Sublease
This Sublease (the "Sublease") is entered into as of the date set forth
in Section 1.1 (e) below, by and between the Sublandlord and the Subtenant set
forth below.
WITNESSETH
1.1 The Sublease provisions and definitions set forth
in this Section 1.1. in summary form are solely to facilitate
convenient reference by the parties. If there is any conflict
between this Section and any other provisions of the Sublease,
the latter shall control.
(A) SUBLANDLORD'S NAME CYBERCASH, INC.
AND ADDRESS: 2100 Reston Parkway, Third Floor
Reston, Virginia 20191
Attention: Manager, Facilities
(B) SUBLANDLORD'S STATE Delaware
OF INCORPORATION
(C) SUBTENANT'S NAME MYTURN.COM, INC.
AND ADDRESS 1080 Marina Village Parkway
Alameda, CA 94501
510-263-4800
(D) SUBTENANT'S STATE
OF INCORPORATION: Delaware
(E) SUBLEASE DATE: August 24, 2000
(F) OVERSUBLANDLORD'S COMPUTER ASSOCIATES
NAME AND ADDRESS: INTERNATIONAL, INC. (as successor
In interest to ASK Computer Systems,
Inc.)
1 Computer Associates Plaza
Islandia, New York 11788-7000
Attention: Senior Vice President -
Facilities
(G) OVERSUBLEASE: Sublease dated March 23, 1999, between
Sublandlord and Oversublandlord
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(H) OVERLANDLORD'S ALAMEDA REAL ESTATE
NAME AND ADDRESS: INVESTMENTS VINTAGE PROPERTIES
393 Vintage Park Drive
Foster City, California 94404
(I) OVERLEASE: Lease dated June 25, 1992 between
Overlandlord and Oversublandlord, as Amended
by Amendment No. 1, dated December 1, 1994
(J) UNINCORPORATED Paragraphs: 4A, 4B, 4C, 4G, 5, 9, (except
PROVISIONS OF THE Subtenant shall be responsible for payment
OVERLEASE of applicable telephone charges), 32,
36 and 45
(K) BUILDING: 1201 Marina Village Parkway
Alameda, California 94501
(L) PREMISES: Approximately 12,516 rentable square feet on
the third floor of the Building, described
in Exhibit "A," hereto (the "Premises").
(M) ESTIMATED SUBLEASE
COMMENCEMENT DATE: September 15, 2000
(N) SUBLEASE
EXPIRATION DATE: September 29, 2004
(O) BASE MONTHLY RENT: As set forth below commencing
on the Sublease Commencement Date.
Month Base Rent
(or portions thereof) (prorated for portions of months)
---------------------------------------- ------------------------------------
1-12 $ 35,044.80
---------------------------------------- ------------------------------------
13-24 $ 36,446.59
---------------------------------------- ------------------------------------
25-36 $ 37,904.46
---------------------------------------- ------------------------------------
37- Expiration $ 39,420.63
---------------------------------------- ------------------------------------
(P) SUBLEASE OPERATING
EXPENSES INCLUDING REAL
ESTATE TAXES (See Article 13)
(Q) PREPAID BASE RENT: $35,044.80
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(R) SECURITY DEPOSIT: (See Article 15)
(S) ALTERATIONS: (See Article 7)
(T) BASE YEAR: 2000
(U) BROKERS:
FOR SUBLANDLORD: The Staubach Company
FOR SUBTENANT: Aegis Realty Partners
(V) SUBTENANT'S
PROPORTIONAL SHARE: 15.08% of the Building
2. SUBLEASE GRANT.
2.1 By lease (hereinafter referred to as the "Overlease") described above,
the Overlandlord leased to Oversublandlord the Premises in accordance with the
terms of the Overlease. A copy of the Overlease is attached hereto as Exhibit 1.
By Sublease (hereinafter referred to as the "Oversublease"), the Oversublandlord
leased to Sublandlord the Premises in accordance with the terms of the
Oversublease. A copy of the Oversublease is attached hereto as Exhibit 2.
2.2 In consideration of the obligation of Subtenant to pay rent as herein
provided and in consideration of the other terms, covenants and conditions
hereof, Sublandlord hereby leases to Subtenant and Subtenant hereby hires from
Sublandlord, upon and subject to the provisions of this Sublease, the
Oversublease and the Overlease, the Premises.
3. SUBLEASE TERM.
3.1 Subject to the other provisions hereof, this Sublease shall continue in
full force and effect for a term beginning on the Sublease Commencement Date and
ending on the Sublease Expiration Date as defined above. Such term is herein
called the "Sublease Term."
3.2 The Sublease Commencement Date shall be seven (7) days after
Sublandlord provides Subtenant with written notice of Sublandlord's substantial
completion of the work described in the attached Exhibit B. If for any reason
other than Sublandlord's willful misconduct or breach of this Sublease there is
a delay in Sublandlord's delivery of the Premises, Sublandlord shall not be
subject to any liability therefore, nor shall such failure affect the validity
of this Sublease, or the obligations of the parties hereunder, or extend the
term hereof, provided, however, that if possession of the Premises is not
delivered to Subtenant within sixty (60) days of the date set forth in Section
1.1(m),
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Subtenant may, in its sole discretion, terminate this Sublease. The payment of
rent shall not commence prior to the Commencement Date.
3.3 Sublease Termination. If Subtenant elects to terminate the Sublease
based upon the terms and conditions of Section 3.2 above only, Sublandlord shall
immediately return and release all prepaid rent and deposits made by Subtenant
to Sublandlord in conjunction with this Sublease.
4. RENT.
4.1 Subtenant, in consideration of and as a condition to this Sublease,
agrees to pay to Sublandlord the rent prescribed herein, including the Base Rent
set forth in Section 1.1(o), hereof. Base Rent is payable in advance and without
demand, at Sublandlord's office (or such other location as Sublandlord shall
designate in writing) by check on the first day of each month during the
Sublease Term without any set-off, off-set, abatement or reduction whatsoever.
Subtenant's failure to receive an invoice from Sublandlord for the rent shall
not relieve Subtenant from its obligation of timely payment hereunder. The
Prepaid Base Rent as defined in Section 1.1(q) shall be provided upon
Subtenant's Sub-Sublease execution and applied against Subtenant's first month's
obligation with respect to the Base Rent. In the event the Sublease Commencement
Date is after the first day of the month, Subtenant shall be entitled to a
prorated credit against the Prepaid Base Rent for each such day after the first
day of the month to be applied toward the next month's payment.
4.2 As used in this Sublease, "rent" shall mean the Base Rent, the
Operating Expense reimbursements pursuant to Sections 1.1 and Article 13, and
all other monetary obligations provided for in this Sublease to be paid by
Subtenant, all of which constitute rental in consideration for this Sublease.
4.3 In the event the rent is not paid by the fifth day of any given month,
interest shall accrue thereon at the maximum rate permitted by law. In addition,
if the rent is not paid by the tenth day of any given month, Subtenant shall pay
to Sublandlord, as liquidated damages, and not as a penalty, an additional
amount equal to five percent of the rent that is due, but not less than One
Hundred Dollars ($100.00).
5. ASSIGNMENT OR UNDERLETTING.
5.1 Except for a merger of Subtenant with, or sale of substantially all of
Subtenant's assets to a US corporation that assumes Subtenant's obligations
hereunder in writing, Subtenant shall not (a) assign this Sublease, or (b)
permit this Sublease to be assigned by operation of law or otherwise, or (c)
underlet all or any portion of the Premises (including any desk space therein),
without first obtaining:
(i) Overlandlord's and Oversublandlord's consents and all other
required consents to such assignment or subletting as set forth in and
pursuant to the Overlease and the Oversublease; and
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(ii) Sublandlord's consent.
5.2 If Subtenant intends, in good faith, to consider taking any of the
actions described in Section 5.1(a) through (c) above, for the entire Premises
or any portion thereof, then Subtenant shall request in writing Sublandlord's
consent and, Sublandlord shall have the right exercisable in its sole
discretion, within ten (10) days of receipt of such notice, to terminate this
Sublease as to the Premises (or portion thereof) referenced in the notice and
take possession of the Premises or portion thereof for which Subtenant is making
the request ("Termination Notice"). If Sublandlord elects to terminate this
Sublease as to any portion of the Premises in accordance with this Section 5.3,
Subtenant may, within five (5) business days of written receipt of Sublandlord's
intent to terminate this Sublease as to any portion of the Premises, withdraw
its notice in its entirety and, upon such withdrawal, this Sublease shall remain
in full force and effect as to the Premises or portion thereof to which the
withdrawn notice pertained. If Sublandlord terminates this Sublease (or any
portion thereof) under this Section 5.3, Subtenant's rights and obligations
hereunder shall cease with respect to any portion of the Premises referenced in
the Termination Notice, except for liability for rents accrued to the date of
termination and for any prior breaches of this Sublease, both of which shall
survive termination. In the event Sublandlord does not elect to terminate this
Sublease as to any portion of the Premises, Subtenant may market the space for
sublease and shall be bound by the consent requirements of this Section 5.
5.3 Upon such termination as describe in Section 5.2 above, Sublandlord
immediately shall return and release all security deposits made by Subtenant
relating to any portion of the Premises referenced in the Termination Notice,
based upon the relative, pro-rata square footage comprising the Premises before
and immediately after the termination.
6. TERMS OF THE OVERLEASE AND OVERSUBLEASE.
6.1 Except as herein otherwise expressly provided, and except for the
obligation to pay rent and additional rent under the Overlease and the
Oversublease (collectively, the "Overleases"), all of the terms, covenants,
conditions and provisions in the Overleases are hereby incorporated in, and made
a part of, this Sublease, and such rights and obligations as are contained in
the Overleases are hereby imposed upon the respective parties hereto; the
Sublandlord herein being substituted for the landlords in the Overleases, and
the Subtenant herein being substituted for the tenants named in the Overleases;
provided, however, that the Sublandlord herein shall not be liable for any
defaults by Overlandlord or Oversublandlord. Neither Sublandlord nor Subtenant
shall take any action that shall cause there to occur a default under the terms
of the Overleases (or either of them), nor shall either fail to take any action
the failure of which shall cause there to occur such default. If the Overleases
(or either of them) shall be terminated for any reason other than Sublandlord's
default or breach during the term hereof, then and in that event this Sublease
shall thereupon automatically terminate and Sublandlord shall have no liability
to Subtenant by reason thereof. Upon the termination of this Sublease in
accordance with the terms and conditions hereof and applicable law, whether by
forfeiture, lapse of time or otherwise, or upon the termination of Subtenant's
right to
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possession, Subtenant will at once surrender and deliver up the Premises in the
same general condition and repair as existed on the Sublease Commencement Date,
reasonable wear and tear excepted. Sublandlord and Subtenant shall promptly upon
receipt deliver to the other any and all notices received from the Overlandlord
or Oversublandlord or their agents that affect the other's rights or obligations
under the Overleases (or either of them) or this Sublease. Upon the early
termination of this Sublease as provided for herein, Sublandlord shall return to
Subtenant any unapplied prepaid rent and the Security Deposit subject to the
provisions contained herewith.
6.2 This Sublease is subject to, and Subtenant accepts this Sublease
subject to, any amendments and supplements to the Overleases hereafter made
between the parties thereto, provided that any such amendment or supplement to
the Overleases (or either of them) will not prevent or adversely affect the use
by Subtenant of the Premises in accordance with the terms of this Sublease,
increase the obligations of Subtenant or decrease its rights under the Sublease,
or in any other way materially adversely affect Subtenant.
6.3 This Sublease is subject and subordinate to the Overleases and to all
ground or underlying leases and to all mortgages that may now or hereafter
affect such leases or the real property of which the Premises are a part, and
all renewals, modifications, replacements and extensions of any of the
foregoing. This Section 6.3 shall be self-operative, and no further instrument
of subordination shall be required. To confirm such subordination, Subtenant
shall execute promptly any commercially reasonable subordination,
non-disturbance and attornment agreement or similar document that Sublandlord
and Overlandlords may request.
6.4 Subject to the terms of the Overlease, Subtenant shall have the right
of first offer on any additional space Sublandlord makes available for sublease
in the Builiding. Sublandlord shall notify Subtenant of such space and Subtenant
shall have ten (10) days from recipt of Sublandlord's notice to notify
Sublandlord of its intention to exercise this right. The rent for the sublease
space described here in Section 6.4 shall be at fair market value as determined
by Sublandlord.
7. CONDITION OF PREMISES
7.1 Sublandlord shall cause to be performed Sublandlord's Work in a
professional and workmanlike manner, consistent with the existing quality of
improvements at the Building and in accordance with all applicable statutes,
regulations, codes and laws, and to deliver the Premises "broom clean" with all
systems servicing the Premises in good working order and repair. Except for
Sublandlord's Work, Subtenant agrees to take the Premises "as is."
Notwithstanding the foregoing, if a duly authorized regulatory authority or
court of competent jurisdiction shall hereafter determine that the Premises
violate the terms of the Americans With Disabilities Act (the "ADA"), or any
other statute, regulation, code or law, and that such violation did not exist on
or before the Sublease Commencement Date, then the costs of abating the
violation results from any alteration or improvement of the Premises performed
by or at the direction of Subtenant, then the cost of abating such violation
shall be borne by Subtenant.
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7.2 Subtenant will reimburse Sublandlord for the total cost of performing
the Sublandlord's Work reflected in Exhibit B within ten (10) business days of
Sublandlord's presentation of documentation substantiating the costs incurred
therefor; provided, however, that Subtenant's obligations under this Section 7.2
shall be limited to $110,000.00 in the aggregate. Subtenant shall pay all of the
costs associated with any modifications Subtenant requests to the Sublandlord's
Work including those items reflected in Section 2 of Exhibit B and all other
modifications made to the Premises not reflected on Exhibit B. If Subtenant
undertakes modifications to the Premises while Sublandlord's Work is proceeding,
Subtenant shall coordinate the activities of its employees, contractors and
subcontractors so as not to unreasonably impede or interfere with the timely
progress of the Sublandlord's Work. If Sublandlord's Work is not completed by
the date set forth in Section 1.1(m) due in whole or in part to interference by
Subtenant's employees, contractors or subcontractors, the Sublease Commencement
Date shall be deemed to be that date upon which Landlord's Work would have been
substantially complete but for such interference.
8. USE OF PREMISES.
8.1 Subtenant agrees that the Premises shall be used only for such purposes
as are permitted under the Overlease and Oversublease.
9. CONSENT OF OVERLANDLORD AND OVERSUBLANDLORD.
9.1 This Sublease is conditioned upon the consent thereto by Overlandlord
and the Oversublandlord (collectively, the "Overlandlords"), which consent shall
be evidenced by Overlandlords' signatures appended hereto or separate consents
in such other commercially reasonable form utilized by Overlandlords for such
purposes. Subtenant shall be solely responsible for any fees or charges imposed
by Overlandlords in connection with the obtaining of such consent, which fees
and charges shall not exceed $1,000.00. Provided Overlandlords' consent does not
impose any obligations or restrictions on Subtenant materially different from
this Sublease, or otherwise materially affect the terms of this Sublease,
Subtenant shall promptly execute any commercially reasonable documents requested
by Overlandlords in order to obtain Overlandlords' approval.
9.2 Sublandlord shall use commercially reasonable efforts to obtain the
Overlandlords' approval of this Sublease, however, Sublandlord makes no
representation with respect to obtaining Overlandlords' approval of this
Sublease and, in the event that Overlandlords (or either of them) notify
Sublandlord that Overlandlords (or either of them) will not give such approval,
Sublandlord will so notify Subtenant and, upon receipt of such notification by
Sublandlord of the disapproval by Overlandlords (or either of them), this
Sublease shall be deemed to be null and void and without force or effect.
Thereafter, Sublandlord and Subtenant shall have no further obligations or
liabilities to the other with respect to this Sublease and Sublandlord
immediately shall return and release all prepaid rents and deposits made by
Subtenant. If both Overlandlords do not consent in writing to this Sublease
within sixty (60) days after the full execution and delivery of this Sublease,
the
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Subtenant may, at any time thereafter until such consent is obtained, terminate
this Sublease upon written notice to Sublandlord, whereupon Sublandlord
immediately shall return and release all prepaid rents, payments and deposits
made by Subtenant to Sublandlord in conjunction with this Sublease, with the
exception of any payments made to Sublandlord by Subtenant to reimburse
Sublandlord for improvement work performed by Sublandlord or its contractor or
agent not included in Section 1 of Exhibit B. The Commencement Date shall not
occur prior to the consents being obtained.
9.3 Except as otherwise specifically provided herein, wherever in this
Sublease Subtenant is required to obtain Sublandlord's consent or approval,
Subtenant understands that Sublandlord may be required to first obtain the
consent or approval of Overlandlord and/or Oversublandlord. If Overlandlord
and/or Oversublandlord should refuse such consent or approval, Sublandlord shall
be released of any obligation to grant its consent or approval, whether or not
such refusal, in Subtenant's opinion, is arbitrary or unreasonable.
Notwithstanding the foregoing, Sublandlord shall cooperate with Subtenant, at no
cost to Sublandlord, in seeking to obtain Overlandlords' consent or approval,
including without limitation, enforcing Sublandlord's rights under the Overlease
or Oversublease on behalf of Subtenant.
10. DEFAULT.
10.1 Except as otherwise expressly provided herein, Subtenant acknowledges
that the services to be rendered to the Premises are to be rendered by
Overlandlord and Oversublandlord Anything in this Sublease to the contrary
notwithstanding, if there exists a breach by Sublandlord of any of its
obligations under this Sublease that results solely from a corresponding breach
by Overlandlord and/or Oversublandlord under the Overlease or Oversublease,
then, and in such event, Subtenant's sole remedy against Sublandlord for such
breach shall be the right to pursue a claim (including legal action) in the name
of Sublandlord against Overlandlord or Oversublandlord (as the case may be), and
Sublandlord agrees that it will, at the Subtenant's expense, cooperate with
Subtenant in the pursuit of such claim.
10.2 Anything contained in any provisions of this Sublease to the contrary
notwithstanding, Subtenant agrees, with respect to the Premises, to comply with
and remedy any default claimed by Overlandlord and/or Oversublandlord and caused
by Subtenant, within the period allowed to Sublandlord as tenant under the
Overlease or the Oversublease (as the case may be), even if such time period is
shorter than the period otherwise allowed in the Overlease or the Oversublease
(as the case may be), due to the fact that notice of default from Sublandlord to
Subtenant is given after the corresponding notice of default from Overlandlord
and/or Oversublandlord. Sublandlord agrees to forward to Subtenant, promptly
upon receipt thereof by Sublandlord, a copy of each notice of default received
by Sublandlord in its capacity as tenant under the Overlease and/or the
Oversublease. Subtenant agrees to forward to Sublandlord, promptly upon receipt
thereof, copies of any notices received by Subtenant with respect to the
Premises from Overlandlord, Oversublandlord or from any governmental
authorities.
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10.3 If and whenever there shall occur any event of default of this
Sublease, after notice of such default and a 30 day cure prior have expired,
Sublandlord may, at Sublandlord's option, in addition to any other remedy or
right given under the Overlease or the Oversublease or by law or equity, do any
one or more of the following:
(a) Terminate this Sublease, in which event Subtenant shall
immediately surrender possession of the Premises to Sublandlord;
(b) Terminate Subtenant's right to possession of the Premises
under this Sublease without terminating the Sublease itself, by
written notice to Subtenant, in which event Subtenant shall
immediately surrender possession of the Premises to Sublandlord;
or
(c) Enter upon the Premises by force if necessary without being
liable for prosecution or any claim for damages therefore, and do
whatever Subtenant is obligated to do under the terms of this
Sublease; and Subtenant agrees to reimburse Sublandlord on demand
for any direct or indirect expenses that Sublandlord,
Oversublandlord or Overlandlord may incur in thus effecting
compliance with Subtenant's obligations under this Sublease, and
Subtenant further agrees that Sublandlord shall not be liable for
any damages resulting to Subtenant from such actions.
10.4 It is hereby expressly stipulated by Sublandlord and Subtenant that
any of the above listed actions, including, without limitation, termination of
this Sublease, termination of Subtenant's right to possession, and reentry by
Sublandlord, will not affect the obligations of Subtenant for the unexpired
Sublease Term, including the obligations to pay unaccrued monthly rentals and
other charges provided in this Sublease for the remaining portions of the
Sublease Term. Sublandlord is entitled to the same remedies as Overlandlord has
under the Overlease in addition to the above.
11. SUBLANDLORD REPRESENTATION.
Sublandlord represents (a) that it is the holder of the interest of the
Subtenant under the Oversublease, and (b) that the Oversublease is in full force
and effect and no default exists under the Oversublease. The continued validity
of the foregoing representations as of the Sublease Commencement Date is an
express condition precedent to Subtenant's obligations hereunder. In the event
that any of the foregoing representations is not true as of the Sublease
Commencement Date, Subtenant may, in its sole discretion, terminate this
Sublease whereupon Sublandlord immediately shall return and release all prepaid
rents, payments and deposits made by Subtenant. In the event Sublandlord
receives notice that it is allegedly in breach of the Overlease or Oversublease,
than Sublandlord will use commercially reasonable efforts to provide Subtenant
with prompt notice of such alleged breach.
12. BROKERS.
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12.1 Each party hereto covenants, represents and warrants to the other that
it has had no dealings or communications with any broker or agent in connection
with the consummation of this Sublease other than Aegis Realty Partners
(representing Subtenant) and The Staubach Company (representing Sublandlord),
and each party covenants and agrees to pay, hold harmless and indemnify the
other from and against any and all cost, expense (including reasonable
attorneys' fees) or liability for any compensation, commissions or charges
claimed by any other broker or agent with respect to this Sublease or the
negotiation thereof. Upon execution of this Sublease, Sublandlord shall pay each
of Aegis Realty Partners and The Staubach Company a commission equal to two and
one-half percent (2.5%) of the aggregate Base Rent to be paid during the
Sublease Term.
13. OPERATING EXPENSES/TAXES.
13.1 The Base Year shall be 2000. Normal business hours shall be 8:00 a.m.
to 6:00 p.m., Monday through Friday (excluding holidays). Subtenant shall be
solely responsible for all costs relating to its telephone service, Internet
connectivity, after hours HVAC, and any other service requested by Subtenant not
provided for in the Overleases and included in the Base Rent.
13.2 Beginning January 1, 2001, Subtenant shall be responsible for
Subtenant's Proportional Share of increases in Operating Expenses and Property
Taxes over and above the actual Operating Expenses and Property Taxes for the
Base Year as determined by the Overlandlord pursuant to the terms of the
Oversublease. For purposes of this Sublease, Subtenant's Proportional Share
shall be 15.08% of the Building. Upon Sublandlord's receipt of Oversublandlord's
statement setting forth the amount of Sublandlord's share of Operating Expenses
and Property Taxes, Sublandlord shall prepare and deliver to Subtenant a
statement setting forth the calculation of Subtenant's Proportional Share of
increases above the Base Year. The procedure for payment and reconciliation of
Operating Expenses and Property Taxes set forth in Section 4F of the Overlease
shall apply to the obligations of Subtenant hereunder, including, without
limitation, the right of audit.
14. ALTERATIONS.
14.1 In the event Subtenant is permitted to perform alterations in the
Premises hereunder, Subtenant may make no changes, alterations, additions,
improvements or decorations in, to or about the Premises without submitting
detailed plans and construction schedules to Sublandlord and Overlandlords, and
receiving Sublandlord's and Overlandlords' prior written consent to such plans.
Subtenant shall make no changes, alterations, additions, improvements or
decorations that would result in Overlandlord or Oversublandlord charging
Sublandlord for the cost of same, including any removal costs associated
therewith, and Subtenant shall comply with all laws and regulations relating to
such construction, including, but not limited to, receipt of certificates of
occupancy, permits and ADA requirements, and shall be responsible for all costs
associated therewith. Sublandlord may impose reasonable guidelines as may be
necessary to protect its occupancy and rights provided in the Overlease and
Oversublease, including placing reasonable restrictions on times when certain
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types of work may be performed in order to prevent undue intrusion and noise to
Sublandlord or other tenants in the Building.
15. SECURITY DEPOSIT.
15.1 As security for the faithful performance and observance by Subtenant
of the terms, provisions, covenants and conditions of this Sublease, Subtenant
is simultaneously herewith delivering to Sublandlord, and shall maintain through
out the Sublease Term a security deposit consisting of $80,000 in cash and a
letter of credit in the form of Exhibit C benefiting Sublandlord in the amount
of $160,000 (collectively, the "Security Deposit"). In the event that
Sublandlord applies any portion of the cash security or draws against the letter
of credit with respect to a default by Subtenant, Subtenant shall forthwith
restore the cash amount or letter of credit balance, as the case may be, so that
at all times the amount of the Security Deposit shall be not less than the
amount prescribed above. Sublandlord may apply the whole or any part of the
Security Deposit to the extent required for the payment of any sum as to which
Subtenant is in default, or for any sum that Sublandlord may expend or may be
required to expend by reason of Subtenant's default.
15.2 If, at the twelve (12) month anniversary of the Commencement Date and
every year thereafter, Subtenant has not been in default of its obligations
under the Sublease and has a net worth equal to or greater than its net worth on
the Commencement Date of the Sublease and Subtenant has more cash or cash
equivalents under its direct control than it did on the Commencement Date of the
Sublease, the letter of credit would be reduced by $40,000. If Subtenant does
not meet all three of the above mentioned criteria, the letter of credit would
remain in tact until the next anniversary of the Commencement Date when the same
evaluation criteria would be applied.
15.3 In the event that Subtenant shall fully and faithfully comply with all
of the terms, provisions, covenants and conditions of this Sublease, that
portion of the Security Deposit not used or applied by Sublandlord shall be
returned to Subtenant within thirty (30) days after the Sublease Expiration Date
and after delivery of entire possession of the Premises to Sublandlord,
Oversublandlord or Overlandlord, as the case may be.
16. QUIET ENJOYMENT.
16.1 So long as Subtenant pays all of the rent and additional rent due
under this Sublease and performs all of Subtenant's other obligations hereunder,
Subtenant shall peacefully and quietly, have, hold and enjoy the Premises,
subject, however, to the terms, provisions and obligations of this Sublease and
the Overlease.
16.2 In the event Subtenant does not completely vacate the Premises by the
Sublease Expiration Date or earlier termination of this Sublease, Subtenant
shall indemnify and hold harmless Sublandlord in respect of any and all holdover
charges or penalties imposed under the Overlease or the Oversublease upon
Sublandlord in respect of the Premises and in respect of any and all costs,
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liabilities or expenses (including attorneys' fees) suffered by Sublandlord in
respect of same, as and when such costs, liabilities or expenses are incurred.
In this regard, Subtenant shall, if requested by Sublandlord, in Sublandlord's
sole discretion, defend Sublandlord against any action or proceeding brought
against Sublandlord that arises out of said holdover.
17. NO WAIVER.
17.1 The failure of Sublandlord to seek redress for violation of, or to
insist upon the strict performance of, any covenant or condition of this
Sublease, any Overlease, or of any of the Rules and Regulations set forth or
hereafter adopted by Sublandlord, shall not prevent a subsequent act that would
have originally constituted a violation from having all the force and effect of
an original violation. The receipt by Sublandlord of rent with knowledge of the
breach of any covenant of this Sublease shall not be deemed a waiver of such
breach and no provision of this Sublease shall be deemed to have been waived by
Sublandlord unless such waiver be in writing, signed by Sublandlord. No payment
by Subtenant or receipt by Sublandlord of a lesser amount than the monthly rent
herein stipulated shall be deemed to be other than on account of the earliest
stipulated Base Rent, additional rent or other charge, nor shall any endorsement
or statement on any check or any letter accompanying any check or payment as
rent be deemed an accord and satisfaction, and Sublandlord may accept such check
or payment without prejudice to Sublandlord's right to recover the balance of
such Base Rent, additional rent or other charge, or pursue any other remedy in
this Sublease provided. No act or thing done by Sublandlord or Sublandlord's
agents during the term hereby demised shall be deemed an acceptance of a
surrender of the demised premises, and no agreement to accept such surrender
shall be valid unless in writing, signed by Sublandlord. No employee of
Sublandlord or Sublandlord's agent shall have any power to accept the keys of
the demised premises prior to the termination of the Sublease, and the delivery
of keys to any such agent or employee shall not operate as a termination of the
Sublease or a surrender of the demised premises.
18. NOTICES.
18.1 Any notice, demand or communication which, under the terms of this
Sublease or under any statute or municipal regulation, must or may be given or
made by the parties hereto shall be in writing and (a) served personally, (b) or
sent by prepaid, certified mail, return receipt requested, or (c) sent by
recognized overnight courier service, or (d) sent by facsimile. Notices served
personally shall be deemed received on the date of delivery. Notices mailed in
accordance herewith shall be deemed received on the date the U.S. Post Office
receipts delivery or refusal to accept delivery. Notices delivered by recognized
courier service shall be deemed received on the next business day following
deposit with the courier service. Notices sent by facsimile shall be deemed
received upon electronic confirmation of receipt of transmission provided a copy
of the same also is mailed by first class mail on the same date. If a notice is
received or deemed received on a Saturday, Sunday or legal holiday, it shall be
deemed received on the next business day.
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The address of each party shall be that address set forth in this Sublease.
Either party, however, may designate such new or other address to which such
notices, demands or communications thereafter shall be given, made or mailed by
notice (given in the manner prescribed herein). Any such notice, demand or
communication shall be deemed given or served, as the case may be, on the date
of the posting hereof. In the event Subtenant's address is not set forth herein,
notice to Subtenant shall be deemed sufficient if sent to the Premises.
19. MISCELLANEOUS.
19.1 Where applicable, Subtenant shall be responsible for all incidental
costs incurred as a result of this Sublease not otherwise allocated to
Sublandlord or Subtenant, including, but not limited to, security cards, keys,
parking cards, and the like.
19.2 This Sublease may not be changed orally, but only by an agreement in
writing signed by the party against whom enforcement of any waiver, change,
modification or discharge is sought.
19.3 This Sublease shall not be binding upon Sublandlord unless and until
it is signed by Sublandlord, delivered to Subtenant, and approved and consented
to by both Overlandlords. This Section 19.3 shall be not deemed to modify the
provisions of Section 9, hereof.
19.4 This Sublease constitutes the entire agreement between the parties,
and all representations and understandings have been merged herein.
19.5 This Sublease shall inure to the benefit of all of the parties hereto,
their successors and (subject to the provisions hereof) their assigns.
19.6 Subtenant shall have the exclusive right throughout the Sublease Term,
as between Subtenant and Sublandlord, to its proportionate share of the
non-reserved parking spaces that Sublandlord is allocated under the
Oversublease.
19.7 During the Sublease Term, Subtenant shall have a right of first offer
to lease any additional space that Sublandlord presently occupies in the
Building that Sublandlord determines to sublease. Sublandlord will give
Subtenant seven days written notice prior to subleasing any space in the
Building with respect to which Subtenant has a right of first offer under this
section. The notice will specify the space proposed to be sublet, the date upon
which the prospective sublessee could take possession, and the applicable rent
and additional payments pertaining to the space. Subtenant shall have the
exclusive right during such ten (10) -day period to sublease the entire space
(but not a portion thereof) on the terms set forth in Sublandlord's notice by
delivering to Sublandlord a written notice stating that Subtenant accepts the
space. Upon Subtenant's exercise of its right of first offer as set forth above,
this Sublease shall be deemed to be modified effective as of the date of
possession indicated in Sublandlord's notice and the terms and conditions in
this Sublease shall apply to the additional space in all respects except that
the rent and additional payments shall be as set forth in Sublandlord's initial
notice. Subtenant's right of first offer is not assignable and is
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subject to Subtenant's performance of all of its obligations hereunder. Once
given, Subtenant's exercise of its right of first offer shall be irrevocable.
19.8 If either party to this Sublease initiates any suit or other formal
legal proceeding to preserve or enforce its rights hereunder, then the
prevailing party is such proceeding (as determined by the court or other
adjudicating authority) shall be entitled to receive from the other party to
such proceeding all reasonable fees and costs incurred in connection therewith,
including reasonable attorneys' fees.
19.9 Subtenant, at its sole cost and expense and subject to the approval of
Overlandlords, shall have the right to install signage on the Building as well
as a monument sign next to the Building, consistent with the signage of other
Building tenants.
19.10 In the event Subtenant fails to vacate the Premises at the expiration
of the Sublease Term in accordance with the terms of the Overlease, the
provision of Paragraph 22 of the Overlease shall apply, except that the
reference to "one hundred twenty-five percent (125%)" therein shall be changed
to "one hundred fifty percent (150%)" for the purposes of this Sublease.
19.11 Subtenant agrees that it will not, without the prior written consent
of Sublandlord, solicit or hire any Sublandlord employee, or induce such
employee to leave Sublandlord's employment, directly or indirectly, during the
Sublease Term and for a period of twelve months after the expiration of the
Sublease Term.
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IN WITNESS WHEREOF, the parties have hereunto set their hands and seals on
the day and year first above written.
Subtenant
My Turn.com
By: /s/ Paul Danner
---------------
Name: Paul Danner
Title: EVP
Sublandlord
CyberCash, Inc.
By: /s/ Arthur Pumo
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Name: Arthur Pumo
Title: EVP, HR
ACKNOWLEDGED AND AGREED:
Overlandlord
Alameda Real Estate Investments Vintage Properties
By:_____________________________________
Name:
Title:
Oversublandlord
Computer Associates International, Inc.
By:_____________________________________
Name:
Title:
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EXHIBIT B
Work Letter
GENERAL
As per Section 7.2 of the Sublease, Sublandlord shall provide all design, labor,
supervision and materials necessary to demise the floor as depicted in Exhibit "
A " (The "Work") to be reimbursed by Subtenant with a total cost not to exceed
$110,000. The Work shall be performed in a timely, professional and workmanlike
manner, in accordance with all applicable statutes, ordinances, rules, and laws,
including, without limitation, all local and national building codes. The Work
generally is described as follows:
- Construct rated common area corridor o approximately 100 feet in
length for lavatory access. Corridor to include double door
access to Sub landlord Reception area and 3 single doors for Sub
tenant access and Fire emergency access.
- Construct tenant-demising partition of approximately 35 feet in
length between open office areas 343 & 342 with separate
entrances for Sub landlord and Subtenant. Demising partition to
extend three (3) feet above suspended ceiling.
- Construct Tenant demising partition of approximately eight (8)
feet in length between open office area 344 and Sub landlord
Reception area, 300. Demising partition to extend three (3) feet
above suspended ceiling.
- Associated Electrical work to include additional light fixtures,
switching modifications and elimination of shared circuits
- Install all necessary floorcoverings, paint, wallcoverings and
finish work to match existing.
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