease by Landlord to Tenant of Suite 212 shall be on the following terms:  (i) the Commencement Date shall be
forty-five (45) days after Suite 212 is delivered to Tenant and (ii) Base Rent
shall be $53,675 per month and shall be increased pursuant to Section 12 below.


 


8.             First
Option Space.  The
following paragraphs are hereby added to the Lease as Paragraphs 47.1 and 47.2.


 


8.1          So
long as Tenant (or a permitted or approved assignee or sublessee) is the Tenant
hereunder as of its exercise of the expansion option granted herein, and
subject to the conditions set forth below, Tenant shall have one option to
lease from Landlord (the “First Expansion Option”) the First Option Space,
subject to the following conditions:


 


(a)           The First Expansion Option shall be
exercised, if at all, by written notice of exercise given to Landlord by Tenant
no later than March 15, 2001;


 


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(b)           Notwithstanding anything to the
contrary contained herein, if Tenant is in default under any of the material
terms, covenants or conditions of this Lease at the time Tenant exercises the
First Expansion Option, Landlord shall have, in addition to all of Landlord’s
other rights and remedies provided in this Lease, the right to terminate such
First Expansion Option upon notice to Tenant.


 


8.2          In the event the First Expansion
Option is exercised in a timely fashion, Landlord and Tenant shall enter into
an amendment to the Lease, which amendment shall be upon all of the terms and
conditions of the Lease, including, without limitation, a term expiring on the
Term Expiration Date, first month’s prepaid rent, forty-five (45) day early
delivery date prior to rent and lease commencement, and options to extend; provided, however, that (i) the Base Rent
for the First Option Space shall be $53,820 ($6.50 per rentable square foot per
month) subject to the rental increases set forth in Section 12 below, and (ii)
the lease term shall commence forty-five (45) days after the delivery date,
which delivery date shall be July 17, 2001; provided,
however, that if Landlord, for any reason whatsoever beyond Landlord’s
reasonable control, cannot deliver possession of the First Option Space to
Tenant on the date set forth in this Section 8.2, this Lease shall not be void
or voidable as to the First Option Space or any of the Premises, nor shall
Landlord be liable to Tenant for any loss or damage resulting therefrom, but in
that event, rental shall be waived for the period between the commencement of
the applicable term and the time when Landlord can deliver possession.  In the event Tenant occupies any part of First
Option Space prior to the applicable Commencement Date, Tenant shall commence
paying Base Rent as of such date for the First Option Space or the portion
thereof so occupied.


 


9.             Second
Option Space. 
The following paragraphs are hereby added to the Lease as Paragraphs
48.1 and 48.2.


 


9.1          So
long as Tenant (or a permitted or approved assignee or sublessee) is the Tenant
hereunder as of its exercise of the option granted herein, and subject to the
conditions set forth below, Tenant shall have one option to lease from Landlord
(the “Second Expansion Option”) the Second Option Space, subject to the
following conditions:


 


(a)           Tenant
shall have exercised the Second Expansion Option by written notice of exercise
given to Landlord by Tenant no later than October 31, 2001.


 


(b)           Notwithstanding
anything to the contrary contained herein, if Tenant is in default under any of
the material terms, covenants or conditions of this Lease at the time Tenant
exercises the Second Expansion Option, Landlord shall have, in addition to all
of Landlord’s other rights and remedies provided in this Lease, the right to
terminate such Second Expansion Option upon notice to Tenant.


 


9.2          In the event the Second Expansion
Option is exercised in a timely fashion, Landlord and Tenant shall enter into
an amendment to the Lease, which amendment shall be upon all of the terms and
conditions of the Lease including, without limitation, a term expiring on the
Term Expiration Date, first month’s prepaid rent, forty-five (45) day early
delivery date prior to rent and lease commencement, and options to extend; provided, however, that (i) the Base Rent
for the Second Option Space shall be $41,789.25 ($6.75 per rentable square foot
per


 


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month), subject to the rental
increases set forth in Section 12 below, and (ii) the lease term shall commence
forty-five (45) days after the delivery date, which delivery date shall be
March 1, 2002; provided, however,
that if Landlord, for any reason whatsoever beyond Landlord’s reasonable
control, cannot deliver possession of the Second Option Space to Tenant on the
date set forth in this Section 9.2, this Lease shall not be void or voidable as
to the Second Option Space or any of the Premises, nor shall Landlord be liable
to Tenant for any loss or damage resulting therefrom, but in that event, rental
shall be waived for the period between the commencement of the applicable term
and the time when Landlord can deliver possession.  In the event Tenant occupies any part of Second Option Space
prior to the applicable Commencement Date, Tenant shall commence paying Base
Rent as of such date for the Second Option Space or the portion thereof so
occupied.


 


10.          Must-Take
Space.  The
following paragraph shall be added to the Lease as Paragraph 49.


 


10.1        Landlord
shall have the right to deliver to Tenant the Must-Take Space within twelve
(12) months of delivery of possession to Tenant of Suite 212, provided Landlord
gives Tenant 45 days prior written notice, and, if so delivered, Tenant shall
be obligated to lease the Must-Take Space from Landlord.  In the event the Must-Take Space is
delivered in a timely fashion, Landlord and Tenant shall enter into an
amendment to the Lease, which amendment shall be upon all of the terms and conditions
of this Lease including, without limitation, a term expiring on the Lease Term
Expiration Date, first month’s prepaid rent, forty-five (45) day early delivery
date prior to rent and lease commencement, and options to extend; provided, however, that (i) the Base Rent
for the Must-Take Space shall be the greater of (a) $6.25 per rentable square
foot per month or (b) the Base Rent then payable for Suite 212, subject to the
rental increases set forth in Section 12 below, and (ii) the lease term shall commence
forty-five (45) days after the delivery date.


 


11.          Condition
of Premises. 
The following paragraph is hereby added to the Lease as Paragraph 50.


 


11.1        Tenant hereby acknowledges that Tenant
has inspected each of the Additional Suites, the First Option Space, the Second
Option Space and the Must-Take Space and that Landlord shall deliver each such
suite or space and all Building or operating systems to Tenant (and Tenant
hereby accepts them) in their then “AS IS” condition, with all faults, subject to
Landlord’s maintenance and repair obligations under Section 18 (a) of the
Lease.  Landlord makes no
representations or warranties to Tenant regarding the condition of the
Additional Suites, the First Option Space, the Second Option Space or the
Must-Take Space.


 


12.          Rent
Increases.  The
following paragraph is hereby added to the Lease as Paragraph 51.


 


12.1        Base Rent for each Additional Suite, the
First Option Space (if the First Expansion Option is exercised by Tenant), and
the Must-Take Space (if commencing prior to March 1, 2002) shall be increased
by four percent (4%) on March 1, 2002 and each March 1st thereafter
until the expiration or earlier termination of the Lease.  Base Rent for the Second Option Space (if
the Second Expansion Option is exercised by Tenant) and the Must-Take Space


 


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(if commencing on or after
March 1, 2002) shall be increased by four percent (4%) on March 1, 2003 and
each March 1st thereafter until the expiration or earlier termination
of the Lease.


 


13.          Option
to Extend Term: 
The following paragraphs are hereby added to the Lease as Paragraphs
52.1 through 52.4.


 


13.1        So
long as Tenant (or a permitted assignee or sublessee) is the Tenant hereunder,
Tenant shall have one option to extend the term of this Lease with respect to
the entirety of the Premises then subject to the Lease for a period of three
(3) years from the Lease Term Expiration Date (the “Extension Period”), subject
to the following conditions:


 


(a)           The option to extend shall be
exercised, if at all, by written notice of exercise given to Landlord by Tenant
not more than twelve (12) months nor less than nine (9) months prior to the
Term Expiration Date;


 


(b)           Anything herein to the contrary
notwithstanding, if Tenant is in default under any of the material terms,
covenants or conditions of the Lease, either at the time Tenant exercises
either extension option or on the commencement date of the Extension Period
then Landlord shall have, in addition to all of Landlord’s other rights and
remedies provided in this Lease, the right to terminate such option to extend
upon notice to Tenant.


 


13.2        In the event the applicable option is
exercised in a timely fashion, the Lease shall be extended for the term of the
applicable extension period upon all of the terms and conditions of this Lease,
provided that the Base Rent for the Extension Period shall be the “Fair Market
Rent” for the Premises, determined as set forth below, with annual increases as
determined as part of the process set forth below.


 


13.3        Within thirty (30) days after receipt of
Tenant’s notice of exercise, Landlord shall notify Tenant in writing of
Landlord’s good faith estimate of the Base Rent for the first year of the
applicable extension period, and Landlord’s estimate of annual increases, if
any.  For purposes hereof, “Fair Market
Rent” shall mean collectively, (1) Base Rent for the first year of the
Extension Period and (2) the annual increases determined at the time Base Rent
for the first year is determined.  Within
thirty (30) days after receipt of such notice from Landlord, Tenant shall have
the right either to (i) accept Landlord’s estimate of Fair Market Rent or (ii)
elect to arbitrate Landlord’s estimate of Fair Market Rent, such arbitration to
be conducted pursuant to the provisions hereof.  Failure on the part of Tenant to require arbitration of Fair
Market Rent within such thirty (30) day period shall constitute acceptance of
the Fair Market Rent for the Extension Period as calculated by Landlord.  If Tenant elects arbitration, the
arbitration shall be concluded within ninety (90) days after the date of
Tenant’s election, subject to extension for an additional thirty (30) day
period if a third arbitrator is required and does not act in a timely manner.  To the extent that arbitration has not been
completed prior to the expiration of any preceding period for which Base Rent
has been determined, Tenant shall pay Base Rent at the rate calculated by
Landlord, with the potential for an adjustment to be made once Fair Market Rent
is ultimately determined by arbitration.


 


13.4        In the event of arbitration, the
judgment or the award rendered in any such arbitration may be entered in any
court having jurisdiction and shall be final and binding


 


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between the parties. The
arbitration shall be conducted and determined in the County of Santa Clara in
accordance with the then prevailing rules of the American Arbitration
Association or its successor for arbitration of commercial disputes except to
the extent that the procedures mandated by such rules shall be modified as
follows:


 


(a)           Tenant
shall make demand for arbitration in writing within thirty (30) days after
service of Landlord’s determination of Fair Market Rent given under Section
13.3 above, specifying therein the name and address of the person to act as the
arbitrator on its behalf. The arbitrator shall be qualified as a real estate
appraiser familiar with the Fair Market Rent of similar office space in the
Silicon Valley area who would qualify as an expert witness over objection to
give opinion testimony addressed to the issue in a court of competent
jurisdiction. Failure on the part of Tenant to make a proper demand in a timely
manner for such arbitration shall constitute a waiver of the right thereto.
Within fifteen (15) days after the service of the demand for arbitration,
Landlord shall give notice to Tenant, specifying the name and address of the
person designated by Landlord to act as arbitrator on its behalf who shall be
similarly qualified. If Landlord fails to notify Tenant of the appointment of
its arbitrator, within or by the time above specified, then the arbitrator
appointed by Tenant shall be the arbitrator to determine the issue.


 


(b)           In
the event that two arbitrators are chosen pursuant to Section 13.4(a) above,
the arbitrators so chosen shall, within fifteen (15) days after the second
arbitrator is appointed determine the Fair Market Rent.  If the two arbitrators shall be unable to
agree upon a determination of Fair Market Rent within such fifteen (15) day
period, they, themselves, shall appoint a third arbitrator, who shall be a
competent and impartial person with qualifications similar to those required of
the first two arbitrators pursuant to Section 13.4(a). In the event they are
unable to agree upon such appointment within seven (7) days after expiration of
such fifteen (15) day period, the third arbitrator shall be selected by the
parties themselves, if they can agree thereon, within a further period of
fifteen (15) days. If the parties do not so agree, then either party, on behalf
of both, may request appointment of such a qualified person by the then Chief
Judge of the United States District Court having jurisdiction over the County
of Santa Clara, acting in his private and not in his official capacity, and the
other party shall not raise any question as to such Judge’s full power and
jurisdiction to entertain the application for and make the appointment. The
three arbitrators shall decide the dispute if it has not previously been
resolved by following the procedure set forth below.


 


(c)           Where
an issue cannot be resolved by agreement between the two arbitrators selected
by Landlord and Tenant or settlement between the parties during the course of arbitration,
the issue shall be resolved by the three arbitrators within fifteen (15) days
of the appointment of the third arbitrator in accordance with the following
procedure.  The arbitrator selected by
each of the parties shall state in writing his determination of the Fair Market
Rent supported by the reasons therefor with counterpart copies to each
party.  The arbitrators shall arrange
for a simultaneous exchange of such proposed resolutions. The role of the third
arbitrator shall be to select which of the two proposed resolutions most
closely approximates his determination of Fair Market Rent. The third
arbitrator shall have no right to propose a middle ground or any modification
of either of the two proposed resolutions. The resolution he chooses as most
closely approximating his determination shall constitute the decision of the
arbitrators and be final and binding upon the parties.


 


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(d)           In
the event of a failure, refusal or inability of any arbitrator to act, his
successor shall be appointed by him, but in the case of the third arbitrator,
his successor shall be appointed in the same manner as provided for appointment
of the third arbitrator.  The arbitrators
shall decide the issue within fifteen (15) days after the appointment of the
third arbitrator.  Any decision in which
the arbitrator appointed by Landlord and the arbitrator appointed by Tenant
concur shall be binding and conclusive upon the parties.  Each party shall pay the fee and expenses of
its respective arbitrator and both shall share the fee and expenses of the
third arbitrator, if any, and the attorneys’ fees and expenses of counsel for
the respective parties and of witnesses shall be paid by the respective party
engaging such counsel or calling such witnesses.


 


(e)           The
arbitrators shall have the right to consult experts and competent authorities
to obtain factual information or evidence pertaining to a determination of Fair
Market Rent, but any such consultation shall be made in the presence of both
parties with full right on their part to cross-examine.  The arbitrators shall render their decision
and award in writing with counterpart copies to each party.  The arbitrators shall have no power to
modify the provisions of this Lease.


 


14.          Tenant
Improvements. The following paragraph is hereby added
to the Lease as Paragraph 53.


 


14.1        Tenant
shall, pursuant to the work letter attached to this Lease as Exhibit B
and made a part hereof (the “Work Letter”), perform the work and make the installations
in the Premises substantially as set forth in the Work Letter (such work and
installations to be performed or made by Tenant hereinafter referred to as the
“Improvement Work”). Tenant agrees that in performing the Improvement Work,
Tenant shall utilize the improvements and specifications described on Exhibit
C attached hereto (the “Standard Tenant Improvements”).


 


15.          Parking.
“Parking” as set forth in the Basic Lease Information shall be deleted and
replaced with the following: “Non-exclusive unassigned parking at a ratio of
3.2 spaces per 1,000 rentable square feet comprising the Premises at any given
time. Other than maintenance and repair costs included in Operating Expenses,
Tenant shall not be charged for use of the parking spaces.”


 


16.          Rental.
The following is hereby added to the end of the third sentence of Section 3(d):
“provided, however, that once but
only once in any twelve (12) month period during the Term, Tenant shall be
entitled to written notice of non-receipt of Base Rent from Landlord, and
Tenant shall not be liable for any late charge hereunder if such installment of
Base Rent is received by Landlord within five (5) days after Tenant’s receipt
of such notice from Landlord.”


 


17.          Alterations.
The following is hereby added to the end of Section 14(b) of the Lease:
“Notwithstanding the foregoing, in the event Tenant requests Landlord’s consent
to an alteration or modification to the Premises and includes in such written
request a provision in ALL CAPITALS BOLD FACE
TYPE for permission to leave such alteration or modification at the
expiration of the Term, Landlord’s consent (if given) shall indicate whether
the Tenant may leave the proposed alteration or modification in the Premises at
the expiration of the Term. Such determination shall be made in Landlord’s sole
discretion. Failure of Landlord to provide


 


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such an indication shall be
deemed an election of the Landlord to require removal. In the event the
Landlord indicates that the alteration or modification may remain in the
Premises at the expiration of the Term, Tenant shall not be required to remove
such alteration or modification, notwithstanding anything in Section 7 of the
Lease to the contrary.”


 


18.          Signage.
Section 14(d) of the Lease is hereby deleted and replaced with the following:
“So long as Tenant is in occupancy of at least the Original Premises and
subject to space availability, Tenant at its sole cost and expense, shall have
the right to install a business identification sign on the concrete monument
sign for the Building in approximate proportion to Tenant’s share of the
Building. Any such sign shall be subject to Landlord’s prior written consent as
to design, location and materials.”


 


19.          Notices.
The Lease is amended to provide that all notices to Tenant shall be sent to:


 


4440 Rosewood
Drive


Pleasanton,
California 94588


Attention:
General Counsel


 


with a copy
to:


 


4440 Rosewood
Drive


Pleasanton,
California 94588


Attention:
Director of Real Estate


 


20.          Events
of Default. The following is added to the end of
Section 23(a)(i): “provided that
Tenant shall be entitled to receive written notice of late payment one time
during each year of the Term, and with respect to that one late payment, Tenant
shall not be in default under this Section 23 unless Tenant has failed to make
the required payment within three (3) days after such notice from Landlord.
After the notice has been given, Landlord shall not be required to provide any
further notices to Tenant. Each such notice shall be concurrent with, and not
in addition to, any notice required by applicable laws.”


 


21.          Assignment
and Subletting. Section 24 is hereby amended as
follows:


 


21.1        Section
24(a)(iii) is deleted in its entirety and replaced with the following: “in
Landlord’s reasonable judgment, the financial worth of the proposed assignee
does not meet the reasonable credit standards applied by Landlord;”


 


21.2        Section
24(viii) is deleted in its entirety and replaced with the following: “the
proposed assignee or sublessee is, as of the date of this Lease, a tenant in
the Building and Landlord does not have space in the Building available for
Lease;”


 


21.3        Section
24(a)(xi) is hereby deleted in its entirety.


 


22.          Ratification.
The Lease, as amended by this Amendment, is hereby ratified by Landlord and
Tenant and Landlord and Tenant hereby agree that the Lease, as so amended,
shall continue in full force and effect.


 


10

















 


23.          Miscellaneous.


 


23.1        Voluntary
Agreement. The parties have read this Amendment and on
the advice of counsel they have freely and voluntarily entered into this
Amendment.


 


23.2        Attorneys’
Fees. If either party commences an action against the
other party arising out of or in connection with this Amendment, the prevailing
party shall be entitled to recover from the losing party reasonable attorneys’
fees and costs of suit.


 


23.3        Successors.
This Amendment shall be binding on and inure to the benefit of the parties and
their successors.


 


23.4        Counterparts.
This Amendment may be signed in two (2) or more counterparts. When at least one
such counterpart has been signed by each party, this Amendment shall be deemed
to have been fully executed, each counterpart shall be deemed to be an
original, and all counterparts shall be deemed to be one and the same
agreement.


 


11

















 


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


 


	
   

  	
  LANDLORD:

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  MARRIOTT PLAZA ASSOCIATES L.P.,
a California limited partnership

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Menlo
  Equities Associates IV LLC,

  
	
   

  	
   

  	
  a California
  limited liability company

  
	
   

  	
   

  	
  Its General
  Partner

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Menlo
  Equities LLC,

  
	
   

  	
   

  	
   

  	
  a California
  limited liability company

  
	
   

  	
   

  	
   

  	
  Its Manager

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  Diamant
  Investments LLC,

  
	
   

  	
   

  	
   

  	
   

  	
  a Delaware
  limited liability company

  
	
   

  	
   

  	
   

  	
   

  	
  Its Member

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Richard
  J. Holmstrom

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Richard J.
  Holmstrom, Manager

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  TENANT:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  COMMERCE ONE, INC.,

  
	
   

  	
  a Delaware
  corporation

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert
  M. Torkoff

  	
   

  
	
   

  	
  Print Name:

  	
  Robert M.
  Torkoff

  	
   

  
	
   

  	
  Its:

  	
  Senior Vice
  President Corporate Development and General Counsel

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  /s/ Charles
  D. Boynton

  	
   

  
	
   

  	
  Print Name:

  	
  Charles D.
  Boynton

  	
   

  
	
   

  	
  Its:

  	
  Director of
  Financial Planning and Analysis

  	
   

  
											



 


12

















 


EXHIBIT A


 


FORM OF LETTER OF CREDIT


 


Date:
                                        ,
2000


Irrevocable Standby Letter of
Credit Number:
                                     


 


	
  Beneficiary:

  	
   

  	
  Applicant:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Amount:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  USD $

  	
   

  
	
   

  	
   

  	
  (

  	
   

  	
  )

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Expiration: 

  	
   

  
								



 


We hereby establish our
Irrevocable Standby Letter of Credit No.
                         
in your favor for the account of                                      ,
                                      ,
on behalf of                                                                                ,
available for drawings for up to an aggregate amount of U.S. $
                      (                    ).  This Letter of Credit is available by
payment upon your draft drawn at sight on us, submitted at the office of
               ,
Attention: Letter of Credit Services, and expires at our close of business on
the expiration date or any automatically extended expiration date as
hereinafter set forth.


 


This Letter of Credit shall
expire on
                                            ,
but such expiration date shall be automatically extended for a period of one
(1) year on
                                     
and on each successive expiration date, unless at least sixty (60) days before
the current expiration date we notify you by overnight courier that this Letter
of Credit is not extended beyond the current expiration date.  In the event you are so notified, any unused
portion of the Letter of Credit shall be available upon presentation of a sight
draft by
                                
within the current expiration date.


 


We give our undertaking to the
Beneficiary that sums drawn under and in compliance with the terms of this
Letter of Credit will be duly honored by our bank on presentation of drawings
in accordance with the terms of this credit.


 


13

















 


This Letter of Credit is
transferable by the Beneficiary. 
Transfer of this Letter of Credit is subject to our consent and receipt
of Beneficiary’s instructions in the form attached hereto as Exhibit A
accompanied by the original Letter of Credit and amendment(s) if any.


 


This Letter of Credit is
subject to the Uniform Customs and Practices for Documentary Credits (1993
Revision) International Chamber of Commerce Publication No. 500 and engages us
to the terms herein.


 


	
   

  	
  Yours very
  truly,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Authorized
  Signature

  
	
   

  	
  Letter of
  Credit Services

  
	
   

  	
  (_____)_____________

  



 


14

















 


EXHIBIT A


 


	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  



Attention: Letter of Credit
Services


 


Re: Irrevocable Letter of Credit No.
                            


 


Dear Sirs:


 


The
undersigned acknowledges receipt of your advice No.
                                 
of a credit issued in our favor, the terms of which are satisfactory.  We now return the original advice of the
said credit with all amendments and extensions, if any, and hereby irrevocably
transfer the said credit and all amendments and extensions thereof, if any, to:


 


	
   

  	
  _______________________________________

  	
   

  
	
   

  	
  [Name of Transferee]

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  _______________________________________

  	
   

  
	
   

  	
  [Address]

  	
   

  



 


You are to
inform the transferee of this transfer and such transferee shall have sole
rights as beneficiary under the credit, including any amendments, extension or
increases thereof, without notice to or further assent from us.


 


 


	
   

  	
  Yours very
  truly,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  (The above
  signature with title as stated with 

  
	
   

  	
  that on file
  with us and is authorized for

  
	
   

  	
  execution of
  this instrument.)

  
	
   

  	
   

  
	
   

  	
  __________________________________________________

  
	
   

  	
  (Bank)

  



 


15

















 


EXHIBIT B


 


WORK LETTER


 


THIS WORK LETTER,
dated October 20, 2000, is entered into by and between MARRIOTT PLAZA ASSOCIATES L.P., a
California limited partnership (“Landlord”) and COMMERCE ONE, INC., a Delaware corporation (“Tenant”).  On or about the date hereof, Landlord and
Tenant entered into that certain Amendment No. 1 to Lease, which amended that
certain Office Lease dated August 30, 1999 (as amended, the “Lease”) for the
Premises, as defined in the Lease.  This
Work Letter sets forth the agreement of Landlord and Tenant with respect to the
improvements to be constructed in the Premises.  In the event of any inconsistency between the terms of this Work
Letter and the terms of the Lease, the terms of the Lease shall control.  All defined terms used herein shall have the
meanings set forth in the Lease, unless otherwise defined in this Work Letter.


 


1.             Improvement Work.  Tenant shall construct, furnish or install
all improvements, equipment or fixtures, that are necessary for Tenant’s use
and occupancy of the entirety of the Premises (the “Improvement Work”).  Tenant shall also be responsible for the
cost of any alterations to the Building required as a result of the Improvement
Work.  The Improvement Work shall be in
conformity with drawings and specifications submitted to and approved by
Landlord and shall be performed in accordance with the following provisions:


 


(a)                                                  Tenant shall
prepare and submit to Landlord for its approval two sets of fully dimensioned
scale drawings (suitable for submission with a building permit application) for
the Improvement Work (including plans, elevations, critical sections and
details) and a specification of Tenant’s utility requirements.  Tenant shall cause all drawings and
specifications for the Improvement Work to be prepared by licensed architects
and where appropriate, mechanical, electrical and structural engineers.


 


(b)                                                  Within 5 days after receipt of Tenant’s
drawings Landlord shall return one set of prints thereof with Landlord’s
approval and/or suggested modifications noted thereon.  If Landlord has approved Tenant’s drawings
subject to modifications, such modifications shall be deemed to be acceptable
to and approved by Tenant unless Tenant shall prepare and resubmit revised
drawings for further consideration by Landlord.  If Landlord has suggested modifications without approving
Tenant’s drawings Tenant shall prepare and resubmit revised drawings within
seven days for consideration by Landlord. 
All revised drawings shall be submitted, with changes highlighted, to
Landlord within seven days following Landlord’s return to Tenant of the
drawings originally submitted, and Landlord shall approve or disapprove such
revised drawings within seven days following receipt of the same.


 


(c)                                                  Tenant shall obtain all building and
other permits necessary in connection with the Improvement Work prior to the
commencement of such work.  The
Improvement Work shall (i) be constructed in compliance with all of the terms


 


16

















 


and conditions
of the Lease and with all applicable laws and regulations, (ii) not involve
changes to structural components of the Building nor involve any floor, roof,
or wall penetrations unless approved by Landlord, and (iii) not require any
material modifications of the Building’s mechanical or electrical systems
unless approved by Landlord.


 


(d)                                                  Prior to commencing construction,
Tenant shall deliver to Landlord the following:


 


1.                                       The
address of Tenant’s general contractor, and the names of the primary
subcontractors Tenant’s contractor intends to engage for the construction of
the Premises.


 


2.                                       The
actual commencement date of construction and the estimated date of completion
of the work, including fixturization.


 


3.                                       Evidence
of insurance as called for hereinbelow.


 


4.                                       An
executed copy of the applicable building permit for such work.


 


(e)                                                  After final approval of Tenant’s
drawings by Landlord, Tenant shall proceed promptly to commence performance of
the Improvement Work.  Tenant’s
contractors and subcontractors shall be acceptable to and approved in writing
by Landlord, which approval shall not be unreasonably withheld or delayed, and
shall, at Landlord’s option, be subject to administrative supervision by
Landlord in their use of the Building. 
Tenant shall furnish to Landlord a copy of the executed contract between
Tenant and Tenant’s general contractor covering all of Tenant’s obligations
under this Work Letter.  Tenant shall
use commercially reasonable efforts to cause such work to be performed in as
efficient a manner as is commercially reasonable.  Tenant shall reimburse Landlord on demand for the cost of repairing
any damage to the Building caused by Tenant or its contractors during
performance of the Improvement Work. 
Tenant’s contractors shall conduct their work and employ labor in such
manner as to maintain harmonious labor relations.  Tenant’s general contractor (“Contractor”) shall obtain a
builder’s risk policy of insurance in an amount and form and issued by a
carrier reasonably satisfactory to Landlord, and Tenant’s general contractor
and subcontractors shall carry worker’s compensation insurance for their
employees as required by law.  The
builder’s risk policy of insurance shall name Landlord as an additional insured
and shall not be cancelable without at least 30 days’ prior written notice to
Landlord.


 


(f)                                                    Any changes in the Improvement Work from
the final drawings approved by Landlord shall be subject to Landlord’s prior
written approval, which shall not be unreasonably withheld.  Any material deviation in construction from
the design specifications and criteria set forth herein or from Tenant’s plans
and specifications as approved by Landlord shall constitute a default for which
Landlord may, within ten (10) days after giving written notice to Tenant, elect
to


 


17

















 


exercise the
remedies available in the event of default under the provisions of this Lease,
unless such default is cured within such ten (10) day period, or, if the cure
reasonably requires more than ten (10) days, unless such default is cured as
soon as reasonably practicable but in no event later than thirty (30) days
after Landlord’s notice to Tenant.  Only
new materials shall be used in the construction of the Improvement Work, except
with the written consent of Landlord.


 


(g)                                                 During the construction of the
Improvement Work, Tenant shall provide and pay for temporary connections for
all utilities brought to the Building. 
Trash removal will be done continually at Tenant’s sole cost and
expense.  No trash, or other debris, or
other waste may be deposited at any time outside the Building.  If so, Landlord may remove it at Tenant’s
expense, which expense shall equal the cost of removal plus twenty-five percent
(25%) of such costs as a management fee.


 


(h)                                                 Storage of Tenant’s contractors’
construction materials, tools and equipment shall be confined within the
Building, and in no event shall any materials or debris be stored outside of
the Building.


 


(i)                                                    Tenant acknowledges that it has engaged
its architects and shall be solely responsible for the actions and omissions of
its architects and for any loss, liability, claim, cost, damage or expense
suffered by Landlord or any other entity or person as a result of the acts or
omissions of its architects or for delays caused by its architects.  Landlord’s approval of any of Tenant’s
architects or engineers and of any documents prepared by any of them shall not
be for the benefit of Tenant or any third party, and Landlord shall have no
duty to Tenant or to any third parties for the actions or omissions of Tenant’s
architects or engineers.  Tenant shall
indemnify and hold harmless Landlord against any and all losses, costs,
damages, claims and liabilities arising from the actions or omissions of
Tenant’s architects and engineers.


 


(j)                                                    Landlord shall have the right to post
in a conspicuous location on the Building or the Premises, as well as record
with the County of Santa Clara, a Notice of Nonresponsibility.


 


(k)                                                Without limiting the generality of the
foregoing, any work to be performed outside of the Building shall be
coordinated with Landlord, and shall be subject to reasonable scheduling
requirements of Landlord.


 


(l)                                                    Tenant shall, upon completion of its
work, submit to Landlord two (2) complete sets of plans (one (1) reproducible)
and specifications covering all of the Improvement Work, including
architectural, electrical, and plumbing, as built.


 


2.                                      Payment
of Costs of the Improvement Work.


 


(a)                                                  Unless specified otherwise herein,
Tenant shall bear and pay the cost of the Improvement Work (which cost shall
include, without limitation, the costs of construction, the cost of permits and
permit expediting, and all architectural and


 


18

















 


engineering
services obtained by Landlord in connection with the Tenant Improvements, the
Contractor’s fees, and any Property Maintenance Costs from the date of this
Work Letter until the Lease Commencement Date), provided that so long as Tenant
in not in default under the Lease, Landlord shall contribute a maximum of $5.00
per square foot (the “Improvement Allowance”). 
Landlord shall pay the Improvement Allowance to Tenant in accordance
with Paragraph 3 below (which amount shall not exceed $5.00 per square foot for
the applicable space under construction).


 


(b)                                                  The Improvement Allowance shall be
utilized only for carpeting and painting the Premises, and not for other
improvements to the Premises or Building, signage, furniture costs, any third
party consulting or contracting fees (except for Tenant’s architect’s fees),
any telecom/cabling costs, or any other purpose.  Tenant shall bear and pay the cost of the Improvement Work
(including but not limited to all of the foregoing fees and costs) in excess of
the Improvement Allowance, if any.


 


3.             Evidence
of Completion of Improvement Work. 
Upon the completion of the Improvement Work, Tenant shall submit to
Landlord:


 


(a)                                                  A detailed breakdown of Tenant’s final
and total construction costs, together with receipted evidence showing payment
thereof, satisfactory to Landlord.


 


(b)                                                  All evidence reasonably available from
governmental authorities showing compliance with any and all other laws, orders
and regulations of any and all governmental authorities having jurisdiction
over the Building, including, without limitation, authorization for physical
occupancy of the Building.


 


(c)                                                  The as-built plans and specifications
of all Improvement Work.


 


(d)                                                  A Contractor’s certification as
follows:


 


“There are no
known mechanics’ or materialmen’s liens outstanding at the date of this
application for payment, all due and payable bills with respect to the Building
have been paid to date or shall be paid from the proceeds of this application
for payment, and there is no known basis for the filing of any mechanics’ or
materialmen’s liens against the Building or the Property, and, to the best of
our knowledge, waivers from all subcontractors are valid and constitute an
effective waiver of lien under applicable law to the extent of payments that
have been made or shall be made concurrently herewith.”


 


(e)                                                  Fully executed unconditional lien releases
in the form prescribed by law from the Contractor and all subcontractors and
suppliers furnishing labor or materials.


 


19

















 


(f)            All documents necessary to effect
and perfect the transfer of title to the materials or equipment for which
application for payment if made.


 


Within thirty
(30) days of receipt from Tenant of the items set forth in this Paragraph 3,
Landlord shall pay to Tenant the Improvement Allowance in an amount equal to
the actual costs incurred by Tenant to paint and re-carpet the Premises, which
amount shall not exceed the Improvement Allowance maximum.


 


4.             Assignment
of Rights Against Architect and Contractor. Tenant
hereby assigns to Landlord on a non-exclusive basis any and all rights Tenant
may have against Tenant’s architects and contractors relating to the
Improvement Work, without in any way obligating Landlord to pursue or prosecute
such rights. Landlord shall have no obligation to advance the Improvement
Allowance to the extent it exceeds the total cost of the Improvement Work. In
no event shall Landlord have any responsibility for the cost of the Improvement
Work in excess of the Improvement Allowance. Landlord shall have no obligation
to make any payments to Contractor’s material suppliers to subcontractors or to
determine whether amounts due them from Contractor in connection with the
Improvement Work have, in fact, been paid.


 


(Remainder of Page Intentionally Left Blank)


 


20

















 


IN WITNESS WHEREOF, Landlord
and Tenant have executed this Work Letter as of the respective dates indicated
below.


 


	
   

  	
  LANDLORD:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  MARRIOTT PLAZA ASSOCIATES L.P.,

  
	
   

  	
  a California
  limited partnership

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Menlo
  Equities Associates IV LLC,

  
	
   

  	
   

  	
  a California
  limited liability company

  
	
   

  	
   

  	
  Its General
  Partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  Menlo
  Equities LLC,

  
	
   

  	
   

  	
   

  	
  a California
  limited liability company

  
	
   

  	
   

  	
   

  	
  Its Manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By: 

  	
  Diamant
  Investments LLC,

  
	
   

  	
   

  	
   

  	
   

  	
  a Delaware
  limited liability company

  
	
   

  	
   

  	
   

  	
   

  	
  Its Member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  By:

  	
  /s/ Richard
  J. Holmstrom

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
  Richard J.
  Holmstrom, Manager

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  TENANT:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  COMMERCE ONE, INC.,

  
	
   

  	
  a Delaware
  corporation

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Charles
  D. Boynton

  	
   

  
	
   

  	
  Print Name: 

  	
  Charles D.
  Boynton

  	
   

  
	
   

  	
  Its:

  	
  Director of
  Financial Planning & Analysis

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian
  Griggs

  	
   

  
	
   

  	
  Print Name:

  	
  Brian Griggs

  	
   

  
	
   

  	
  Its: 

  	
  Authorized
  Representative

  	
   

  
																	



 


21

















 


EXHIBIT C


 


Standard Tenant Improvements


 


[to be attached]


 


22

















 


[GRAPHIC]


 


23

















 


[GRAPHIC]


 


24

















 


[GRAPHIC]


 


25

















 


[GRAPHIC]


 


26

















 


[GRAPHIC]


 


27

















 


[GRAPHIC]


 


28