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EXHIBIT 10.10
SUBLEASE
PORTION OF THIRD FLOOR
0000 XXXXXXX XXXXXX, XXX XXXXX, XXXXXXXXXX
THIS SUBLEASE ("Sublease"), dated April 23, 1999, for reference purposes
only, is entered into by and between INKTOMI CORPORATION, a Delaware corporation
("Sublandlord"), and EPIPHANY MARKETING SOFTWARE, INC., a Delaware corporation
("Subtenant").
RECITALS
A. Sublandlord leases and is in possession of premises consisting of
approximately 32,264 square feet of rentable area, as shown cross-hatched on the
floor plan attached as Exhibit 1 to this Sublease (the "Premises") located on
the third floor of the office building at 0000 Xxxxx Xxxxxxx Xxxxxx, Xxx Xxxxx,
Xxxxxxxxxx (the "Building"), pursuant to that certain Office Lease dated July
31, 1997, as amended by the First Amendment to Office Lease dated July 16, 1998
and the Second Amendment to Office Lease dated as of January 31, 1999
(collectively, the "Master Lease"), between Sublandlord, as Lessee, and Norfolk
Atrium, a California limited partnership, as Lessor ("Landlord").
B. Sublandlord desires to sublease the Premises to Subtenant, and
Subtenant desires to sublease the Premises from Sublandlord, upon the terms and
conditions provided for herein.
C. Under Addendum 1 to the Master Lease, effective March 1, 2000, the
Premises demised to Sublandlord shall be expanded to include additional space
commonly known as Suite 115 (the "Additional Space") in the Building. The
Additional Space is not subject to this Sublease. References herein to
"Premises" shall mean only the Premises shown on Exhibit 1 to this Sublease.
D. Capitalized terms used in this Sublease which are not otherwise
defined herein shall have the same meanings given them in the Master Lease.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, Sublandlord and Subtenant covenant and agree as follows:
AGREEMENT
1. DEMISE AND USE.
(a) Sublandlord hereby subleases the Premises to Subtenant, and
Subtenant hereby takes and hires the Premises from Sublandlord, on and subject
to the terms, covenants and conditions set forth in this Sublease. Subtenant
shall have the right, appurtenant to the demise of the Premises, to the use of
113 non-exclusive parking spaces in the parking lot serving the Building, but
only to the extent the same are provided by Landlord pursuant to the Master
Lease.
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(b) Under the Master Lease the Premises are to be used solely for
general office use. Subtenant represents and warrants to Sublandlord that its
proposed use of the Premises conforms to the use restrictions embodied in the
Master Lease.
2. TERM.
(a) Subject to Paragraph 2(e) below, the term of this Sublease
(the "Sublease Term") shall commence on the date (the "Commencement Date") which
is the later of (i) September 1, 1999, and (ii) the date on which all the
following have occurred: (A) Landlord has given its consent to this Sublease;
(B) Sublandlord has vacated the Premises and delivered possession of the
Premises to Subtenant in the condition required by this Sublease; and (C)
Subtenant's Early Possession Period, as described in Paragraph 2(d), has
expired. Sublandlord shall use commercially reasonable efforts to cause the
Commencement Date to occur by September 1, 1999.
(b) The parties anticipate that the Commencement Date will occur
on or about September 1, 1999. However, if for any reason the Commencement Date
does not occur until after September 1, 1999, Sublandlord shall not be liable
for such delay, nor shall such delay in the Commencement Date affect the
validity of this Sublease or the obligations of Subtenant hereunder (except as
hereinafter provided) or extend the Sublease Term. Notwithstanding the
foregoing: (i) if Subtenant's Early Possession Period does not occur by
September 1, 1999, the date Subtenant is otherwise obliged to commence payment
of Rent shall be delayed by one day for each day that the commencement of
Subtenant's Early Possession Period is delayed beyond September 1, 1999; and
(ii) if Subtenant's Early Possession Period does not occur by September 15,
1999, Subtenant shall have the right to terminate this Sublease by delivering
written notice thereof to Sublandlord. Unless exercised prior thereto,
Subtenant's right of termination hereunder shall expire upon the delivery of the
Premises to Subtenant. Sublandlord shall keep Subtenant informed regarding the
status of construction of Sublandlord's new facility and the anticipated timing
for Sublandlord's vacation of the Premises.
(c) The Sublease Term shall end on the earliest of: (i) October
31, 2003; (ii) the date on which the Master Lease terminates for any cause
whatsoever; or (iii) the date of earlier termination of this Sublease as
provided herein.
(d) After Sublandlord has obtained Landlord's consent to this
Sublease and Sublandlord has vacated the Premises, Sublandlord shall tender
possession of the Premises to Subtenant for a period of fourteen (14) days
preceding the Commencement Date (the "Early Possession Period"). All terms
covenants and conditions of this Sublease shall apply during the Early
Possession Period except that Subtenant shall be not be required to pay any
Rent. The Early Possession Period is intended to allow Subtenant to ready the
Premises for its use (subject to first obtaining all required consents and
approvals) and shall not advance the scheduled expiration of the Sublease Term.
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(e) If Sublandlord is prepared to vacate and deliver the Premises
for commencement of the Early Possession Period prior to August 16, 1999,
Sublandlord shall so notify Subtenant. In such case, Subtenant shall have the
right, but not the obligation, to accept delivery and start the Early Possession
Period early. In such case, the Commencement Date shall be the fifteenth (15th)
day after the start of the Early Possession Period. The advancement of the
Commencement Date under this Paragraph 2(e) shall not alter the expiration of
the Sublease Term under Paragraph 2(c).
3. RENT. Subtenant shall pay rent for the Premises consisting of basic
rental ("Basic Rent") plus additional rental ("Additional Rent"), all as
provided below. Basic Rent, Additional Rent, and any other charges due under
this Sublease are referred to collectively as "Rent."
(a) Beginning on the Rent Commencement Date and continuing on or
before the first day of each succeeding month, Subtenant shall pay to
Sublandlord in advance, and without deduction or offset, monthly Basic Rent as
follows:
PERIOD BASIC RENT
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Commencement Date to the date immediately $103,890.08 per month
preceding the first anniversary of the
Commencement Date
First anniversary of the Commencement Date $107,006.78 per month
through the date immediately preceding the
second anniversary of the Commencement Date
Second anniversary of the Commencement Date $110,216.99 per month
through the date immediately preceding the third
anniversary of the Commencement Date
Third anniversary of the Commencement Date $113,523.50 per month
through October 31, 2003
(b) Beginning on the first anniversary of the Commencement Date
and continuing for the remainder of the Sublease Term, Subtenant also shall pay,
as Additional Rent, all Excess Expenses attributable to the Premises. For this
purpose, "Excess Expenses" shall mean all amounts payable as Project Taxes and
Operating Expenses in respect of the Premises under Article 7(b) of the Master
Lease in excess of the amount thereof Sublandlord is obligated to pay for the
first twelve (12) months of the Sublease Term (the "Base Sublease Expenses").
The Base Sublease Expenses shall be determined as follows: (i) the total Project
Taxes and Operating Expenses under Article 7(b) of the Master Lease for the
calendar year 1999 shall be multiplied by a fraction, the numerator of which is
the number of days of the Sublease Term falling within the calendar year 1999,
and the denominator of which is 365; (ii) the total Project Taxes and Operating
Expenses under Article 7(b) of the Master
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Lease for the calendar year 2000 shall be multiplied by a fraction, the
numerator of which is the number of days elapsed from January 1, 2000 to the
date immediately preceding the first anniversary of the Commencement Date, and
the denominator of which is 365; and (iii) the sum of the products achieved
under clauses (i) and (ii) shall be the Base Sublease Expenses.
(c) Where items of Additional Rent due under the Master Lease are
payable on a monthly basis, Additional Rent shall be paid to Sublandlord as and
when Basic Rent is paid. Where items of Additional Rent are billed from time to
time to Sublandlord by Landlord, such Additional Rent shall be paid by Subtenant
to Sublandlord within fifteen (15) days after Subtenant's receipt of an invoice
therefor. Where Additional Rent is payable on an estimated basis pursuant to the
Master Lease, the Additional Rent due hereunder shall be adjusted between the
parties (with appropriate reimbursements or additional payments) within twenty
(20) days after the actual Additional Rent due under the Master Lease has been
determined and notice thereof has been delivered to Subtenant. All Rent shall be
paid to Sublandlord at the address specified for Sublandlord below, or to such
other person or to such other place as Sublandlord may from time to time
designate in writing.
(d) Sublandlord shall pay all Base Rent, Additional Rent and
other monetary amounts required to be paid under the Master Lease (collectively,
"Underlying Rent") on or before such amounts become due and payable thereunder.
If Sublandlord fails to make any payment of Underlying Rent as and when required
under the Master Lease, Subtenant shall have the right, but not the obligation,
to make such payments on behalf of Sublandlord, in which event Subtenant shall
have the right to offset any amounts so paid against Rent payable under this
Sublease.
(e) In the event of any casualty or condemnation affecting the
Premises, Rent payable by Subtenant shall be abated as provided in Articles 21
and 24 of the Master Lease, as incorporated herein; provided, however, that such
right to abatement of Rent (as distinguished from the amount of any such
abatement) must be recognized by Landlord under the Master Lease.
4. SECURITY DEPOSIT.
(a) On execution of this Sublease, Subtenant shall pay cash to
Sublandlord in the amount of Five Hundred Thousand Dollars ($500,000) (the
"Sublease Security Deposit"), as security for the full and faithful performance
of Subtenant's obligations under this Sublease. If Subtenant defaults in its
obligations under this Sublease after the expiration of applicable notice and
cure periods (if any), Sublandlord may use or apply all or any part of the
Sublease Security Deposit to cure the default or to compensate Sublandlord for
its damages and expenses resulting from the default, in which event, Subtenant
shall promptly deposit with Sublandlord the sum necessary to restore the
Sublease Security Deposit to the full amount set forth above. Upon termination
of this Sublease, Sublandlord shall return the balance of the Sublease Security
Deposit to Subtenant, less the amount of the Furniture Purchase Price payable by
Subtenant under Paragraph 17 below. Sublandlord shall be entitled to commingle
the Sublease Security Deposit with its general funds. Subtenant shall have no
right to interest on the Sublease Security Deposit.
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(b) In lieu of the cash to be posted by Subtenant as the Sublease
Security Deposit under Paragraph 4.2 of this Sublease, Subtenant may deliver to
Sublandlord (either upon execution of this Sublease or thereafter when Subtenant
is not in default hereunder, after expiration of any applicable notice and cure
period) a clean, irrevocable letter of credit (the "Letter of Credit") issued in
favor of Sublandlord by a reputable bank reasonably satisfactory to Sublandlord
(the "Issuing Bank"). The Letter of Credit shall: (i) have a maturity date not
less than one (1) year from the date of issuance; (ii) require the Issuing Bank
to provide notice to Sublandlord of the scheduled expiration date not less than
thirty (30) days nor more than forty-five (45) days before the scheduled
expiration of the Letter of Credit; (iii) permit full or partial drawings to be
made by Sublandlord at any time before expiration; (iv) require the Issuing Bank
to pay on the Letter of Credit upon Sublandlord's presentation thereof, together
with a sight draft and a statement signed by Sublandlord certifying that, under
the provisions of this Sublease, Sublandlord is entitled to draw upon the Letter
of Credit; and (v) be assignable by Sublandlord to any entity which may succeed
to Sublandlord's interest under this Sublease. If the Letter of Credit is due to
expire before the date the Sublease Term is scheduled to end and the Issuing
Bank has not issued and Subtenant has not delivered to Sublandlord, at least
thirty (30) days before the expiration of the Letter of Credit, a new Letter of
Credit meeting all of the requirements stated above (except that the expiration
date of the new Letter of Credit need not extend beyond the scheduled expiration
of the Sublease Term), then Sublandlord may draw down the entire amount of the
expiring Letter of Credit and retain such amount as the cash Sublease Security
Deposit under Paragraph 4.2 above; provided that Subtenant may thereafter
deliver to Sublandlord a new Letter of Credit to replace the expired one and,
provided Tenant is not then in default (after expiration of any applicable
notice and cure period), Sublandlord will accept the new Letter of Credit and
refund to Subtenant the cash Sublease Security Deposit. If Subtenant defaults in
the performance of its obligations under this Sublease (after expiration of any
applicable notice and cure period), Sublandlord shall have the right to draw
down the Letter of Credit, in whole or in part, to the extent required in
Sublandlord's reasonable judgment to cure Subtenant's default or to compensate
Sublandlord for all damages resulting from Subtenant's default, and to use,
retain or apply the funds thereupon obtained by Sublandlord in the manner
permitted under Paragraph 4.2 above. If Sublandlord draws down the Letter of
Credit and uses, retains or applies all or a portion of the funds received
therefrom to cure Subtenant's default or to compensate Sublandlord for damages
resulting from Subtenant's default, Subtenant shall, within ten (10) days after
written demand, either cause the Issuing Bank to restore the Letter of Credit to
the full amount or deposit with Sublandlord cash in an amount sufficient to
restore the funds held by Sublandlord (together with any remaining balance of
the Letter of Credit) to the full amount of the Sublease Security Deposit. If
Subtenant delivers to Sublandlord a new Letter of Credit to replace the one
Sublandlord has drawn down, provided Tenant is not then in default (after
expiration of any applicable notice and cure period), Sublandlord will accept
the new Letter of Credit and refund to Subtenant the cash Sublease Security
Deposit.
5. CONDITION OF PREMISES.
(a) Sublandlord shall, upon tender of possession, remove from the
Premises all personal property other than the Furniture and deliver the Premises
in a broom clean condition, with all improvements for which Sublandlord is
responsible under the Master Lease in good operating condition. Except as
otherwise expressly provided in this Sublease, Sublandlord subleases the
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Premises to Subtenant, and Subtenant agrees to accept the Premises, in their
presently existing condition, "AS-IS" and "WITH ALL FAULTS," and Sublandlord
shall have no duty to perform any repairs, alterations or additions to the
Premises to ready the same for Subtenant's occupancy. Subtenant shall be deemed
conclusively to have acknowledged that the Premises are in the condition
required by this Sublease unless Subtenant gives written notice to Sublandlord
during the Early Possession Period describing in reasonable detail any
conditions in the Premises that Subtenant contends are not as required by this
Sublease.
(b) At the beginning of the Early Possession Period, the Premises
will be in good condition and all Building operating systems serving the
Premises will be in good working condition, including, but not limited to, the
heating, ventilating, air conditioning, electrical, roof and plumbing systems,
and the Premises shall otherwise be in the same condition as exists on the date
of this Sublease. Subtenant shall notify Sublandlord in writing of any
malfunctioning of the Building systems and Sublandlord shall use commercially
reasonable efforts to cause Landlord to undertake corrective action.
(c) As used herein, the "ADA" refers to the Americans With
Disabilities Act of 1990, as amended, and state and local laws and ordinances
governing accessibility to public accommodations by disabled persons. Subtenant
has engaged a licensed architect to survey the Premises for compliance with the
ADA and Subtenant's architect has identified the work specified in Exhibit 2 to
this Sublease as being necessary to bring the Premises into compliance with the
ADA. Prior to the commencement of the Early Possession Period Sublandlord shall
complete the work described in Exhibit 2. As between Sublandlord and Subtenant,
Subtenant shall be responsible for any further work as may be required during
the Sublease Term to comply with the ADA.
6. SUBORDINATION TO MASTER LEASE. This Sublease shall be subject and
subordinate to all of the terms, covenants and conditions of the Master Lease,
and Landlord shall have all rights in respect of the Master Lease and the
Premises as set forth therein. Those obligations which are imposed on
Sublandlord under the Master Lease and agreed to be performed by Subtenant under
this Sublease are referred to as the "Transferred Obligations." Without limiting
the specific covenants of this Sublease, Subtenant shall at all times observe
and perform the Transferred Obligations in respect to the Premises so as to
avoid any default under the Master Lease.
7. INCORPORATION OF MASTER LEASE.
(a) Subject to the exclusions, limitations and modifications set
forth in this Sublease, the terms, covenants and conditions of the Master Lease
are incorporated in this Sublease by reference so that, except to the extent
that they are excluded, limited or otherwise modified by the provisions of this
Sublease for the purpose of incorporation by reference, each and every term,
covenant and condition of the Master Lease binding or inuring to the benefit of
the Landlord thereunder shall, in respect of this Sublease, bind or inure to the
benefit of Sublandlord, and each and every term, covenant and condition of the
Master Lease binding or inuring to the benefit of the Lessee thereunder shall,
in respect of this Sublease, bind or inure to the benefit of Subtenant, with the
same force and effect as if such terms, covenants and conditions were completely
set forth in this
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Sublease, and as if the words "Lessor" and "Lessee," or words of similar import,
wherever the same appear in the Master Lease, were construed to mean,
respectively, "Sublandlord" and "Subtenant" in this Sublease, and as if the word
"Lease," or words of similar import, wherever the same appear in the Master
Lease, were construed to mean this "Sublease." Subtenant represents that it has
examined, read and is thoroughly familiar with the terms, covenants and
conditions of the Master Lease, and accepts those terms, covenants and
conditions and obligations thereof which have been incorporated herein.
(b) The following provisions of the Master Lease are not
incorporated as a part of this Sublease and are expressly excluded herefrom
(except insofar as the same may be referenced elsewhere in this Sublease for
purposes of identification or definition of certain matters): Articles 1 through
5, the first grammatical paragraph only of Section 13(f), Article 53, Addenda 1
through 10, Addendum 16, Exhibit C and the First Amendment.
(c) The following limitations shall apply to the interpretation
and enforcement of the incorporated terms, covenants and conditions of the
Master Lease:
(i) Wherever the term "Premises" appears in the Master
Lease, it shall be incorporated into this Sublease only to the extent it refers
to the Premises demised by this Sublease and shall not apply to the Additional
Premises demised by the Master Lease.
(ii) The time limits contained in the Master Lease for the
giving of notices, making of demands or performing of any act, condition or
covenant on the part of the Lessee thereunder, or for the exercise by the Lessee
thereunder of any right, remedy or option, are changed for the purposes of
incorporation herein by reference by shortening the same in each instance by two
(2) business days, so that in each instance Subtenant shall have two (2)
business days less time to observe or perform hereunder than Sublandlord has as
the Lessee under the Master Lease. Notwithstanding the foregoing, the time limit
in the eighteenth line of Article 12 shall be changed to two (2) days, and the
time limit in the sixth line of Article 40(a) shall remain three (3) business
days.
(iii) Any non-liability, release, indemnity or hold
harmless provision, and any provisions pertaining to waiver of subrogation
rights and or the naming of a party under an insurance policy, in the Master
Lease for the benefit of Landlord which is incorporated herein by reference,
shall be deemed to inure to the benefit of Sublandlord and Landlord, for the
purpose of incorporation by reference in this Sublease.
(iv) Any right of the Landlord for access or inspection
and any right of the Landlord under the Master Lease to do work in the Premises
or in the Building or in the Common Area shall be deemed to inure to the benefit
of both Sublandlord and the Landlord, for the purpose of incorporation by
reference in this Sublease.
(v) If any of the express provisions of this Sublease
conflict with any of the provisions incorporated by reference such conflict
shall be resolved in every instance in favor of the express provisions of this
Sublease. If any incorporated provision of the Master Lease cross-
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references a provision of the Master Lease which is not incorporated in this
Sublease, such cross-referenced Master Lease provision shall be disregarded
except to the extent required for a fair and equitable interpretation of the
incorporated Master Lease provision.
(vi) Any obligation of Sublandlord which is contained in
this Sublease by the incorporation by reference of the provisions of the Master
Lease shall be observed or performed by Sublandlord using reasonable good faith
efforts to cause the Landlord under the Master Lease to observe and/or perform
the same, and Sublandlord shall have a reasonable time do so after written
notice from Subtenant specifying with reasonable particularity the deficiency in
Landlord's performance under the Master Lease. Sublandlord shall not be required
to furnish, supply, install, maintain or repair anything under any provision of
the Master Lease. Subtenant shall not in any event have any rights in respect of
the Premises greater than Sublandlord's rights under the Master Lease, and
notwithstanding any provision to the contrary, as to obligations that pertain to
the Premises and Common Area and are part of this Sublease by the incorporation
by reference of provisions of the Master Lease, Sublandlord shall not be
required to make any payment or to perform any obligation, and Sublandlord shall
have no liability to Subtenant for any matter whatsoever, except for
Sublandlord's obligation to pay the Underlying Rent and to use reasonable good
faith efforts, upon request of Subtenant, to cause the Landlord to observe
and/or perform Landlord's obligations under the Master Lease. Sublandlord shall
not be responsible for any failure or interruption, for any reason whatsoever,
of the services or facilities that may be appurtenant to or supplied at the
Building by Landlord. Subtenant hereby expressly waives the provisions of any
statute, ordinance or judicial decision which would give Subtenant rights to
make repairs at the expense of Sublandlord. The foregoing notwithstanding: (A)
Sublandlord will furnish to Subtenant, promptly after receipt of same from
Landlord, a copy of the Lessor's Statement called for in the fourth grammatical
paragraph of Article 7(b) of the Master Lease, and credit any overpayment of
Excess Expenses as provided therein to the extent such overpayment of Excess
Expenses has been credited by Landlord to Sublandlord; (B) under the second
grammatical paragraph of Article 8(b) of the Master Lease, Sublandlord will give
notice within thirty (30) days after receipt of Subtenant's written notice of
objection whether Sublandlord will enforce the use restriction or permit a
change in use, as contemplated therein; (C) Sublandlord and Subtenant each agree
to be bound to the other by the waiver of subrogation in Article 15 of the
Master Lease; (D) Sublandlord and Subtenant each agree to be bound to the other
under Article 43 of the Master Lease; (E) the two (2) grace periods in Addendum
19 of the Master Lease shall be applicable to Subtenant's monetary obligations
under this Sublease; and (F) Sublandlord also shall be bound by the restrictions
set forth in Addendum 20 to the Master Lease.
(vii) With respect to any approval or consent required to
be obtained from Landlord under the Master Lease, such approval or consent must
be obtained from both Landlord and Sublandlord. Any approval or consent required
of Sublandlord conclusively shall be deemed reasonably withheld if approval or
consent also is required of the Landlord, and Landlord withholds Landlord's
approval or consent.
(d) Subtenant shall fully perform all of the Transferred
Obligations and shall indemnify, defend, protect, and hold harmless Sublandlord
from any and all liability, damages,
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liabilities, claims proceedings, actions, demands and costs (including
reasonable attorneys' fees) resulting, directly or indirectly, from Subtenant's
failure to perform the Transferred Obligations.
(e) Without limiting the generality of the foregoing, for
purposes of incorporating the terms, covenants and conditions of the Master
Lease into this Sublease, the following provisions of the Master Lease are
amended as follows:
(i) Under Article 7 and Addendum 11 of the Master Lease,
Sublandlord shall be entitled to rely on any statement or estimate from Landlord
regarding the calculation and payment of Additional Rent (including, without
limitation, any calculation of Lessee's Percentage Share of Excess Expenses) and
shall be under no duty to verify the same.
(ii) Under Article 16 and Addendum 16 of the Master Lease,
Sublandlord shall only be required, after written request by Subtenant, to use
reasonable good faith efforts to cause Landlord to maintain the insurance
required of Landlord.
(iii) Under Article 11 of the Master Lease, Sublandlord
shall only be required, after written request by Subtenant, to use reasonable
good faith efforts to cause Landlord to perform the maintenance and repair
obligations thereunder.
(iv) Under Article 17 and Addendum 17 of the Master Lease,
Sublandlord shall only be required, after written request by Subtenant, to use
reasonable good faith efforts to cause Landlord to furnish the utilities and
services called for thereunder.
(v) Under Article 13 and Addendum 15 of the Master Lease,
all profit or additional consideration from any assignment or sublease shall be
paid to Landlord, and the determination of the amount to be paid shall be
determined in accordance with the Master Lease.
(vi) Under Article 28 of the Master Lease, upon surrender
of the Premises at the expiration of the Sublease Term or the earlier
termination of this Sublease, Subtenant shall return the Premises to Sublandlord
in the same condition as existed upon delivery of the Premises to Subtenant,
prior to the construction of any alterations or improvements as may be made by
Subtenant; provided, however, that Subtenant shall not be required to remove any
such alterations or improvements if Landlord agrees in writing to waive its
right to require Sublandlord to remove such any alterations or improvements upon
surrender of the Premises to Landlord.
(vii) Under Article 19 of the Master Lease, the Rent
payable during any holding over without the consent of Sublandlord and Landlord
shall be one hundred fifty percent (150%) of the Basic Rent.
(viii) Under Article 33 of the Master Lease, Sublandlord's
notice address shall be as provided adjacent to Sublandlord's signature below,
or at such other address as Sublandlord may from time to time designate in
writing; and Subtenant's notice address shall be as provided adjacent to
Subtenant's signature below, provided that after Subtenant takes occupancy of
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the Premises, notices shall be sent to Subtenant at the address of the Premises.
Any notice required or permitted under this Sublease shall be deemed to have
been delivered upon actual receipt or upon refusal of delivery. Notices under
this Sublease shall be permitted to be transmitted by overnight courier service,
in addition to the other methods permitted under the Master Lease. Neither
Sublandlord nor Subtenant shall be required to send facsimile copies of notices
which are personally delivered or mailed.
(ix) For purposes of clarification, and without limiting
the general intentions expressed elsewhere in this Sublease, it is agreed that:
(A) references to "Base Rent" and "Rentals" shall be deemed to refer,
respectively, "Basic Rent" and "Rent;" (B) references in the following articles
and sections of the Master Lease to "Lessor" shall be deemed to refer to
"Landlord" only (except that Sublandlord also shall enjoy the full benefit of
any exculpation, waiver, release, indemnity or like provisions contained
therein): 7(b)(i), 7(b)(ii), 16(d), 17, 18, 20 (the fifth sentence only), 21, 24
(except the last sentence of the first paragraph), 26, 29 (the second and third
sentences only), 30, 44, 54, 56 and 63 ), Addendum 18 and Exhibit D; (C) with
respect to Subtenant's indemnity obligation under the third paragraph of Article
14 of the Master Lease, the exception thereto for active negligence or willful
misconduct shall apply to both Landlord and Sublandlord (meaning that the active
negligence or willful misconduct of one shall affect Subtenant's indemnity
obligation to both); (D) Subtenant's obligation to pay Excess Expenses shall be
limited to its obligation to pay Excess Expenses as set forth in Paragraph 3(b)
of this Sublease; (E) Subtenant's obligation pay taxes allocable to the Tenant
Improvements shall be limited to the extent to which such taxes exceed the
amount payable therefor during the first twelve (12) months of the Sublease
Term, and no such taxes shall be payable by Subtenant until after the first
anniversary of the Commencement Date; (F) Sublandlord shall not unreasonably
withhold its consent to a change in the use of the Premises (including, without
limitation, in connection with a Transfer), provided Landlord unconditionally
consents to such change in use; (G) Subtenant's obligations under Article 9 of
the Master Lease shall be subject to Paragraph 5(c) of this Sublease; (H)
provided Landlord unconditionally consents thereto, Sublandlord shall not
unreasonably withhold its consent to any Alterations described in the last
paragraph of Article 10(a); (I) Sublandlord's rights to enter the Premises shall
be limited to reasonable entry to inspect the Premises and cure defaults of
Subtenant under this Sublease, and Sublandlord shall not be entitled to retain a
key to the Premises; (J) Sublandlord shall not exercise any rights of
termination under Article 24 except with the prior written consent of Subtenant;
(K) the provisions of Article 42 of the Master Lease shall not apply to
Sublandlord's performance of its obligations as Lessee under the Master Lease;
(L) upon written request by Subtenant, and at Subtenant's sole expense,
Sublandlord shall conduct such inspection of Landlord's books and records as is
allowed under Article 7(b) of the Master Lease and share the results of such
inspection with Subtenant; and (M) Subtenant shall not be required to obtain the
prior consent of Sublandlord to construct Alterations of the type described in
Addendum 12 to the Master Lease.
8. ASSIGNMENT AND SUBLETTING. Subtenant shall not assign this Sublease
or sublet all or any part of the Premises, or hypothecate or otherwise encumber
its interest under this Sublease, or allow any other person or entity to use or
occupy all or any part of the Premises, except with the prior written consent of
Sublandlord. Sublandlord will not unreasonably withhold its consent to an
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assignment of this Sublease or a further subletting of all or any part of the
Premises; provided, however, that it shall be conclusively deemed reasonable for
Sublandlord to withhold such consent where Landlord fails or refuses to give any
corresponding consent required under the Master Lease. Notwithstanding the
foregoing, Subtenant shall have the right to assign or sublet any part or all of
the Premises to (a) an entity controlling, controlled by, or under common
control with, Subtenant, (b) an entity which results from a merger,
consolidation or other non-bankruptcy business reorganization of Subtenant or
(c) an entity which acquires all or substantially all of the stock or assets of
Subtenant as a going concern, provided, however, that prior to any assignment or
subletting under clauses (a) through (c) above, Subtenant must give to
Sublandlord written notice of Subtenant's intent to effect such transfer and
Landlord must have granted its unconditional consent thereto in writing.
9. BROKERAGE. Sublandlord has been represented in the negotiation of
this Sublease by BT Commercial and Subtenant has been represented by CRESA
Partners, LLC, (formerly known as Catalyst Real Estate Group). Subject to
obtaining Landlord's consent to this Sublease, Sublandlord shall pay a
commission pursuant to a separate agreement between Sublandlord and BT
Commercial, which shall in turn compensate CRESA Partners. Each party warrants
and represents to the other that such party has not retained the services of any
real estate broker, finder or any other person (other than the brokers named in
the two preceding sentences) whose services would form the basis for any claim
for any commission or fee in connection with this Sublease or the transactions
contemplated hereby. Each party agrees to save, defend, indemnify and hold the
other party free and harmless from any breach of its warranty and representation
as set forth in the preceding sentence, including the other party's attorneys'
fees.
10. SUBLANDLORD'S OBLIGATIONS. So long as Subtenant is not in default
under this Sublease (after the expiration of any applicable notice or cure
period), Sublandlord shall observe, perform and discharge those obligations
which are imposed on the Lessee under the Master Lease and are not Transferred
Obligations under this Sublease. However, except as expressly provided in this
Sublease, Sublandlord shall have no obligations to Subtenant with respect to the
Premises or the performance by Landlord of any obligations of the Lessor under
the Master Lease.
11. EARLY TERMINATION OF MASTER LEASE.
(a) If the Master Lease terminates prior to the scheduled
expiration of the Sublease Term, Sublandlord shall have no liability to
Subtenant unless termination of the Master Lease is due to Sublandlord's default
thereunder, and such default is not caused by Subtenant's failure to timely and
fully observe, perform and discharge its obligations under this Sublease
(including, without limitation, the Transferred Obligations) or Sublandlord's
material default under this Sublease. Where the Master Lease grants Sublandlord
any discretionary right to terminate the Master Lease, whether due to casualty,
condemnation, or otherwise, Sublandlord shall exercise such right only with the
prior written consent of Subtenant and, subject only to such consent
requirement, the termination of this Sublease as a consequence of Sublandlord's
exercise of any right to terminate the Master Lease shall not lead to any
liability on Sublandlord's part.
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(b) Without limiting any other right or remedy of Subtenant under
this Sublease, if Landlord seeks to terminate the Master Lease due to a default
by Sublandlord, which default is not attributable to Subtenant's failure to
fully observe, perform and discharge its obligations under this Sublease
(including, without limitation, the Transferred Obligations), Sublandlord shall
use its reasonable good faith efforts to maintain the Master Lease in full force
and effect and to avoid forfeiture thereof, and shall take all action as may
reasonably be required to reinstate the Master Lease and/or to claim and pursue
any right of redemption or relief from forfeiture of the Master Lease to which
Sublandlord may be entitled at law or in equity.
12. CONSENT OF LANDLORD. If Subtenant desires to take any action which
requires the consent of Landlord pursuant to the terms of the Master Lease,
including, without limitation, the making of any Alterations, then,
notwithstanding anything to the contrary herein, (a) Sublandlord, independently,
shall have the same rights of approval or disapproval as Landlord has under the
Master Lease, (b) Subtenant shall not take any such action until it obtains the
consent of both Sublandlord (whose consent shall not be unreasonably withheld,
except as otherwise expressly provided in this Sublease) and Landlord, and (c)
Subtenant shall request that Sublandlord obtain Landlord's consent on
Subtenant's behalf and Sublandlord shall use commercially reasonable efforts to
obtain such consent, unless Sublandlord and Landlord agree that Subtenant may
contact Landlord directly with respect to the specific action for which
Landlord's consent is required.
13. NO THIRD PARTY RIGHTS. Except as otherwise expressly provided
herein, the benefit of the provisions of this Sublease is limited to Sublandlord
and Subtenant and to their successors and assigns. No third party shall be
construed to have any rights as a third party beneficiary with respect to any of
the provisions of this Sublease. Subtenant acknowledges, however, that under
Article 13(c) of the Master Lease Landlord may require Subtenant to execute an
Assumption Agreement as a condition to Landlord's consent to this Sublease.
Subtenant shall not unreasonably refuse to execute such Assumption Agreement,
even though the same may make Landlord a third party beneficiary of this
Sublease.
14. LANDLORD'S CONSENT TO SUBLEASE. This Sublease is subject to the
consent of the Landlord. Sublandlord and Subtenant shall use commercially
reasonable efforts to obtain the consent of Landlord to this Sublease as soon as
reasonably possible following execution of this Sublease. At Subtenant's
election, Landlord's consent shall include: (a) Landlord's agreement to give
Subtenant notice of any material default by Sublandlord under the Master Lease
and the right to cure any such default; (b) Landlord's waiver of subrogation for
Subtenant's benefit, comparable to that found in Article 15 of the Master Lease;
and (c) Landlord's approval of Subtenant's installation of the signage described
in Exhibit 6 to this Sublease. In the event that Landlord's consent is not
obtained within twenty (20) days following the submittal of this Sublease by
Sublandlord to Landlord for consent, each of Sublandlord and Subtenant shall
have the right to terminate this Sublease by providing written notice of
termination to the other. Unless exercised prior thereto, this right of
termination hereunder shall expire upon the delivery to Subtenant of Landlord's
consent. For purposes of this paragraph, Landlord's consent shall be deemed to
have been given as of the date when Landlord's unconditional consent to this
Sublease has been obtained, or, in the event such
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consent is conditional, the date upon which such conditions have been fully
satisfied or waived by Landlord.
15. COUNTERPARTS. This Sublease may be executed in any number of
counterparts, each of which counterparts shall be deemed to be an original, and
all of which together shall constitute one and the same instrument.
16. STATUS OF LEASE. Sublandlord hereby represents and warrants to
Subtenant that (i) the Master Lease attached hereto as Exhibit 3 has been
executed and delivered by Master Landlord and Sublandlord and constitutes the
entire agreement of the parties thereto relating to the lease of the Premises,
(ii) no default or breach by Sublandlord or, to the best of Sublandlord's
knowledge, by Landlord, exists under the Lease, (iii) no event has occurred
that, with the passage of time, the giving of notice, or both, would constitute
a default or breach by Sublandlord or, to the best of Sublandlord's knowledge,
by Landlord under the Lease, and (iv) subject to receipt of Landlord's written
consent hereto, Sublandlord has the right and power to execute and deliver this
Sublease and to perform its obligations hereunder. Sublandlord shall not, except
with the prior written consent of Subtenant, terminate the Master Lease or take
any action that gives rise to a right of termination thereof by Landlord.
Furthermore, so long as Subtenant is not in default hereunder (after any
applicable notice and cure period), Sublandlord shall not, except with the prior
written consent of Subtenant, modify or amend the Master Lease, or make any
elections or give any consent under the Master Lease in such a manner as to
materially adversely affect the rights or obligations of Subtenant under this
Sublease.
17. PURCHASE OF FURNITURE. Sublandlord agrees to sell and Subtenant
agrees to purchase the furniture described in Exhibit 4 to this Sublease (the
"Furniture"), effective at the commencement of the Early Possession Period. The
sale and purchase of the Furniture is on an "AS IS" and "WITH ALL FAULTS" basis,
and is conditioned only upon the receipt of Landlord's consent to this Sublease.
Subtenant shall pay to Sublandlord $420,000 for the Furniture (the "Furniture
Purchase Price"), which shall be due and payable upon demand by Sublandlord.
Provided Subtenant is not in material default under this Lease (after any
applicable notice or cure period, including, without limitation, the statutory
three (3) day notice period or other notice period required by statute in order
to terminate the Sublease), Sublandlord shall make no demand for payment of the
Furniture Purchase Price until the expiration of the Sublease Term or the
earlier termination of this Sublease. Subtenant authorizes Sublandlord, at
Sublandlord's election, to use and apply so much of the Security Deposit as may
be needed in payment of the Furniture Purchase Price. Upon payment in full of
the Furniture Purchase Price, provided Subtenant is not otherwise in default
under this Sublease, and provided further that Subtenant first deposits with
Sublandlord the sum necessary (if any) to restore the Sublease Security Deposit
to the full amount of Five Hundred Thousand Dollars ($500,000), Sublandlord
shall convey title to the Furniture pursuant to a Xxxx of Sale in the form
attached as Exhibit 5 to this Sublease. Beginning with the commencement of the
Early Possession Period and continuing throughout the Sublease Term, Subtenant
shall (i) insure the Furniture, through a qualified insurer reasonably
acceptable to Sublandlord, against loss or damage under an "all risk" policy
providing coverage for the full replacement cost of the Furniture and naming
Sublandlord as loss payee, (ii) maintain the Furniture in good condition and
repair, (iii) not dispose of Furniture having a value in excess of
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$42,000 except with Sublandlord's consent (which may be granted or withheld in
Sublandlord's sole discretion), (iv) not remove the Furniture from the Premises
except upon not less than ten (10) days prior notice to Sublandlord and then
only to a secure location identified in Subtenant's notice, and (v) bear all
risk of loss to the Furniture. Subtenant shall provide satisfactory evidence of
the insurance coverage required under the preceding clause (i) at the beginning
of the Early Possession Period and thereafter within ten (10) days after
Sublandlord's written request therefor. If requested by Sublandlord, Subtenant
shall execute, acknowledge and deliver such further documents and instruments
(including, without limitation, a security agreement and UCC-1 financing
statement) as may be required to fully secure and protect Sublandlord's interest
in the Furniture. Sublandlord shall deliver possession of the Furniture to
Subtenant on the Early Possession Date in substantially the same condition as
exists on the date hereof.
18. SUBTENANT'S SIGNAGE. Subject to obtaining Landlord's prior written
consent thereto, Subtenant may install the signage described in Exhibit 6 to
this Sublease. Subtenant shall install such signage strictly in accordance with
applicable legal requirements, and shall be responsible for removing such
signage (and repairing any damage caused by such installation and removal) at
the expiration of the Sublease Term or the earlier termination of this Sublease.
All costs of installing, maintaining and removing Subtenant's signage (and of
repairing any damage resulting therefrom) shall be borne solely by Subtenant.
19. PRORATION OF RENT; PAYMENT OF EXCESS EXPENSES. If the Commencement
Date is a day other than the first day of a calendar month or if the Sublease
Term expires or this Sublease terminates on a day other than the last day of a
calendar month, all Rent shall be prorated appropriately. In no event shall
Subtenant's obligation to pay Excess Expenses exceed the amount attributable to
the Premises and payable by Sublandlord under the Master Lease. Subtenant shall
be entitled to all credits, if any, given by Landlord to Sublandlord where such
credits are for overpayment of Excess Expenses attributable to the Premises for
periods after the first anniversary of the Commencement Date.
20. SUBLANDLORD'S DEFAULT. Sublandlord shall not be in default under
this Sublease for failure to perform those obligations which are imposed on the
Lessee under the Master Lease, but which Subtenant has not agreed to perform
under this Sublease, unless such failure continues for more than thirty (30)
days after Subtenant gives Sublandlord written notice specifying with reasonable
particularity the obligations which remain unperformed (the "Correction
Period"); provided, however, that (a) if such failure of performance cannot be
corrected within thirty (30) days, the Correction Period shall be extended for
such additional time as is reasonably required, where Sublandlord commences
appropriate corrective action within such thirty (30) day period and thereafter
proceeds diligently to complete such action, and (b) if such failure of
performance poses a material risk of harm to persons or property, violates any
laws enacted specifically to protect public health or safety, or threatens the
forfeiture of the Master Lease, then such Correction Period shall be reduced to
such shorter period as allows Sublandlord a reasonable time to perform. If
Sublandlord is in default under this Sublease, Subtenant shall be entitled to
cure such default and to collect from Sublandlord promptly following written
demand therefor (which demand shall be accompanied by appropriate evidence of
Subtenant's expenditures) all amounts reasonably expended by Subtenant in
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curing Sublandlord's default. Subtenant's right to cure Sublandlord's default
under this Paragraph 20 is in addition to Subtenant's right to pay Landlord
delinquent amounts of Underlying Rent under Paragraph 3(d) of this Sublease.
21. CONSENT AND APPROVALS. Except as otherwise expressly provided in
this Sublease: (i) whenever consent or approval of either party is required,
such party shall not unreasonably withhold, condition or delay such consent or
approval; (ii) whenever either party is permitted to make a judgment, form an
opinion or exercise discretion in taking any action or making any determination,
the party shall employ commercially reasonable standards in so doing; and (iii)
where performance is to be made to a party's satisfaction, an objective and
reasonable standard shall be employed in regard to such performance. Subtenant
acknowledges that Sublandlord may reasonably withhold its consent where any
corresponding consent of Landlord under the Master Lease is not forthcoming,
without regard to whether Landlord's withholding of consent is reasonable.
22. PERFORMANCE UNDER MASTER LEASE. Sublandlord shall fully perform all
of its obligations imposed on it as Lessee under the Master Lease to the extent
Subtenant has not expressly agreed to perform the same under this Sublease.
Sublandlord, with respect to the obligations of Landlord under the Master Lease,
shall use Sublandlord's diligent, good faith efforts to cause Landlord to
perform such obligations for the benefit of Subtenant. Such diligent, good faith
efforts shall include: (a) upon Subtenant's written request, immediately
notifying Landlord of its non-performance under the Master Lease, and requesting
that Landlord perform its obligations under the Master Lease; and (b) provided
Subtenant is not in default (after any applicable notice or cure period)
permitting Subtenant to commence a lawsuit or other action in Subtenant's name
to obtain the performance required from Landlord under the Master Lease;
provided, however, that if Subtenant commences a lawsuit or other action,
Subtenant shall pay all costs and expense incurred in connection therewith, and
Subtenant shall indemnify Sublandlord against, and hold Sublandlord harmless
from, any and all liabilities arising therefrom and all reasonable costs and
expenses (including, without limitation, attorneys fees and court costs)
incurred by Sublandlord in connection therewith. Sublandlord may require, prior
to the commencement of any litigation against Landlord, that Subtenant post with
Sublandlord such additional security as Sublandlord reasonably may require to
assure the full performance of Subtenant's indemnity obligations hereunder.
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IN WITNESS WHEREOF, the parties have executed this Sublease on the dates
set forth adjacent to the signatures below, with the last such date being the
date to be inserted at the beginning hereof as the date of this Sublease.
ADDRESS: SUBLANDLORD:
(Before the Commencement Date)
0000 Xxxxx Xxxxxxx Xx., Xxx. 000 INKTOMI CORPORATION,
Xxx Xxxxx, XX 00000 a Delaware corporation
Attn.: Director of Facilities
(After the Commencement Date) By: /s/ [Signature Illegible]
0000 Xxxxx Xxxxxx -------------------------------
Xxxxxx Xxxx, XX 00000 Its:
Attn.: Director of Facilities -----------------------------
By: /s/ [Signature Illegible]
-------------------------------
Its:
------------------------------
Date: , 1999
------------------
ADDRESS: SUBTENANT:
(Before the Commencement Date) EPIPHANY MARKETING SOFTWARE, INC.,
0000 Xxxx Xx. a Delaware Corporation
Xxxx Xxxx, XX 00000
Attn: Chief Financial Officer
By: Xxxxx Xxxxxx
-------------------------------
(After the Commencement Date) Its: CEO
At the Premises ------------------------------
Attn: Chief Financial Officer
By:
-------------------------------
Its:
------------------------------
Date: May 5 , 1999
------------------
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