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Exhibit 10.14
Sublease Agreement dated March 25, 1999 between Computer Associates
International and CyberCash, Inc.
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Exhibit 10.14
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.
W I T N E S S E T H
1.1 SUBLEASE SUMMARY AND DEFINITIONS
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 this Sublease, the latter shall control.
(a) Sublandlord's Name COMPUTER ASSOCIATES
and address: INTERNATIONAL, INC.
1 Computer Associates Plaza
Islandia, N.Y. 11788-7000
Attn: Senior Vice President - Facilities
Rent payments to above address,
Attention: Treasurer - Rent Collection
(b) Sublandlord's State of
Incorporation: Delaware
(c) Subtenant's Name and CYBERCASH, INC.
address: 0000 Xxxxxx Xxxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Facilities Manager
(d) Subtenant's State of
Incorporation: Delaware
(e) Sublease Date: Xxxxx 00, 0000
(x) Overlandlord's Name and
Address: Alameda Real Estate Investments
Vintage Properties
000 Xxxxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxx Xxxx, XX 00000
(g) Xxxxxxxxx: Lease dated June 25, 1992
between Overlandlord and
Sublandlord, as amended by Amendment
No. 1 dated December 1, 1994.
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(h) Unincorporated provisions
of the Xxxxxxxxx: Paragraphs: 4.A, 4.B, 4.C, 4.G, 5, 9 (except that
Subtenant shall be responsible for payment of applicable
telephone charges), 32, 36, and 45
(i) Building: 0000 Xxxxxx Xxxxxxx Xxxxxxx
Xxxxxxx, XX 00000
(j) Premises: 26,066 Rentable Square Feet on the 3rd floor.
(k) Sublease Commencement Date: The earlier of (i) the date upon which Subtenant commences
operation of its business in the Premises, or (ii) eight (8)
weeks after delivery of Overlandlord's consen in
substantially the form of Overlandlord's Consent attached
hereto as Exhibit B except to the extent such consent is
delayed due to Subtenant's acts.
(l) Sublease Expiration Date: September 29, 2004
(m) Base Rent:
------------------------------- ------------------------ ----------------- ----------------
Annual Rent per rentable
Yearly Periods square foot Monthly Base Rent Annual Base Rent
------------------------------- ------------------------ ----------------- ----------------
5 months after the Sublease $21.00 $45,615.50 $547,386
Commencement Date through
month 12
------------------------------- ------------------------ ----------------- ----------------
Month 13-24 $21.60 $46,918.80 $563,025.60
------------------------------- ------------------------ ----------------- ----------------
Month 25-36 $22.20 $48,222.10 $578,665.20
------------------------------- ------------------------ ----------------- ----------------
Month 37-Sublease Expiration $23.40 $50,828.70 $609,994.40
Date
------------------------------- ------------------------ ----------------- ----------------
(n) Prepaid Base Rent: $45,615.50
(o) Sublease Operating Expenses
(including Real Estate Taxes)
Increases over Base Year: 1999
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Building Hours of Operation: 8:00 a.m. - 6:00 p.m.
Monday- Friday (excluding holidays).
Overtime HVAC charge is $20.00/hour
(p) Subtenant's Proportionate
Share: 31.41% (determined by dividing the rentable
square footage of the Premises by the rentable
square footage of the Building)
(q) Intentionally deleted
(r) Security Deposit: $45,615.50
(s) Alterations: The Premises shall be provided to Subtenant
in its "As Is" condition, provided however,
Subtenant shall have the right, in accordance
with SECTION 15 below, and provided same is
approved by Overlandlord in writing, to
install or cause to be installed certain
alterations relating to the Premises.
(t) Brokers: For Sublandlord: BT Commercial
For Subtenant: Staubach Company
(u) Parking: 78 unassigned parking spaces (based on 33
parking spaces per 1,000 rentable square
feet of the Premises).
2. SUBLEASE GRANT
2.1 By lease (hereinafter referred to as the "Xxxxxxxxx") described
above, the Overlandlord leased to Sublandlord certain space (hereinafter called
the "Leased Space") in the Building in accordance with the terms of the
Xxxxxxxxx. A true and complete copy of the Xxxxxxxxx is annexed hereto as
Exhibit A.
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 and
the Xxxxxxxxx, the square feet of rentable area as set forth in SECTION 1.1(j)
herein
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(comprising a portion of the Leased Space) and as shown hatched on EXHIBIT A-1
annexed hereto and made a part hereof (hereinafter called the "Premises").
3. SUBLEASE TERM
3.1 Subject to the other provisions hereof, this Sublease shall
continue in full force and effect for a primary term beginning on the Sublease
Commencement Date and ending on the Sublease Expiration Date as defined above.
Such term, as it may be extended or modified only by written agreement of the
parties or pursuant to an express provision of this Sublease, is herein called
the "Sublease Term". Notwithstanding the foregoing, Subtenant, its agents and
contractors shall be permitted access, from time to time, to the Premises prior
to the Sublease Commencement Date, after full execution and approval of the
Sublease by Overlandlord and after presentation to Sublandlord of Subtenant's
certificate of insurance, for the sole purpose of planning, constructing,
installing and outfitting the Premises for Subtenant's use. Said early entry
will be at no charge to Subtenant and Sublandlord will not interfere with the
ability of Subtenant's general contractor to complete its work.
4. RENT
4.1 Subtenant, in consideration of this Sublease, agrees to pay to
Sublandlord as rent ("Base Rent") the amounts set forth in SECTION 1.1(m)
hereof. Base Rent is payable in advance and without demand, at Sublandlord's
address specified in SECTION 1.1(a) above (or such other address as Sublandlord
shall designate) in writing to Subtenant) by check in equal monthly
installments, on the first day of each month during the Sublease Term, without
any set-off, off-set, abatement or reduction whatsoever. Notwithstanding the
foregoing, the Base Rent will not be payable until the sixth month of the
Sublease Term. Subtenant's failure to receive an invoice from Sublandlord for
the Base Rent shall not relieve Subtenant from its obligation of timely payment
hereunder. The Prepaid Base Rent shall be paid upon Subtenant's execution of
this Sublease. When the term of this Sublease commences in accordance with the
provisions hereof, Sublandlord and Subtenant shall execute a declaration
specifying the Sublease Commencement Date. Base Rent for any partial months
during the Sublease Term shall be equitably prorated. Prepaid Base Rent shall
constitute payment of the first full month's Base Rent due after the Sublease
Commencement Date.
4.2 As used in this Sublease, "Rent" shall mean the Base Rent, the
Sublease Operating Expense reimbursements pursuant to SECTION 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 when due as aforesaid, interest
shall accrue thereon at the lesser of 18% per annum or the maximum rate
permitted by law. Any such interest payment shall be payable as additional rent
under this Sublease and shall be payable promptly on demand.
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5. ASSIGNMENT OR UNDERLETTING
5.1 Subtenant shall not (a) assign this Sublease, nor (b) permit this
Sublease to be assigned by operation of law or otherwise, nor (c) underlet all
or any portion of the Premises, nor (d) permit any desk space therein to be
occupied by any person(s), without first obtaining:
(a) Overlandlord's consent and all other required consents to
such assignment or subletting as set forth in and pursuant to
the Xxxxxxxxx, and
(b) Sublandlord's consent.
Notwithstanding anything hereinbefore contained in SECTION 5.1
hereof, in the event Subtenant desires Sublandlord's consent to an assignment of
this Sublease or an underletting of all of the Premises, Subtenant by notice in
writing (a) shall notify Sublandlord of the name of the proposed assignee or
undertenant, furnish such information as to the proposed assignee's or
undertenant's financial responsibility and standing as Sublandlord may
reasonably require, and advise Sublandlord of the covenants, agreements, terms,
provisions and conditions contained in the proposed assignment or underlease and
(b) shall offer to vacate the Premises and to Surrender the same to Sublandlord
as of a date (hereafter called the "Surrender Date") specified in said offer
which shall be the last day of any calendar month during the term hereof,
provided, however, that the Surrender Date shall not be earlier than the date
occurring 120 days after the giving of such notice nor be later than the
effective date of the proposed assignment or the commencement date of the term
of the proposed underlease. Sublandlord may at its option accept such offer by
notice to Subtenant given within fifteen (15) business days after the receipt of
such notice from Subtenant. If the Premises be so surrendered by Subtenant
(without subletting or assigning this Sublease for the Premises), then in that
event this Sublease shall be canceled and terminated as of the agreed Surrender
Date with the same force and effect as if the agreed Surrender Date were the
date hereinbefore specified for the expiration of the full term of this
Sublease.
5.2 In the event Sublandlord does not accept such offer of Subtenant
referred to in SECTION 5.1 hereof, Sublandlord covenants not to unreasonably
withhold its consent to such proposed assignment or underletting by Subtenant of
the Premises to the proposed assignee or undertenant on said covenants,
agreements, terms, provisions and conditions set forth in notice to Sublandlord
referred to in SECTION 5.1 hereof; provided, however, that Sublandlord shall not
in any event be obligated to consent to any such proposed assignment or
underletting unless:
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(a) the proposed assignee or undertenant is of a financial
standing and is engaged in a business and the Premises will be
used in a manner which is in keeping with the then standards
of the Building;
(b) the proposed assignee or undertenant is a reputable party;
(c) the assignment or underletting shall not have the effect
(or give the utility company servicing the Building with
electricity cause to claim) that Sublandlord may not service
the Premises, or any part thereof, with electricity on a "rent
inclusion" basis;
(d) Sublandlord shall have the right, upon five (5) days prior
written notice to Subtenant, to require Subtenant thereafter
to pay to Sublandlord a sum equal to fifty percent (50%) of:
(i) any rent or other consideration paid to Subtenant by any
undertenant which is in excess of the fixed annual rent and
additional rent then being paid by Subtenant to Sublandlord
pursuant to the terms of this Sublease, and (ii) any other
profit or gain realized by Subtenant from any such assignment
or underletting in connection with any underletting, less
Subtenant's reasonable and actual costs of subletting; all
sums payable hereunder by Subtenant shall be paid to
Sublandlord as additional rent immediately upon receipt
thereof by Subtenant and, if requested by Sublandlord,
Subtenant shall promptly enter into a written agreement with
Sublandlord setting forth the amount of additional rent to be
paid to Sublandlord pursuant to this Section;
(e) there shall be no default by Subtenant under any of the
terms, covenants and conditions of this Sublease at the time
that Sublandlord's consent to any such assignment or
underletting is requested and on the effective date of the
assignment or the proposed underlease;
(f) the proposed assignee or undertenant shall not be (i) a
government or any subdivision or agency thereof, (ii) a school
college, university or educational institution of any type,
whether for profit or non-profit, (iii) a direct competitor of
Sublandlord (iv) an employment or recruitment agency, or (v) a
telephone solicitation business.
(g) Subtenant shall reimburse Sublandlord for any reasonable
expenses that may be incurred by Sublandlord in connection
with the proposed assignment or underlease, including without
limitation the reasonable costs of making investigations as to
the acceptability of a proposed assignee or
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undertenant and reasonable legal expenses incurred in
connection with the granting of any requested consent to the
assignment or underlease, such expenses not to exceed $1,000;
(h) such proposed underletting will result in there being no
more than one occupant of the Premises including Subtenant.
5.3 Notwithstanding anything herein to the contrary, and provided that
Overlandlord has approved of such use, use of the Premises by contractors or
consultants of Subtenant, in connection with Subtenant's business shall not
constitute a subletting or assignment hereunder.
6. TERMS OF THE XXXXXXXXX
6.1 Except as herein otherwise expressly provided, including without
limitation the provisions specifically set forth in SECTION 1.1(h), all of the
terms, covenants, conditions and provisions in the Xxxxxxxxx are hereby
incorporated in, and made a part of this Sublease, and such rights and
obligations as are contained in the Xxxxxxxxx are hereby imposed, mutatis
mutandis, upon the respective parties hereto; the Sublandlord herein being
substituted for the Landlord in the Xxxxxxxxx, and the Subtenant herein being
substituted for the Tenant named in the Xxxxxxxxx; provided, however, that
Subtenant acknowledges that the services to be rendered to the Premises are to
be rendered by Overlandlord, not Sublandlord. Sublandlord herein shall not be
liable for any defaults by Overlandlord and, if Overlandlord is not the fee
owner, the owner in fee of the land and the Building of which the Premises are a
part. If the Xxxxxxxxx shall be terminated for any reason during the term
hereof, other than due to Sublandlord's breach, then and in that event this
Sublease shall thereupon automatically terminate and Sublandlord shall have no
liability to Subtenant by reason thereof. Notwithstanding the foregoing, in the
event of any breach of the Xxxxxxxxx by Overlandlord which would entitle the
Tenant to a remedy or otherwise exercise its self-help right thereunder,
Sublandlord shall either (a) exercise such remedy or self-help right on behalf
of Subtenant at Subtenant's request, provided that Subtenant reimburses
Sublandlord for any costs incurred thereby which are not recovered from the
Overlandlord; or (b) permit Subtenant to exercise such self-help right or seek
such remedy in Sublandlord's stead; provided Subtenant indemnifies and holds
Sublandlord harmless from and against any claims resulting from such exercise.
Capitalized terms not otherwise defined herein shall have the meanings set forth
in the Xxxxxxxxx.
6.2 Subject to the terms and conditions of the Overlandlord's Consent,
this Sublease is subject to, and Subtenant accepts this Sublease subject to, any
amendments and supplements to the Xxxxxxxxx hereafter made between Overlandlord
and Sublandlord, provided that any such amendment or supplement to the Xxxxxxxxx
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.
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6.3 Subject to the terms and conditions of the Overlandlord's Consent,
this Sublease is subject and subordinate to the Xxxxxxxxx and to all ground or
underlying leases and to all mortgages which 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 any
certificate, reasonably acceptable in form and substance to Subtenant,,
Sublandlord and Overlandlord that Sublandlord and Overlandlord may request.
7. CONDITION OF PREMISES
7.1 Subtenant has examined the Premises, is aware of the physical
condition thereof, and agrees to take the same "as is," (except as otherwise
expressly provided herein) with the understanding that there shall be no
obligation on the part of Sublandlord to incur any out-of-pocket expense
whatsoever in connection with the preparation of the Premises for Subtenant's
occupancy thereof. Any work performed by Subtenant shall be in accordance with
the terms of the Xxxxxxxxx and the Sublease including, but not limited to,
SECTION 15 herein.
8. USE OF PREMISES
8.1 Subtenant agrees that the Premises shall be occupied only in
accordance with the terms of Paragraph 6 of the Xxxxxxxxx, as incorporated
herein. Provided that same is permitted under the Xxxxxxxxx or otherwise
consented to by Overlandlord, the Premises may be used for research and
development activities associated with software development as well as training
and support of Subtenant's own employees, all in connection with Subtenant's
business. In no event will any such permitted use allow Subtenant to engage in
any type of manufacturing or assembly activities at the Premises and the
provisions relating to Hazardous Materials contained in Section 37 of the
Xxxxxxxxx shall apply to Subtenant's use of the Premises.
9. CONSENT OF OVERLANDLORD
9.1 This Sublease is conditioned upon the consent hereto by
Overlandlord, which consent shall be evidenced by Overlandlord's execution and
delivery of the Overlandlord's Consent annexed hereto as Exhibit B or other form
as Overlandlord, Sublandlord and Subtenant shall reasonably approve. Subtenant
shall be solely responsible for any fees or charges imposed by the Overlandlord
in connection with the obtaining of such consent and otherwise due and payable
under the Xxxxxxxxx. Provided Overlandlord's Consent does not materially affect
the terms of this Sublease, Subtenant shall promptly execute any documents
reasonably requested by Overlandlord in order to obtain such consent.
9.2 Sublandlord shall use commercially reasonable efforts to obtain the
Overlandlord's Consent; provided however, Sublandlord makes no representation
with respect to obtaining Overlandlord's approval of this Sublease. In the event
that Overlandlord notifies Sublandlord that
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Overlandlord will not give such approval, Sublandlord will promptly notify
Subtenant of such refusal and thereafter Subtenant and Sublandlord shall discuss
in good faith possible alternative approaches to obtaining Overlandlord's
consent to this Sublease. Notwithstanding the foregoing and except to the extent
caused by Subtenant delays including, but not limited to, the use of Subtenant's
form of Overlandlord agreement as attached hereto, if the Overlandlord's Consent
is not executed by Overlandlord on or before the date (the "Consent Date") that
is twenty (20) business days after full execution of this Sublease, either
Sublandlord or Subtenant may give the other a notice of intention to terminate
this Sublease, and if the party to whom such notice is sent does not cause the
Overlandlord's Consent to be executed within ten (10) days following the giving
of such notice, then the other party may terminate this Sublease by written
notice given within five (5) days following the expiration of said ten (10) day
period. Upon such termination, neither party shall have any further obligation
or liability hereunder.
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. If Overlandlord should refuse such consent
or approval, Sublandlord shall be released of any obligation to grant its
consent or approval whether or not Overlandlord's 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 Overlandlord's consent or approval, including without
limitation, enforcing Sublandlord's rights under the Xxxxxxxxx on behalf of
Subtenant.
10. DEFAULT
10.1 Without limiting the generality of SECTION 6.1, the terms and
conditions of Paragraph 15 of the Xxxxxxxxx, as incorporated herein, shall apply
to any default by Subtenant under this Sublease, any associated cure rights and
remedies for such default.
11. SUBLANDLORD REPRESENTATIONS/COVENANTS
11.1 As of the date hereof, Sublandlord represents to the best of its
knowledge without further investigation (a) that it is the holder of the
interest of the Tenant under the Xxxxxxxxx, (b) that the Xxxxxxxxx is in full
force and effect, (c) that it has not given nor received a notice of default
under the Xxxxxxxxx, nor to its knowledge do any facts exist that would
constitute a default under the Xxxxxxxxx by either Sublandlord or Overlandlord,
(d) that it has not transferred, assigned, granted a security interest in,
pledged or otherwise hypothecated its interest in the Xxxxxxxxx to a third
party, (e) that it is duly organized and validly existing under the laws of
Delaware and has all requisite power and authority to enter into this Sublease.
11.2 The continued validity of the representations set forth in SECTION
11.1 above (except subsection (a) to the extent Sublandlord assigns its interest
as Tenant to
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a controlled entity or subsection (c) to the extent Sublandlord reasonably
prosecutes to cure in accordance with the Xxxxxxxxx) as of the Sublease
Commencement Date is an express condition to Subtenant's obligations under this
Sublease. Failure of any such representation to be correct as of the Sublease
Commencement Date shall permit Subtenant to terminate this Sublease. Sublandlord
agrees that throughout the Sublease Term it will not be in default of the
Xxxxxxxxx beyond any applicable cure period.
12. BROKERS
12.1 Subtenant and Sublandlord hereby covenant, represent and warrant
to each other that neither party has had any dealings or communications with any
broker or agent in connection with the consummation of this Sublease other than
those parties named in SECTION 1.1(h) hereof, and Subtenant and Sublandlord
hereby covenant and agree 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 broker or
agent other than such brokers with respect to this Sublease or the negotiation
thereof.
13. SUBLEASE OPERATING EXPENSES/TAXES
13.1 As used in this Sublease, the term "Sublease Operating Expenses"
shall mean the Operating Expenses and the Property Taxes payable by Sublandlord
under the Xxxxxxxxx and all other reasonable out-of-pocket expenses paid by
Sublandlord to Overlandlord in accordance with the provisions of the Xxxxxxxxx.
Notwithstanding the foregoing, the provisions of 4F of the Xxxxxxxxx, including
the exclusions listed therein, shall apply to the Sublease Operating Expenses.
13.2 In addition to Base Rent, Subtenant shall pay to Sublandlord (if
not collected by Overlandlord pursuant to the Amendment to the Xxxxxxxxx), as
additional rent with respect to each calendar year of the Sublease Term
subsequent to the Base Year as specified in SECTION 1.1(o), Tenant's
Proportionate Share of the total dollar increase, if any, in the Sublease
Operating Expenses paid or incurred by Sublandlord in such subsequent calendar
year over the Sublease Operating Expenses incurred during the Base Year.
13.3 The procedure for payment and reconciliation of Operating Expenses
set forth in Paragraph 4(F) of the Xxxxxxxxx shall apply to the Sublease
Operating Expenses, including without limitation, the delivery to Subtenant of a
statement setting forth the actual Sublease Operating Expenses and Premises
Expenses and the right of Subtenant to audit the bills and invoices underlying
such statement.
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13.4 With respect to any utility expense portion of the Sublease
Operating Expenses, to the extent such utility is not directly billed to
Subtenant by the appropriate utility company, such utility expense shall be
shared prorata between Sublandlord and Subtenant based on the rentable square
footage of the Premises in relation to the rentable square footage of the
Building. Notwithstanding the foregoing, Sublandlord may require Subtenant to
(upon presentation to Subtenant of reasonable documentation of Subtenant's
excess utility usage) or Subtenant may, at Subtenant's sole cost and expense,
install or cause to be installed a separate utility meter or submeter to measure
the utility in question (including a meter relating solely to HVAC usage) and
thereafter the Sublease Operating Expenses shall not include charges for such
separately metered or submetered utility. In addition, if any of the utilities
in the Premises are so separately metered, Subtenant shall be entitled to a
credit against Base Rent as a result of such utility being paid directly by
Subtenant. Such credit shall be reasonably determined at such time by the
parties hereto by using calculations of the utility costs from the 0000 Xxxxxx
Xxxxxxx Xxxxxxx building, taking into consideration that the Building's common
area charges will not be included as part of such credit.
13.5. Subtenant shall pay to Sublandlord during the Sublease Term an
annual fee of $250 for the costs of administration and management of this
Sublease, which fee shall be due and payable within thirty (30) days of the
commencement of each year of this Sublease.
14. INTENTIONALLY DELETED
15. ALTERATIONS
15.1 Subtenant shall not make or suffer to be made any alteration,
additions or improvements to the Premises or to any other portion of the
Building ("Sublease Alterations") without first obtaining the prior written
consent of Sublandlord which shall not be unreasonably withheld, conditioned or
delayed. Subject to Sublandlord's review of Subtenant's final plans and
specifications and receipt of Overlandlord's consent, Sublandlord acknowledges
that it has agreed to allow Subtenant or its agents or contractors to construct,
install or otherwise improve the Premises in accordance with the specifications
set forth on Exhibit D annexed hereto. All Sublease Alterations, if any, shall
be subject to and installed in accordance with the Sublease and the terms and
conditions of Paragraph 13 of the Xxxxxxxxx, including, without limitation,
Subtenant obtaining the approval of the Sublease Alterations by Overlandlord
pursuant to the provisions of the Xxxxxxxxx, Subtenant applying for and
obtaining all permits and approvals for the Sublease Alterations from all
governmental authorities having jurisdiction over the construction or
installation of the Sublease Alterations. Notwithstanding anything herein,
Sublandlord shall have no obligation to contribute funds or otherwise be exposed
to any expenses relating to or toward any Sublease Alterations or other items to
be installed by Subtenant in the Premises. The parties hereto acknowledge that
the five (5) month Base Rent abatement provided for under this Sublease serves
as full and total compensation by Sublandlord for any Sublease Alterations made
to the Premises by Subtenant.
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15.2 Although the construction work may be performed during normal
business hours, Subtenant and its agents and contractors will not interfere with
the quiet enjoyment of the Building by Sublandlord or Sublandlord"s use of the
Leased Space. Sublandlord may impose reasonable rules and regulations in order
to preserve its security and operational requirements. These regulations would
include, but not be limited to, the following: (1) Subtenant to coordinate all
work with Sublandlord and provide a schedule of work prior proceeding.; (2) all
work which (a) impact main building systems or any systems shared by Sublandlord
(i.e. electrical, mechanical, security, fire safety), or (b) may produce
excessive noise, vibration or noxious fumes must be scheduled through
Sublandlord and Sublandlord reserves the right to require that such work be
performed after hours or at such times as Sublandlord may reasonably designate.
Subtenant shall further provide Sublandlord, for its reasonable approval, a
logistics plan identifying paths for deliveries, staging and contractor access.
Any approvals required to be given by Sublandlord under this section shall not
be unreasonably withheld, conditioned or delayed.
16. SECURITY DEPOSIT
16.1 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 a check in the
amount set forth in SECTION 1.1(q).
16.2 In the event Subtenant defaults in respect of any of the terms,
provisions, covenants and conditions of this Sublease, including, but not
limited to, the payment of Base Rent and additional rent, Sublandlord may use,
apply or retain the whole or any part of the security so deposited to the extent
required for the payment of any Base Rent and additional rent or any other sum
as to which Subtenant is in default or for any sum which Sublandlord may expend
or may be required to expend by reason of Subtenant's default in respect of any
of the terms, provisions, covenants, and conditions of this Sublease, including,
but not limited to, any damages or deficiency accrued before or after any
re-entry by Sublandlord.
16.3 In the event that Subtenant defaults in respect of any of the
terms, provisions, covenants and conditions of the Sublease and Sublandlord
utilizes all or any part of the security but does not terminate this Sublease as
provided herein, Sublandlord may in addition to exercising its rights as
provided in SECTION 16.2, retain the unapplied and unused balance of the
principal amount of the security as security for the faithful performance and
observance by Subtenant thereafter of the terms, provisions and conditions of
this Sublease and may use, apply or retain the whole or any part of said balance
to the extent required for payment of rent, additional rent, or any other sum as
to which Subtenant is in default or for any sum which Sublandlord may expend or
be required to expend by reason of Subtenant's default in respect of any of the
terms, covenants, and conditions of this Sublease. In the event Sublandlord
applies or retains any portion or all of the security delivered hereunder,
Subtenant shall forthwith restore the amount so applied or retained so that at
all times the amount deposited shall be no less than the security required by
SECTION 1.1(r).
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16.4 In the event that Subtenant shall fully and faithfully comply with
all of the terms, provisions, covenants and conditions of this Sublease, the
security shall be returned to Subtenant (i) after the Sublease Expiration Date
and within fifteen (15) business days after written request from Subtenant and
after delivery of entire possession of the Premises to Sublandlord, or (ii) upon
Sublandlord's receipt of an equivalent amount of security from an assignee or
undertenant pursuant to an assignment or underletting permitted by Paragraph 25
of the Xxxxxxxxx. In the event of an assignment of the Xxxxxxxxx by Sublandlord,
Sublandlord shall have the right to transfer any interest it may have in the
security to the assignee and Sublandlord shall thereupon be released by
Subtenant from all liability for the return of such security, provided such
assignee expressly assumes any responsibilities of Sublandlord with respect to
such security, and Subtenant thereafter agrees to look solely to the new
sublandlord for the return of said security; and it is agreed that the
provisions hereof shall apply to every transfer or assignment made of the
security to a new sublandlord. Subtenant further covenants that it will not
assign or encumber or attempt to assign or encumber the monies deposited herein
as security and that neither Sublandlord nor its successors or assigns shall be
bound by any such assignment, encumbrance, attempted assignment or attempted
encumbrance.
17. QUIET ENJOYMENT
17.1 So long as Subtenant pays all of the Base 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 Xxxxxxxxx.
18. INTENTIONALLY DELETED
19. NO WAIVER
19.1 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 due, 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 Sublease Term hereby demised shall be deemed an
acceptance of a surrender of the Premises and no agreement to accept such
surrender shall be valid unless in writing signed by Sublandlord. No employee of
Sublandlord or agent of Sublandlord shall have any power to accept
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the keys of the 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 Premises.
20. NOTICES
20.1 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 given or made by mailing the
same by registered or certified mail, return receipt requested or by a
recognized overnight courier to the address and person designated in SECTION
1.1(a) and SECTION 1.1(c) herein.
20.2 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 actually received (or refused) by the party to be noticed. In the event
Subtenant's address is not set forth above, notice to Subtenant shall be deemed
sufficient if sent to the Premises.
21. INTERPRETATION
21.1 The parties acknowledge that each party and its respective counsel
have reviewed this Sublease and that no rule of construction to the effect that
any ambiguities are to be resolved against the drafting party shall be employed
in the interpretation of this Sublease or any amendments or exhibits hereto.
22. NON-SOLICITATION OF SUBLANDLORD'S EMPLOYEES
22.1 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 (12) months after expiration of the
Sublease Term.
23. NO SMOKING/NO LIQUOR
23.1 Subtenant shall not permit smoking in or about the Premises or the
Building (except in designated areas, if any, outside the Building) and shall
notify its employees, visitors, agents and other occupants or invitees to the
Premises of same, and shall, at its expense, provide appropriate signage within
the Premises to advise of same.
23.2 No alcoholic beverages of any kind or liquor of any kind shall be
sold on the Premises.
24 PARTIAL INVALIDITY
24.1 If any provision of this Sublease or the application thereof to
any person or circumstance shall, to any extent, be valid or unenforceable, the
remainder of the Sublease, or the
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application of such provision to persons or circumstances other than those as to
which it is invalid or unenforceable, shall not be affected thereby, and each
provision of this Sublease shall be valid and enforceable to the full extent
permitted by law.
25. EXPANSION OPTION
25.1 Subtenant shall have a right of first offer to lease any
additional space that Sublandlord intends to sublease in the Building. Prior to
subleasing any additional space in the Leased Premises, Sublandlord shall
provide written notice (the "Offer Notice") to Subtenant of Sublandlord's
intention to sublease such space. The Offer Notice shall identify the space
proposed to be sublet (the "Additional Space") and specify the time (the
"Delivery Date") Sublandlord will deliver possession of the Additional Space as
well as the rent and additional payments which would be payable for such
Additional Space. Subtenant shall have the right to lease the Additional Space
by giving Sublandlord written notice within seven (7) business days after
receipt of the Offer Notice that Subtenant is exercising its right to lease the
Additional Space. If Subtenant so exercises its right of first offer, this
Sublease shall be deemed modified, as of the Delivery Date, to include the
Additional Space. The lease of the Additional Space shall be upon the same terms
and conditions set forth in this Sublease; provided however, the Base Rent for
the Additional Space shall be at the amount set forth in the Offer Notice. The
term of the lease for the Additional Space leased pursuant to this provision
shall expire on the Sublease Expiration Date.
25.2 This right is personal to the Subtenant named herein and is not
transferable and may be revoked by Sublandlord in the event of repeated late
payments by Subtenant or other repeated defaults of material provisions of the
Sublease.
26. SECURITY CARDS
26.1 Subtenant's access to the Building will be controlled by
Sublandlord's security system, which requires a security card to be displayed
before entrance into the Building will be granted. Subtenant shall pay to
Sublandlord the sum of $10.00 for each security card required for each employee
of Subtenant who requires entrance into the Building. In the event that any
security card is lost, misplaced or damaged, Subtenant will pay to Sublandlord
$10.00 for a replacement of such security card. Notwithstanding the foregoing,
Subtenant may, at Subtenant's sole cost and expense, install and maintain its
own security system controlling access to the Premises; provided (a) that
Subtenant gives Sublandlord and Overlandlord security cards or other items or
information necessary to allow such parties to have access to the Premises for
the purposes permitted under this Sublease and the Xxxxxxxxx; and (b) that such
security system shall be solely on the Premises and shall not in any manner
affect access to any other areas of the Building or the Leased Space.
27. SIGNAGE
27.1 Subtenant may, at its sole cost and expense, install "eyebrow"
signage on the Building as well as a monument sign by the Building; provided
that same are approved by all
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applicable municipal agencies, the Overlandlord, and Sublandlord (Sublandlord's
consent not to be unreasonably withheld), and provided that same do not violate
any covenants and restrictions running with the Property nor that said signage
is provided to replace Sublandlord's sign(s). At the expiration of the Sublease,
Subtenant shall be responsible for the removal of the signage and return of the
Building facade to substantially its prior condition.
27.2 This right is personal to the Subtenant named herein and is not
transferable and may be revoked by Sublandlord in the event of repeated late
payments by Subtenant or other repeated defaults of material provisions of the
Sublease.
28. MISCELLANEOUS
28.1 Where applicable, Subtenant shall be responsible for all
reasonable out-of-pocket additional costs incurred solely as a result of this
Sublease, the issuance of security cards, keys and parking cards and similar
items. The foregoing provision shall not apply to expenses described in SECTION
13 hereof.
28.2 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.
28.3 This Sublease shall not be binding upon Sublandlord unless and
until it is signed by Sublandlord and delivered to Subtenant. This SECTION 28.3
shall not be deemed to modify the provisions of SECTION 9 hereof.
28.4 This Sublease constitutes and contains the entire agreement
between the parties and supersedes all prior agreements, representations and
understandings between the parties relating to the subject matter of this
Sublease. No oral understandings, statements, promises or inducements contrary
to the terms of this Sublease exist.
28.5 This Sublease shall inure to the benefit of all of the parties
hereto, their successors and (subject to the provisions hereof) their assigns.
28.6 Subtenant agrees and acknowledges that Subtenant has been
represented by counsel of Subtenant's own choosing in connection with the
negotiation, preparation and execution of this Sublease Agreement.
28.7 Sublandlord agrees and acknowledges that it has been represented
by counsel of its own choosing in connection with the negotiations, preparation
and execution of this Sublease Agreement.
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28.8 Sublandlord shall indemnify, defend, protect and hold each of
Subtenant and its respective officers, partners, employees, agents, attorneys,
successors and assigns harmless from and against any and all claims,
liabilities, penalties, damages, losses, causes of action, costs and expenses
(including, without limitation, attorneys' fees and costs) to the extent the
foregoing arise from or are caused, directly or indirectly, by any act or
omission of Sublandlord, its officers, partners, agents, servants, employees,
contractors, invitees or transferees: (i) occurring in, on, or about the Leased
Space or the Building; or (ii) which is a default under or breach of any of the
provisions of this Sublease.
28.9 Subtenant shall indemnify, defend, protect and hold each of
Sublandlord and its respective officers, partners, employees, agents, attorneys,
successors and assigns harmless from and against any and all claims,
liabilities, penalties, damages, losses, causes of action, costs and expenses
(including, without limitation, attorneys' fees and costs) to the extent the
foregoing arise from or are caused, directly or indirectly, by any act or
omission of Subtenant, its officers, partners, agents, servants, employees,
contractors, invitees or transferees: (i) occurring in, on, or about the
Premises or the Building; or (ii) which is a default under or breach of any of
the provisions of this Sublease.
28.10 In the event that Subtenant fails to vacate the Premises at the
expiration of the Sublease Term in accordance with the terms of the Xxxxxxxxx,
the provisions of Paragraph 22 of the Xxxxxxxxx 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.
28.11 Subtenant agrees that it will begin to diligently pursue
obtaining alternative office space beginning no later than six (6) months prior
to the expiration of this Sublease and will use commercially reasonable efforts
during the last six (6) months of the Sublease Term to ensure that it is able to
vacate the Premises in a timely and proper manner. Subtenant shall, if requested
by Sublandlord during the last six (6) months of the Sublease Term, present
evidence of such efforts to Sublandlord.
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IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
of the day and year first above written.
COMPUTER ASSOCIATES
INTERNATIONAL, INC.,
Sublandlord
By
-----------------------
Name:
--------------------
CYBERCASH, INC., Subtenant
By /s/ XXXXX X. XXXXXX
-----------------------
Name: XXXXX X. XXXXXX
--------------------
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