California-San Mateo-2988 Campus Drive Sublease - E.piphany Inc. and Sina.com
SUBLEASE
This SUBLEASE (the "Sublease") is dated as of the 11th day of January,
2002, by and between E.PIPHANY, INC., a Delaware corporation ("Sublandlord"),
and SINA.com ("Subtenant").
R E C I T A L S
WHEREAS, pursuant to that certain Lease dated as of December 10, 1999
by and between Peninsula Office Park Associates, a California limited
partnership ("Prime Landlord"), as landlord, and Sublandlord, as tenant, (the
"Prime Lease"), a copy of which Prime Lease is attached hereto as Exhibit A,
Sublandlord leased from Prime Landlord certain premises (the "Original
Premises") located in the building commonly known as 2988 Campus Drive, San
Mateo, California (the "Building"), which Original Premises contain
approximately 11,067 rentable square feet of space, as more fully described in
the Prime Lease; and
WHEREAS, Subtenant desires to sublease from Sublandlord a portion of
the Original Premises containing approximately 5,238 rentable square feet known
as Suite 100 on the first floor of the Original Premises and more particularly
shown on the floor plan attached hereto as Exhibit B (the "Subleased Premises"),
and Sublandlord is willing to sublease the Subleased Premises to Subtenant on
the provisions, covenants and conditions hereinafter set forth.
A G R E E M E N T
NOW, THEREFORE, for good and valuable consideration, and in
consideration of the mutual covenants made herein, the receipt and sufficiency
of which are hereby acknowledged and agreed, Sublandlord hereby subleases to
Subtenant and Subtenant hereby takes and hires from Sublandlord the Subleased
Premises, on the terms and conditions set forth below:
I. DEFINED TERMS. All terms defined in the Prime Lease and used
herein shall, unless otherwise defined herein, have the meanings ascribed to
such terms in the Prime Lease.
II. TERM. The term of this Sublease (the "Sublease Term") shall
commence on March 1, 2002 (the "Sublease Term Commencement Date"), and shall
continue until February 29, 2004, unless sooner terminated in accordance with
the provisions of this Sublease. Subtenant shall have the right to occupy the
Subleased Premises as of date hereof through the Sublease Term Commencement Date
solely for the purposes of setting up office partitions and the computer and
phone networks. During the period prior to the Sublease Term Commencement Date,
Subtenant shall be subject to all of the rights and obligations under this
Sublease except for the obligation to pay Basic Rent.
III. OPTION TERM. Subtenant shall have an option to extend the Sublease
Term for one (1) twenty (20) month period (the "Option Term") exercisable by
written notice to Sublandlord no later than sixty (60) days prior to the end of
the Sublease Term.
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IV. DELIVERY. The Subleased Premises shall be delivered to Subtenant,
broom-clean and free of all occupants but otherwise "as-is, where-is and with
all faults", without representation or warranty, express or implied, and
Subtenant hereby waives, disclaims and renounces any representation or warranty.
V. INTENTIONALLY OMITTED
VI. BASIC RENT. Subtenant shall pay to Sublandlord, in advance, in
monthly installments, without withholding, offset or reduction, Basic Rent at
the following rates:
March 1, 2002 through February 28, 2003 $9,000.00 per month
March 1, 2003 through February 29, 2004 $9,270.00 per month
In the event Subtenant exercises its option to extend the Sublease Term
pursuant to Section III hereof, Subtenant shall pay to Sublandlord, in advance,
in monthly installments, without withholding, offset or reduction, Basic Rent
during the Option Term at the following rates:
March 1, 2004 through February 28, 2005 $9,548.10 per month
March 1, 2005 through September 30, 2005 $9,834.54 per month
Basic Rent for any partial calendar months at the beginning or end of the
Sublease Term shall be prorated on a daily basis. Subtenant acknowledges that
Sublandlord's payments of Basic Rent for the Original Premises are paid to Prime
Landlord on the first day of each calendar month during the Term and Subtenant
therefore covenants and agrees that its payments of Basic Rent hereunder shall
be paid to Sublandlord at least two (2) business days prior to the first of each
calendar month. Subtenant shall deliver $9,000.00 as payment for the first
month's rent upon execution of this Sublease.
VII. ACCESS SYSTEM. Subtenant shall pay to Sublandlord as additional
rent a monthly fee of Two Hundred Twenty Five and 00/100 Dollars ($225.00) for
the use of the ADT Card Entry System (the "ADT System") currently in place at
the Subleased Premises. This fee shall cover the initial set up of the system
and normal monitoring. Subtenant shall buy from Sublandlord access cards for
Subtenant's employees at a charge of Nine and 00/100 Dollars ($9.00) per card.
Replacement cards shall be charged at the same rate as new cards. Subtenant
shall also pay to Sublandlord as additional rent the costs for any additional
administration of the ADT System by Sublandlord at the rate of Seventy and
00/100 Dollars ($70.00) per hour.
VIII. USE. The Subleased Premises shall be used and occupied for
general business office purposes and for no other use or purpose.
IX. SECURITY DEPOSIT. Upon execution hereof, Subtenant has delivered to
Sublandlord the sum of $9,000.00 (one (1) month of Basic Rent) ("Subtenant's
Security Deposit"), such sum to be held by Sublandlord as security for the
performance of Subtenant's obligations under this Sublease. Upon the occurrence
of any default by Subtenant hereunder after expiration of any applicable grace
or cure periods, Subtenant agrees that Sublandlord may apply all or any part of
Subtenant's Security Deposit, together with accrued interest, if any, to any
obligation of Subtenant hereunder. Such application shall not excuse the default
of Subtenant hereunder. If all or any portion of Subtenant's
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Security Deposit is applied by Sublandlord against any of Subtenant's
obligations hereunder, Subtenant shall promptly restore Subtenant's Security
Deposit to its original amount. Interest on Subtenant's Security Deposit shall
in all instances be retained by Sublandlord. Subtenant's Security Deposit will
be returned to Subtenant within thirty (30) days of termination of this
Sublease.
X. PRIME LEASE. Subtenant agrees that it will do nothing in, on or
about the Subleased Premises which would result in the breach by Sublandlord of
its undertakings and obligations under the Prime Lease. Except for the following
provisions, this Sublease shall be subject to and on all of the terms and
conditions as are contained in the Prime Lease and the provisions of the Prime
Lease are hereby incorporated into this Sublease as if Sublandlord were the
landlord thereunder and Subtenant the tenant thereunder:
The defined economic terms for "Basic Rent," "Security Deposit,"
"Tenant Allowance," "Term," "Premises" and the like are inapplicable;
A. Section 3.2 of the Prime Lease (relating to escalation
payments) are inapplicable;
B. Section 31 of the Prime Lease (relating to brokers) is
inapplicable;
C. Exhibit B to the Prime Lease (relating to construction of
the Original Premises) is inapplicable.
Where appropriate, references to "Landlord" in the Prime Lease shall be
deemed to mean "Sublandlord" hereunder and references to "Tenant" in the Prime
Lease shall be deemed to mean "Subtenant" hereunder, it being understood and
agreed that Sublandlord will not be acting as, or assuming any of the
responsibilities of, Prime Landlord, and all references in the Prime Lease to
Landlord-provided services or Landlord insurance requirements, and any other
references which by their nature relate to the owner or operator of the
Building, rather than to a tenant of the Building subleasing space to a
subtenant, shall continue to be references to Prime Landlord and not to
Sublandlord.
XI. SUBTENANT'S COVENANTS. Subtenant covenants to Sublandlord to
perform all of the covenants and obligations to be performed by Sublandlord as
Tenant under the Prime Lease as the same relate to the Subleased Premises and to
comply with this Sublease and the applicable provisions of the Prime Lease, as
modified by this Sublease, in all respects. If Subtenant shall fail to make any
payment or perform any act required to be made or performed by Subtenant under
the Prime Lease pursuant to Subtenant's assumption of Sublandlord's obligations
thereunder as they relate to the Subleased Premises, and such default is not
cured by Subtenant by the first to occur of (i) one-half of the period specified
in the Prime Lease for curing such default, or (ii) five (5) days prior to the
expiration of such Prime Lease cure period, Sublandlord, without waiving or
releasing any obligation or default hereunder, may (but shall be under no
obligation to) make such payment or perform such act for the account and at the
expense of Subtenant, and may take any and all such actions as Sublandlord in
its sole discretion deems necessary or appropriate to accomplish such cure. If
Sublandlord shall reasonably incur any expense in remedying such default,
Sublandlord shall be entitled to recover such sums upon demand from Subtenant as
Additional Rent under this Sublease.
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XII. SUBLANDLORD'S COVENANTS. Sublandlord covenants to Subtenant to
perform all of the terms and provisions required of it under the Prime Lease and
to promptly pay when due all rents due and accruing to Prime Landlord under the
Prime Lease. Sublandlord will use reasonable efforts to enforce on behalf of
Subtenant Sublandlord's rights under the Prime Lease. Nothing contained in this
Sublease shall be construed as a guarantee by Sublandlord of any of the
obligations, covenants, warranties, agreements or undertakings of Prime Landlord
in the Prime Lease, nor as an undertaking by Sublandlord to Subtenant on the
same or similar terms as are contained in the Prime Lease.
XIII. INDEMNIFICATION. Subtenant and Sublandlord shall indemnify and
hold the other party harmless from and against any and all claims, demands
suits, judgments, liabilities, costs and expenses, including reasonable
attorney's fees, arising out of or in connection with such party's use and
possession of the Subleased Premises, or arising out of the failure of such
party, its agents, contractors or employees to perform any covenant, term or
condition of this Sublease or of the Prime Lease to be performed by the
respective parties hereunder.
XIV. ASSIGNMENT AND SUBLETTING. Subtenant shall be allowed to assign
this Sublease or sublet the Subleased Premises in whole or in part, only with
the prior written consent of Sublandlord and Prime Landlord pursuant to the
terms of Section 14 of the Prime Lease. Any excess consideration derived from
said assignment or sublet shall be divided pursuant to the terms of Section 14.3
of the Prime Lease.
XV. BROKERS. Each of Sublandlord and Subtenant represents and
warrants to the other that it has not dealt with any broker in connection with
this Sublease other than BT Commercial Real Estate (the "Broker"), and each
agrees to indemnify, defend and hold the other harmless from and against any
breach of said representation and warranty. Sublandlord shall be responsible for
any commission to be paid to the Broker pursuant to a separate agreement.
XVI. INSURANCE. Subtenant shall comply with all insurance
requirements of the Prime Lease, including the provisions of Section 11 thereof.
Subtenant shall deliver to Sublandlord certificates which evidence such
insurance prior to the Sublease Term Commencement Date, and thereafter as
required under the Prime Lease, and shall name in all such insurance policies
both the Prime Landlord and Sublandlord as additional insureds thereunder.
XVII. PARKING. Subtenant shall be entitled to the unassigned and
non-exclusive use of seventeen (17) parking spaces in the Parking Facility, in
accordance with and subject to the terms of Section 36 of the Prime Lease.
XVIII. SIGNAGE. Subtenant shall be permitted to install signage at the
entry to the Subleased Premises upon prior written consent of Sublandlord and
Prime Landlord, which consent shall not be unreasonably withheld.
XIX. MISCELLANEOUS.
A. Counterparts. This instrument may be signed in
counterpart originals, which, taken together, shall
constitute a single original instrument.
B. Notices. Notices to Sublandlord or Subtenant required or
permitted hereunder shall be sent in the manner
prescribed in the Prime Lease to the Subleased
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Premises in the case of notices to Subtenant and in the
case of notices to Sublandlord, as follows:
E.piphany, Inc.
Attn: Director of Real Estate Operations
1900 South Norfolk Street, Suite 310
San Mateo, CA 94404
With a copy to:
Staubach Global Services
E.piphany Lease Administrator
15601 Dallas Parkway, Suite 400
Addison, Texas 74001
C. Amendments. This Sublease may not be changed or
terminated orally but only by an agreement in writing
signed by both Sublandlord and Subtenant.
D. Estoppel Certificates. Sublandlord and Subtenant each
agree to furnish within fifteen (15) days after written
request therefor by the other, a certificate stating (i)
that this Sublease is in full force and effect and has
not been amended or modified (or describing such
amendment or modification, if any); (ii) the dates
through which Basic Rent and additional rent have been
paid hereunder; and (iii) that there are no defaults
under this Sublease known to the signer of the
certificate (or specifying such defaults, if known).
E. No Waiver. The failure of either party to insist on
strict performance of any covenant or condition hereof,
or to exercise any option contained herein, shall not be
construed as a waiver of such covenant, condition or
option in any other instance.
F. Memorandum of Lease. Subtenant shall not record this
Sublease or any memorandum hereof.
G. Governing Law. This Sublease has been negotiated,
executed and delivered in the State of California, and
the parties agree that the rights and obligations of the
parties under this Sublease shall be governed and
construed in accordance with the laws of the State of
California.
H. Severability. The invalidity of any of the provisions of
this Sublease will not impair or affect in any manner
the validity, enforceability or effect of the rest of
this Sublease.
I. Entire Agreement. All understandings and agreements,
oral or written, heretofore made between the parties
hereto are merged in this Sublease, which alone fully
and completely expresses the agreement between
Sublandlord and Subtenant.
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J. Relationship Between the Parties. This Sublease does not
create the relationship of principal and agent, nor does
it create any partnership, joint venture, or any
association or relationship between Sublandlord and
Subtenant other than as and to the extent specifically
provided in this Sublease, the sole relationship of
Sublandlord and Subtenant being that of sublandlord and
subtenant as provided in this Sublease.
K. Remedies Cumulative. Except as specifically provided
herein, all rights and remedies of Sublandlord under
this Sublease shall be cumulative and none shall exclude
any other rights and remedies allowed by law.
L. Condition Precedent. The effectiveness of this Sublease
is expressly subject to and conditional upon obtaining
Prime Landlord's written consent to this Sublease
pursuant to Section 14 of the Prime Lease.
M. Termination. If either Prime Landlord or Sublandlord
terminates the Prime Lease pursuant to its terms or if
the Prime Lease otherwise terminates or expires, this
Sublease shall likewise and simultaneously terminate.
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IN WITNESS WHEREOF, the parties have executed this Sublease as an
instrument under seal as of the date first written above.
SUBLANDLORD:
E.PIPHANY, INC., a Delaware corporation
By: /s/
-----------------------------------
Name:
Title: Senior Vice President and
Chief Investment Officer
SUBTENANT:
SINA.com
By: /s/
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Name: Frank Hurst Lin
Title: VP of BD, GM
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