**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.,** aCalifornia limited partnership (“Landlord”), and **COMMERCE ONE, INC.,** a Delaware corporation(successor-in-interest to Commercebid.com) (“Tenant”).

 

**RECITALS**

 

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

 

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

 

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

 

**D.****           **Landlord andTenant desire to amend the Lease on the terms and conditions set forthherein.  Capitalized terms used in thisAmendment and not otherwise defined shall have the meanings assigned to them inthe Lease.

 

**AGREEMENT**

 

**NOW THEREFORE,** forgood and valuable consideration, the receipt and sufficiency of which arehereby acknowledged, Landlord and Tenant hereby agree as follows:

 

**1.****             Additional Definitions. **The following paragraphs shall be addedto the end of Article 1 of the Lease:

 

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

 

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

 

**1.3****         **The term “FirstOption Space” shall mean Suite 205 of the Building, which is comprised ofapproximately 8,280 rentable square feet.

 

**1.4****         **The term “SecondOption Space” shall mean Suite 201 of the Building, which is comprised ofapproximately 6,191 rentable square feet.

 

1

----

 

**1.5****         **The term “Must TakeSpace” shall mean Suite 220 of the Building, which is comprised ofapproximately 2,226 rentable square feet.

 

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

 

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

 

**4.****             Lease Term ExpirationDate.**  The Term Expiration Date, asset forth in the Basic Lease Information, is deleted and replaced with thefollowing: “February 28, 2006.”

 

**5.****             SecurityDeposit. **The Security Deposit setforth in the Basic Lease Information (“Original Security Deposit”) is herebyincreased to $125,000 (“New Security Deposit”).  The difference between the Original Security Deposit and the NewSecurity Deposit (consisting of $37,747.70) shall be delivered to Landlordwithin five (5) business days after full execution of this Lease.  In addition, Section 5 of the Lease isamended as follows:

 

**5.1****         **The penultimatesentence of Section 5 is deleted and replaced with the following: “Tenantspecifically grants to Landlord (and Tenant hereby waives the provisions ofCalifornia 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 whichto inspect the Premises, make required restorations and repairs, receive andverify workmen’s billings therefor, and prepare a final accounting with respectto the Security Deposit.”

 

**5.2****         **The following ishereby added to the end of Section 5:

 

Tenant maydeliver to Landlord a clean, unconditional, irrevocable, transferable letter ofcredit in lieu of cash for the New Security Deposit (the “Letter of Credit”) inform and issued by a financial institution (“Issuer”) satisfactory to Landlordin its sole discretion, substantially in the form attached as Exhibit A.  The Letter of Credit shall permit partialdraws, and provide that draws thereunder will be honored upon presentation byLandlord.  The Letter of Credit shallhave an expiration period of one (1) year but shall automatically renew by itsterms unless affirmatively cancelled by either Issuer or Tenant, in which caseIssuer must provide Landlord thirty (30) days prior written notice of suchexpiration or cancellation.  The Letterof Credit shall remain in effect until four (4) months after the LeaseExpiration Date.  Any amount drawn underthe Letter of Credit shall be held or used by Landlord in accordance with thisArticle 5 of the Lease.  If the Tenantfails to renew or replace the Letter of Credit as required under this Lease atleast thirty (30) days before its stated expiration date, Landlord may drawupon the entire amount of the Letter of Credit.  No fees

 

2

----

 

applicable tothe Letter of Credit shall be charged to Landlord.  In the event Tenant delivers a Letter of Credit to Landlord inthe full amount of the New Security Deposit, Landlord shall return anyunapplied amount of the Original Security Deposit to Tenant within 10 businessdays thereafter.

 

**6.****             Base Rent forOriginal Premises.**  The followingparagraph is hereby added to the Lease as Paragraph 3(g).

 

**6.1**          Base Rent for the Original Premises shallincrease 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 March1, 2005.

 

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

 

**7.1****          Suite 101.**

 

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

 

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

 

**7.2****          Suite 106.**

 

**(a)****          **Landlord shalldeliver to Tenant Suite 106 thirty (30) days after the date of this Amendment; *provided, however,* that if Landlord, forany reason whatsoever beyond Landlord’s reasonable control, cannot deliverpossession 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 thePremises, nor shall Landlord be liable to Tenant for any loss or damageresulting therefrom, but in that event, rental shall be waived for the periodbetween the commencement of the applicable term and the time when Landlord candeliver possession.  In the event Tenantoccupies 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 theportion thereof so occupied.

 

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

 

3

----

 

**7.3          Suite107.**

 

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

 

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

 

**7.4          Suite212.**

 

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

 

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

 

**8.             FirstOption Space. **Thefollowing paragraphs are hereby added to the Lease as Paragraphs 47.1 and 47.2.

 

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

 

**(a)**           The First Expansion Option shall beexercised, if at all, by written notice of exercise given to Landlord by Tenantno later than March 15, 2001;

 

4

----

 

**(b)**           Notwithstanding anything to thecontrary contained herein, if Tenant is in default under any of the materialterms, covenants or conditions of this Lease at the time Tenant exercises theFirst Expansion Option, Landlord shall have, in addition to all of Landlord’sother rights and remedies provided in this Lease, the right to terminate suchFirst Expansion Option upon notice to Tenant.

 

**8.2**          In the event the First ExpansionOption is exercised in a timely fashion, Landlord and Tenant shall enter intoan amendment to the Lease, which amendment shall be upon all of the terms andconditions of the Lease, including, without limitation, a term expiring on theTerm Expiration Date, first month’s prepaid rent, forty-five (45) day earlydelivery date prior to rent and lease commencement, and options to extend; *provided, however*, that (i) the Base Rentfor the First Option Space shall be $53,820 ($6.50 per rentable square foot permonth) 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’sreasonable control, cannot deliver possession of the First Option Space toTenant on the date set forth in this Section 8.2, this Lease shall not be voidor voidable as to the First Option Space or any of the Premises, nor shallLandlord be liable to Tenant for any loss or damage resulting therefrom, but inthat event, rental shall be waived for the period between the commencement ofthe applicable term and the time when Landlord can deliver possession.  In the event Tenant occupies any part of FirstOption Space prior to the applicable Commencement Date, Tenant shall commencepaying Base Rent as of such date for the First Option Space or the portionthereof so occupied.

 

**9.             SecondOption Space.** The following paragraphs are hereby added to the Lease as Paragraphs48.1 and 48.2.

 

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

 

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

 

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

 

**9.2**          In the event the Second ExpansionOption is exercised in a timely fashion, Landlord and Tenant shall enter intoan amendment to the Lease, which amendment shall be upon all of the terms andconditions of the Lease including, without limitation, a term expiring on theTerm Expiration Date, first month’s prepaid rent, forty-five (45) day earlydelivery date prior to rent and lease commencement, and options to extend; *provided, however*, that (i) the Base Rentfor the Second Option Space shall be $41,789.25 ($6.75 per rentable square footper

 

5

----

 

month), subject to the rentalincreases set forth in Section 12 below, and (ii) the lease term shall commenceforty-five (45) days after the delivery date, which delivery date shall beMarch 1, 2002; *provided, however,*that if Landlord, for any reason whatsoever beyond Landlord’s reasonablecontrol, cannot deliver possession of the Second Option Space to Tenant on thedate set forth in this Section 9.2, this Lease shall not be void or voidable asto the Second Option Space or any of the Premises, nor shall Landlord be liableto Tenant for any loss or damage resulting therefrom, but in that event, rentalshall be waived for the period between the commencement of the applicable termand the time when Landlord can deliver possession.  In the event Tenant occupies any part of Second Option Spaceprior to the applicable Commencement Date, Tenant shall commence paying BaseRent as of such date for the Second Option Space or the portion thereof sooccupied.

 

**10.          Must-TakeSpace.**  Thefollowing paragraph shall be added to the Lease as Paragraph 49.

 

**10.1       **Landlordshall 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 Landlordgives Tenant 45 days prior written notice, and, if so delivered, Tenant shallbe obligated to lease the Must-Take Space from Landlord.  In the event the Must-Take Space isdelivered in a timely fashion, Landlord and Tenant shall enter into anamendment to the Lease, which amendment shall be upon all of the terms and conditionsof this Lease including, without limitation, a term expiring on the Lease TermExpiration Date, first month’s prepaid rent, forty-five (45) day early deliverydate prior to rent and lease commencement, and options to extend; *provided, however,* that (i) the Base Rentfor the Must-Take Space shall be the greater of (a) $6.25 per rentable squarefoot per month or (b) the Base Rent then payable for Suite 212, subject to therental increases set forth in Section 12 below, and (ii) the lease term shall commenceforty-five (45) days after the delivery date.

 

**11.          Conditionof Premises.** The following paragraph is hereby added to the Lease as Paragraph 50.

 

**11.1**        Tenant hereby acknowledges that Tenanthas inspected each of the Additional Suites, the First Option Space, the SecondOption Space and the Must-Take Space and that Landlord shall deliver each suchsuite or space and all Building or operating systems to Tenant (and Tenanthereby accepts them) in their then “AS IS” condition, with all faults, subject toLandlord’s maintenance and repair obligations under Section 18 (a) of theLease.  Landlord makes norepresentations or warranties to Tenant regarding the condition of theAdditional Suites, the First Option Space, the Second Option Space or theMust-Take Space.

 

**12.          RentIncreases.**  Thefollowing paragraph is hereby added to the Lease as Paragraph 51.

 

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

 

6

----

 

(if commencing on or afterMarch 1, 2002) shall be increased by four percent (4%) on March 1, 2003 andeach March 1st thereafter until the expiration or earlier terminationof the Lease.

 

**13.          Optionto Extend Term:** The following paragraphs are hereby added to the Lease as Paragraphs52.1 through 52.4.

 

**13.1       **Solong 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 tothe 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”), subjectto the following conditions:

 

**(a)**           The option to extend shall beexercised, if at all, by written notice of exercise given to Landlord by Tenantnot more than twelve (12) months nor less than nine (9) months prior to theTerm Expiration Date;

 

**(b)**           Anything herein to the contrarynotwithstanding, if Tenant is in default under any of the material terms,covenants or conditions of the Lease, either at the time Tenant exerciseseither extension option or on the commencement date of the Extension Periodthen Landlord shall have, in addition to all of Landlord’s other rights andremedies provided in this Lease, the right to terminate such option to extendupon notice to Tenant.

 

**13.2**        In the event the applicable option isexercised in a timely fashion, the Lease shall be extended for the term of theapplicable 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 MarketRent” for the Premises, determined as set forth below, with annual increases asdetermined as part of the process set forth below.

 

**13.3**        Within thirty (30) days after receipt ofTenant’s notice of exercise, Landlord shall notify Tenant in writing ofLandlord’s good faith estimate of the Base Rent for the first year of theapplicable extension period, and Landlord’s estimate of annual increases, ifany.  For purposes hereof, “Fair MarketRent” shall mean collectively, (1) Base Rent for the first year of theExtension Period and (2) the annual increases determined at the time Base Rentfor the first year is determined.  Withinthirty (30) days after receipt of such notice from Landlord, Tenant shall havethe 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 tobe conducted pursuant to the provisions hereof.  Failure on the part of Tenant to require arbitration of FairMarket Rent within such thirty (30) day period shall constitute acceptance ofthe Fair Market Rent for the Extension Period as calculated by Landlord.  If Tenant elects arbitration, thearbitration shall be concluded within ninety (90) days after the date ofTenant’s election, subject to extension for an additional thirty (30) dayperiod if a third arbitrator is required and does not act in a timely manner.  To the extent that arbitration has not beencompleted prior to the expiration of any preceding period for which Base Renthas been determined, Tenant shall pay Base Rent at the rate calculated byLandlord, with the potential for an adjustment to be made once Fair Market Rentis ultimately determined by arbitration.

 

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

 

7

----

 

between the parties. Thearbitration shall be conducted and determined in the County of Santa Clara inaccordance with the then prevailing rules of the American ArbitrationAssociation or its successor for arbitration of commercial disputes except tothe extent that the procedures mandated by such rules shall be modified asfollows:

 

**(a)          **Tenantshall make demand for arbitration in writing within thirty (30) days afterservice of Landlord’s determination of Fair Market Rent given under Section13.3 above, specifying therein the name and address of the person to act as thearbitrator on its behalf. The arbitrator shall be qualified as a real estateappraiser familiar with the Fair Market Rent of similar office space in theSilicon Valley area who would qualify as an expert witness over objection togive opinion testimony addressed to the issue in a court of competentjurisdiction. Failure on the part of Tenant to make a proper demand in a timelymanner 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 theperson designated by Landlord to act as arbitrator on its behalf who shall besimilarly qualified. If Landlord fails to notify Tenant of the appointment ofits arbitrator, within or by the time above specified, then the arbitratorappointed by Tenant shall be the arbitrator to determine the issue.

 

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

 

**(c)          **Wherean issue cannot be resolved by agreement between the two arbitrators selectedby 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) daysof the appointment of the third arbitrator in accordance with the followingprocedure.  The arbitrator selected byeach of the parties shall state in writing his determination of the Fair MarketRent supported by the reasons therefor with counterpart copies to eachparty.  The arbitrators shall arrangefor a simultaneous exchange of such proposed resolutions. The role of the thirdarbitrator shall be to select which of the two proposed resolutions mostclosely approximates his determination of Fair Market Rent. The thirdarbitrator shall have no right to propose a middle ground or any modificationof either of the two proposed resolutions. The resolution he chooses as mostclosely approximating his determination shall constitute the decision of thearbitrators and be final and binding upon the parties.

 

8

----

 

**(d)          **Inthe event of a failure, refusal or inability of any arbitrator to act, hissuccessor 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 appointmentof the third arbitrator.  The arbitratorsshall decide the issue within fifteen (15) days after the appointment of thethird arbitrator.  Any decision in whichthe arbitrator appointed by Landlord and the arbitrator appointed by Tenantconcur shall be binding and conclusive upon the parties.  Each party shall pay the fee and expenses ofits respective arbitrator and both shall share the fee and expenses of thethird arbitrator, if any, and the attorneys’ fees and expenses of counsel forthe respective parties and of witnesses shall be paid by the respective partyengaging such counsel or calling such witnesses.

 

**(e)          **Thearbitrators shall have the right to consult experts and competent authoritiesto obtain factual information or evidence pertaining to a determination of FairMarket Rent, but any such consultation shall be made in the presence of bothparties with full right on their part to cross-examine.  The arbitrators shall render their decisionand award in writing with counterpart copies to each party.  The arbitrators shall have no power tomodify the provisions of this Lease.

 

**14.          TenantImprovements.** The following paragraph is hereby addedto the Lease as Paragraph 53.

 

**14.1       **Tenantshall, pursuant to the work letter attached to this Lease as Exhibit Band made a part hereof (the “Work Letter”), perform the work and make the installationsin the Premises substantially as set forth in the Work Letter (such work andinstallations 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 ExhibitC attached hereto (the “Standard Tenant Improvements”).

 

**15.          Parking.**“Parking” as set forth in the Basic Lease Information shall be deleted andreplaced with the following: “Non-exclusive unassigned parking at a ratio of3.2 spaces per 1,000 rentable square feet comprising the Premises at any giventime. 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 butonly once in any twelve (12) month period during the Term, Tenant shall beentitled to written notice of non-receipt of Base Rent from Landlord, andTenant shall not be liable for any late charge hereunder if such installment ofBase Rent is received by Landlord within five (5) days after Tenant’s receiptof 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 consentto an alteration or modification to the Premises and includes in such writtenrequest a provision in **ALL CAPITALS BOLD FACETYPE** for permission to leave such alteration or modification at theexpiration of the Term, Landlord’s consent (if given) shall indicate whetherthe Tenant may leave the proposed alteration or modification in the Premises atthe expiration of the Term. Such determination shall be made in Landlord’s solediscretion. Failure of Landlord to provide

 

9

----

 

such an indication shall bedeemed an election of the Landlord to require removal. In the event theLandlord indicates that the alteration or modification may remain in thePremises at the expiration of the Term, Tenant shall not be required to removesuch alteration or modification, notwithstanding anything in Section 7 of theLease 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 andsubject to space availability, Tenant at its sole cost and expense, shall havethe right to install a business identification sign on the concrete monumentsign for the Building in approximate proportion to Tenant’s share of theBuilding. Any such sign shall be subject to Landlord’s prior written consent asto design, location and materials.”

 

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

 

4440 RosewoodDrive

Pleasanton,California 94588

Attention:General Counsel

 

with a copyto:

 

4440 RosewoodDrive

Pleasanton,California 94588

Attention:Director of Real Estate

 

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

 

**21.          Assignmentand Subletting.** Section 24 is hereby amended asfollows:

 

**21.1       **Section24(a)(iii) is deleted in its entirety and replaced with the following: “inLandlord’s reasonable judgment, the financial worth of the proposed assigneedoes not meet the reasonable credit standards applied by Landlord;”

 

**21.2       **Section24(viii) is deleted in its entirety and replaced with the following: “theproposed assignee or sublessee is, as of the date of this Lease, a tenant inthe Building and Landlord does not have space in the Building available forLease;”

 

**21.3       **Section24(a)(xi) is hereby deleted in its entirety.

 

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

 

10

----

 

**23.          Miscellaneous.**

 

**23.1        VoluntaryAgreement.** The parties have read this Amendment and onthe advice of counsel they have freely and voluntarily entered into thisAmendment.

 

**23.2        Attorneys’Fees.** If either party commences an action against theother party arising out of or in connection with this Amendment, the prevailingparty 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 andtheir successors.

 

**23.4        Counterparts.**This Amendment may be signed in two (2) or more counterparts. When at least onesuch counterpart has been signed by each party, this Amendment shall be deemedto have been fully executed, each counterpart shall be deemed to be anoriginal, and all counterparts shall be deemed to be one and the sameagreement.

 

11

----

 

**IN WITNESS WHEREOF,**Landlordand 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 ofCredit Number:                                     

 
| Beneficiary: |   | Applicant:  |
|--------------|--------|-------------|
|         |   |        |
|         |   |        |   |
|         |   |        |   |
|         |   |        |   |
|         |   |        |   |
|         |   |        |   |
|         |   |        |
|         |   |        |
|         |   | Amount:     |
|         |   |        |
|         |   | USD $       |   |
|         |   | (           |   | ) |
|         |   |        |
|         |   | Expiration: |   |
|              |        |             |  |  |  |  |  |

 

We hereby establish ourIrrevocable 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 bypayment 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 onthe expiration date or any automatically extended expiration date ashereinafter set forth.

 

This Letter of Credit shallexpire 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 beforethe current expiration date we notify you by overnight courier that this Letterof Credit is not extended beyond the current expiration date.  In the event you are so notified, any unusedportion of the Letter of Credit shall be available upon presentation of a sightdraft by                                within the current expiration date.

 

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

 

13

----

 

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

 

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

 
|   | Yours very  truly,         |
|--------|----------------------------|
|   |                       |
|   |                       |
|   |                       |
|   | Authorized  Signature      |
|   | Letter of  Credit Services |
|   | (_____)_____________       |

 

14

----

 

EXHIBIT A

 
|   |   |
|--------|--------|
|   |   |
|   |   |
|   |   |

Attention: Letter of CreditServices

 

Re: Irrevocable Letter of Credit No.                            

 

Dear Sirs:

 

Theundersigned 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 thesaid credit with all amendments and extensions, if any, and hereby irrevocablytransfer the said credit and all amendments and extensions thereof, if any, to:

 
|   | _______________________________________ |   |
|--------|-----------------------------------------|--------|
|   | [Name of Transferee]                    |   |
|   |                                    |   |
|   | _______________________________________ |   |
|   | [Address]                               |   |

 

You are toinform the transferee of this transfer and such transferee shall have solerights as beneficiary under the credit, including any amendments, extension orincreases 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.**, aCalifornia limited partnership (“Landlord”) and **COMMERCE ONE, INC.**, a Delaware corporation (“Tenant”).  On or about the date hereof, Landlord andTenant entered into that certain Amendment No. 1 to Lease, which amended thatcertain Office Lease dated August 30, 1999 (as amended, the “Lease”) for thePremises, as defined in the Lease.  ThisWork Letter sets forth the agreement of Landlord and Tenant with respect to theimprovements to be constructed in the Premises.  In the event of any inconsistency between the terms of this WorkLetter and the terms of the Lease, the terms of the Lease shall control.  All defined terms used herein shall have themeanings set forth in the Lease, unless otherwise defined in this Work Letter.

 

**1.****             Improvement Work.**  Tenant shall construct, furnish or installall improvements, equipment or fixtures, that are necessary for Tenant’s useand occupancy of the entirety of the Premises (the “Improvement Work”).  Tenant shall also be responsible for thecost of any alterations to the Building required as a result of the ImprovementWork.  The Improvement Work shall be inconformity with drawings and specifications submitted to and approved byLandlord and shall be performed in accordance with the following provisions:

 

**(a)****                                 ****               **Tenant shallprepare and submit to Landlord for its approval two sets of fully dimensionedscale drawings (suitable for submission with a building permit application) forthe Improvement Work (including plans, elevations, critical sections anddetails) and a specification of Tenant’s utility requirements.  Tenant shall cause all drawings andspecifications for the Improvement Work to be prepared by licensed architectsand where appropriate, mechanical, electrical and structural engineers.

 

**(b)**                                                  Within 5 days after receipt of Tenant’sdrawings Landlord shall return one set of prints thereof with Landlord’sapproval and/or suggested modifications noted thereon.  If Landlord has approved Tenant’s drawingssubject to modifications, such modifications shall be deemed to be acceptableto and approved by Tenant unless Tenant shall prepare and resubmit reviseddrawings for further consideration by Landlord.  If Landlord has suggested modifications without approvingTenant’s drawings Tenant shall prepare and resubmit revised drawings withinseven days for consideration by Landlord. All revised drawings shall be submitted, with changes highlighted, toLandlord within seven days following Landlord’s return to Tenant of thedrawings originally submitted, and Landlord shall approve or disapprove suchrevised drawings within seven days following receipt of the same.

 

**(c)**                                                  Tenant shall obtain all building andother permits necessary in connection with the Improvement Work prior to thecommencement of such work.  TheImprovement Work shall (i) be constructed in compliance with all of the terms

 

16

----

 

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

 

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

 

1.                                       Theaddress of Tenant’s general contractor, and the names of the primarysubcontractors Tenant’s contractor intends to engage for the construction ofthe Premises.

 

2.                                       Theactual commencement date of construction and the estimated date of completionof the work, including fixturization.

 

3.                                       Evidenceof insurance as called for hereinbelow.

 

4.                                       Anexecuted copy of the applicable building permit for such work.

 

**(e)**                                                  After final approval of Tenant’sdrawings by Landlord, Tenant shall proceed promptly to commence performance ofthe Improvement Work.  Tenant’scontractors and subcontractors shall be acceptable to and approved in writingby Landlord, which approval shall not be unreasonably withheld or delayed, andshall, at Landlord’s option, be subject to administrative supervision byLandlord in their use of the Building. Tenant shall furnish to Landlord a copy of the executed contract betweenTenant and Tenant’s general contractor covering all of Tenant’s obligationsunder this Work Letter.  Tenant shalluse commercially reasonable efforts to cause such work to be performed in asefficient a manner as is commercially reasonable.  Tenant shall reimburse Landlord on demand for the cost of repairingany damage to the Building caused by Tenant or its contractors duringperformance of the Improvement Work. Tenant’s contractors shall conduct their work and employ labor in suchmanner as to maintain harmonious labor relations.  Tenant’s general contractor (“Contractor”) shall obtain abuilder’s risk policy of insurance in an amount and form and issued by acarrier reasonably satisfactory to Landlord, and Tenant’s general contractorand subcontractors shall carry worker’s compensation insurance for theiremployees as required by law.  Thebuilder’s risk policy of insurance shall name Landlord as an additional insuredand shall not be cancelable without at least 30 days’ prior written notice toLandlord.

 

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

 

17

----

 

exercise theremedies 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 curereasonably requires more than ten (10) days, unless such default is cured assoon as reasonably practicable but in no event later than thirty (30) daysafter Landlord’s notice to Tenant.  Onlynew materials shall be used in the construction of the Improvement Work, exceptwith the written consent of Landlord.

 

**(g)**                                                 During the construction of theImprovement Work, Tenant shall provide and pay for temporary connections forall utilities brought to the Building. Trash removal will be done continually at Tenant’s sole cost andexpense.  No trash, or other debris, orother waste may be deposited at any time outside the Building.  If so, Landlord may remove it at Tenant’sexpense, 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 theBuilding, and in no event shall any materials or debris be stored outside ofthe Building.

 

**(i)**                                                    Tenant acknowledges that it has engagedits architects and shall be solely responsible for the actions and omissions ofits architects and for any loss, liability, claim, cost, damage or expensesuffered by Landlord or any other entity or person as a result of the acts oromissions of its architects or for delays caused by its architects.  Landlord’s approval of any of Tenant’sarchitects or engineers and of any documents prepared by any of them shall notbe for the benefit of Tenant or any third party, and Landlord shall have noduty to Tenant or to any third parties for the actions or omissions of Tenant’sarchitects or engineers.  Tenant shallindemnify and hold harmless Landlord against any and all losses, costs,damages, claims and liabilities arising from the actions or omissions ofTenant’s architects and engineers.

 

**(j)**                                                    Landlord shall have the right to postin a conspicuous location on the Building or the Premises, as well as recordwith the County of Santa Clara, a Notice of Nonresponsibility.

 

**(k)**                                                Without limiting the generality of theforegoing, any work to be performed outside of the Building shall becoordinated with Landlord, and shall be subject to reasonable schedulingrequirements of Landlord.

 

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

 

**2.****                                      Paymentof Costs of the Improvement Work.**

 

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

 

18

----

 

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

 

**(b)**                                                  The Improvement Allowance shall beutilized only for carpeting and painting the Premises, and not for otherimprovements to the Premises or Building, signage, furniture costs, any thirdparty 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 ofthe Improvement Allowance, if any.

 

**3.**             **Evidenceof Completion of Improvement Work.** Upon the completion of the Improvement Work, Tenant shall submit toLandlord:

 

**(a)**                                                  A detailed breakdown of Tenant’s finaland total construction costs, together with receipted evidence showing paymentthereof, satisfactory to Landlord.

 

**(b)**                                                  All evidence reasonably available fromgovernmental authorities showing compliance with any and all other laws, ordersand regulations of any and all governmental authorities having jurisdictionover the Building, including, without limitation, authorization for physicaloccupancy of the Building.

 

**(c)**                                                  The as-built plans and specificationsof all Improvement Work.

 

**(d)**                                                  A Contractor’s certification asfollows:

 

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

 

**(e)**                                                  Fully executed unconditional lien releasesin the form prescribed by law from the Contractor and all subcontractors andsuppliers furnishing labor or materials.

 

19

----

 

**(f)**            All documents necessary to effectand perfect the transfer of title to the materials or equipment for whichapplication 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 tothe actual costs incurred by Tenant to paint and re-carpet the Premises, whichamount shall not exceed the Improvement Allowance maximum.

 

**4.             Assignmentof Rights Against Architect and Contractor.** Tenanthereby assigns to Landlord on a non-exclusive basis any and all rights Tenantmay have against Tenant’s architects and contractors relating to theImprovement Work, without in any way obligating Landlord to pursue or prosecutesuch rights. Landlord shall have no obligation to advance the ImprovementAllowance to the extent it exceeds the total cost of the Improvement Work. Inno event shall Landlord have any responsibility for the cost of the ImprovementWork in excess of the Improvement Allowance. Landlord shall have no obligationto make any payments to Contractor’s material suppliers to subcontractors or todetermine whether amounts due them from Contractor in connection with theImprovement Work have, in fact, been paid.

 

(Remainder of Page Intentionally Left Blank)

 

20

----

 

**IN WITNESS WHEREOF,**Landlordand Tenant have executed this Work Letter as of the respective dates indicatedbelow.

 
|   | **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

----