CONDITIONAL LEASE TERMINATION AGREEMENT
THIS CONDITIONAL LEASE TERMINATION AGREEMENT ("Termination Agreement")
is made as of the ___ of December, 2001 by and between EOP-SHORELINE TECHNOLOGY
PARK, L.L.C., a Delaware limited liability company ("Landlord") and COMMTOUCH
INC., a California corporation (formerly known as Commtouch Software, Inc., a
California corporation) ("Tenant").
RECITALS:
A. Landlord and Tenant are parties to that certain lease dated as of
October 28, 1999 (the "Lease") relating to approximately 71,404
rentable square feet (the "Premises") which consist of the entirety of
the building commonly known as Building 7, located at 2029 Stierlin
Court, Mountain View, California (the "Building"), all as more
particularly described in the Lease.
B. The Term is scheduled to expire on May 14, 2007 (the "Stated
Termination Date"), and Tenant desires to terminate the Lease prior to
the Stated Termination Date. Landlord has agreed that, if Landlord and
Tenant enter into that certain Shoreline Technology Park Office Lease
Agreement (the "New Lease") on or before December 20, 2001 for
approximately 5,490 rentable square feet (the "New Premises"), then
Landlord shall agree to the early termination of the Lease on the terms
and conditions contained in this Termination Agreement.
NOW, THEREFORE, in consideration of the above recitals which by this
reference are incorporated herein, the mutual covenants and conditions contained
herein and other valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Landlord and Tenant agree as follows:
1. If Landlord enters into the New Lease (defined in Recital B above) as
provided in Recital B above, then Landlord shall send Tenant a notice
terminating the Lease (the "Termination Notice"), in which event, the
Lease shall be deemed terminated in accordance with, and subject to,
the terms and conditions of this Termination Agreement effective as of
December 27, 2001 (the "Early Termination Date"). Upon delivery of the
Termination Notice, and subject to the satisfaction of the conditions
contained in this Termination Agreement, the Lease shall be deemed
terminated effective as of the Early Termination Date, subject to the
agreements, representations, warranties and indemnities contained in
this Termination Agreement, including, without limitation, payment of
the Termination Fee described in Section 11 below and the amounts due
to Landlord described in Section 3 below.
2. On or before December 20, 2001, Tenant shall have delivered to Landlord
an executed New Lease together with the sum of $48,586.50 which
represents Base Rent (as such term is defined in the New Lease) for the
first 3 months of the Term (as such term is defined therein) and the
sum of $16,195.50 which represents the Security Deposit (as such term
is defined in the New Lease) owing under the New Lease.
3. The parties hereto acknowledge and agree that Tenant has failed to
tender payment of Base Rent, Additional Rent and all other amounts due
under the Lease which failure commenced on or about October 1, 2001 and
such failure has continued and will continue through and including the
Early Termination Date, resulting in a total delinquent amount past due
to Landlord as of December 27, 2001 equal to $552,655.07. Pursuant to
Section 19 of the Lease, such failure constitutes an event of default
by Tenant. Simultaneously with the execution of this Termination
Agreement, Tenant shall have delivered to Landlord by cashier's or
certified check or by wire transfer of immediately available funds to
an account designated by Landlord an amount equal to $381,000.00. On or
before January 2, 2002, Tenant shall have delivered to Landlord by
cashier's or certified check or by wire transfer of immediately
available funds to an account designated by Landlord an amount equal to
$171,655.07 ("Partial Payment II").
4. On or before the date of this Termination Agreement, Tenant shall have
delivered to Landlord by cashier's or certified check or by wire
transfer of immediately available funds to an account designated by
Landlord an amount equal to $43,492.05 (the "Sublease Cash Security
Deposit") which represents the amount of cash paid to Tenant by
MarketMile, L.L.C. ("Sublessee") pursuant to Section 15.2 of that
certain Sublease by
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and between Tenant, as Sublessor, and Sublessee, and dated as of July
20, 2001 (the "Sublease"). Effective as of the Early Termination Date,
Tenant hereby assigns, quitclaims and surrenders to Landlord, its
successors and assigns, all of Tenant's right, title and interest in
and to the Sublease Cash Security Deposit.
5. In consideration for Landlord's execution of this Termination
Agreement, Tenant hereby conveys to Landlord all furniture located in
the Premises as more particularly described on the attached Exhibit A
(the "Furniture") and in accordance with the terms and conditions of
the Bill of Sale (the "Bill of Sale") attached hereto as Exhibit B. On
or before the execution of this Termination Agreement, Tenant shall
execute and deliver to Landlord the original Bill of Sale. By execution
of this Termination Agreement, Landlord is deemed to have inspected the
Furniture and found the same to be present in the quantity as described
in Exhibit A and located in the Premises and in satisfactory condition.
6. On or before the execution of this Termination Agreement, Tenant shall
deliver to Landlord the original of that certain letter of credit made
by Subtenant, as Applicant, for the benefit of Tenant, as Beneficiary,
in the amount of $86,985.00, issued by Wells Fargo Bank as Irrevocable
Standby Letter of Credit No. NZS414880 (the "Sublease LC"),
representing the transfer of the Sublessee's Security Deposit defined
in Section 15.1 of the Sublease (the "Sublease LC Security Deposit")
from Tenant to Landlord, and Tenant hereby assigns all of its right,
title and interest in the Sublease LC Security Deposit and the proceeds
of the Sublease LC to Landlord. Provided the Sublease LC is effectively
transferred to Landlord by Wells Fargo Bank or any of its successors or
assigns (collectively, the "Bank"), Landlord agrees to assume the
obligation to return same to the Sublessee in accordance with the terms
of the Sublease. In the event that the foregoing transfer of the
Sublease LC Security Deposit by the Bank to Landlord does not occur on
or before the Early Termination Date, Tenant hereby agrees that during
the term of the Sublease and prior to any such transfer of the Sublease
LC Security Deposit to Landlord, Tenant shall use its best efforts to
fully cooperate with Landlord with respect to any effort by Landlord to
draw upon the Sublease LC Security Deposit requested in writing or
otherwise instituted by Landlord. Such efforts shall include, but shall
not be limited to, providing the required certification and all other
documentation to the Bank, participating, at Landlord's request, in
verbal and/or written correspondence with the Bank, and participating,
at Landlord's request, in any legal or other action, at Landlord's
costs and expense with respect to the Sublease LC Security Deposit.
7. Effective as of the Early Termination Date, Tenant remises, releases,
quitclaims and surrenders to Landlord, its successors and assigns, the
Lease and all of the estate and rights of Tenant in and to the Lease
and the Premises, and Tenant forever releases and discharges Landlord
from any and all claims, demands or causes of action whatsoever against
Landlord or its successors and assigns, whether known or unknown,
arising out of or in connection with the Premises or the Lease and
forever releases and discharges Landlord from any obligations to be
observed or performed by Landlord under the Lease after the Early
Termination Date. Further, effective as of the Early Termination Date,
Tenant hereby assigns all of Tenant's right, title, interest and
obligations (which obligations arise after the Early Termination Date)
in and to the Sublease as "Sublessor" including, without limitation,
all rights of Tenant to receive any payments from Sublessee under the
Sublease therein to Landlord and Landlord assumes all of such right,
title, interest and obligations (which obligations arise after the
Early Termination Date) in and to the Sublease as "Sublessor".
8. Subject to the agreements, representations, warranties and indemnities
contained in this Termination Agreement, Landlord agrees to accept the
surrender of the Lease and the Premises from and after the Early
Termination Date and, effective as of the Early Termination Date,
forever releases and discharges Tenant from any obligations to be
observed and performed by Tenant under the Lease after the Early
Termination Date, provided that Tenant has satisfied, performed and
fulfilled all of the agreements set forth in this Termination
Agreement, and each of the representations and warranties set forth in
Section 10 below are true and correct.
9. On or prior to the Early Termination Date, Tenant shall:
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(a) Fulfill all covenants and obligations of Tenant under the
Lease applicable to the period prior to and including the
Early Termination Date (subject to the Partial Payment II
which shall be paid to Landlord no later than January 2,
2002).
(b) Completely vacate and surrender the Premises to Landlord
(excluding that portion of the Premises which comprises the
New Premises) in accordance with the terms of the Lease.
Without limitation, Tenant shall leave the Premises in a
broom-clean condition and except for the Furniture, free of
all movable furniture and equipment and shall deliver the keys
to the Premises to Landlord or Landlord's designee. In the
event Tenant fails to so vacate and surrender the Premises to
Landlord, Article 25 of the Lease shall apply to such failure
and Tenant shall be liable to Landlord in accordance with the
terms and conditions thereof.
10. Tenant represents and warrants that (a) Tenant is the rightful owner of
all of the Tenant's interest in the Lease; (b) Tenant has not made any
disposition, assignment, sublease, or conveyance of the Lease or
Tenant's interest therein, except with respect to the Sublease and that
certain Sublease by and between Tenant and Silverback Systems, Inc., a
Delaware corporation ("Sublessee II") dated as of December 30, 2000
(the "Sublease II") and covering a portion of the New Premises, as more
particularly defined in the Sublease II (the "Sublease II Space"); (c)
Tenant has no knowledge of any fact or circumstance which would give
rise to any claim, demand, obligation, liability, action or cause of
action arising out of or in connection with Tenant's occupancy of the
Premises; (d) no other person or entity has an interest in the Lease,
collateral or otherwise; and (e) there are no outstanding contracts for
the supply of labor or material except as expressly stated in this
Termination Agreement and no work has been done or is being done in, to
or about the Premises which has not been fully paid for (or will be
fully paid for to Tenant's best knowledge on or before the Early
Termination Date) and for which appropriate waivers of mechanic's liens
have not been obtained. The foregoing representation and warranty shall
be deemed to be remade by Tenant in full as of the Early Termination
Date. On or before the Early Termination Date, the Sublessee II shall
have vacated and surrendered possession of the Sublease II Space in its
entirety to Tenant. Tenant shall indemnify, defend and hold Landlord,
its trustees, members, principals, beneficiaries, partners, officers,
directors, employees, mortgagee(s) and agents ("Landlord Related
Parties") harmless against and from all liabilities, obligations,
damages, penalties, claims, actions, costs, charges and expenses,
including, without limitation, reasonable attorneys' fees and other
professional fees (if and to the extent permitted by any applicable
law), which may be imposed upon, incurred by or asserted against
Landlord or any of the Landlord Related Parties and arising out of or
in connection with Sublessee II, the Sublease II, the Sublease II Space
and /or the costs and expenses of the supply of labor or material or
other work as each of the foregoing is described in clause (e) above.
Tenant has disclosed to Landlord by a separate writing those contracts
or other agreements entered into by Tenant or any of Tenant's
employees, contractors, invitees, licensees or related parties for
services, materials and/or any other item(s) and which either directly
or indirectly affect or encumber the Building and/or the property upon
which the Building is located, or otherwise may become the basis of a
mechanics lien claim, foreclosure action or any other claim or cause of
action against Landlord or the Building (the "Outstanding Contracts").
On or before the Early Termination Date, with respect to each
Outstanding Contract, Landlord shall notify Tenant in writing (the
"Outstanding Contract Notice") to either (i) assign in writing any such
Outstanding Contract to Landlord, or (ii) terminate any such
Outstanding Contract. In the event that Landlord fails to deliver the
Outstanding Contract Notice to Tenant in accordance with the terms of
this Section 10, such failure shall not be deemed a default of this
Termination Agreement by Landlord and such failure shall be deemed to
be Landlord's election to require Tenant to terminate all Outstanding
Contracts, in which event Tenant shall proceed to terminate the
Outstanding Contracts in accordance herewith. With respect to those
Outstanding Contracts that Landlord requires Tenant to terminate, such
termination shall be effective no later than 45 days after delivery of
the Outstanding Contract Notice to Tenant. With respect to those
Outstanding Contracts that Tenant is required to assign to Landlord in
writing, such assignments shall be effective no later than 10 days
after delivery of the Outstanding Contract Notice to Tenant. Landlord
hereby reserves a right to assume, or require termination of, any such
Outstanding
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Contract in accordance with the terms hereof. Tenant shall, within 5
days of delivery of the Outstanding Contract Notice, deliver the
original of each Outstanding Contract assigned to and assumed by
Landlord pursuant to this Section 10, together with Tenant's files and
records respecting the same. Tenant shall indemnify, defend and hold
Landlord and the Landlord Related Parties harmless against and from all
liabilities, obligations, damages, penalties, claims, actions, costs,
charges and expenses, including, without limitation, reasonable
attorneys' fees and other professional fees (if and to the extent
permitted by any applicable law), which may be imposed upon, incurred
by or asserted against Landlord or any of the Landlord Related Parties
and arising out of or in connection with the following: (x) any
contracts or other agreements that, by definition, would be an
Outstanding Contract but were not disclosed to Landlord by Tenant in
this Termination Agreement, and (y) with respect to the period prior to
the effective date of a written assignment to and assumption by
Landlord, any of the Outstanding Contracts that are assigned to and
assumed by Landlord in writing, and (z) any Outstanding Contract which
is not terminated following Landlord's Outstanding Contract Notice
which requires termination thereof. In no event shall Landlord be
liable for any Outstanding Contracts (whether disclosed or undisclosed)
except to the extent Landlord expressly assumes in writing any such
Outstanding Contracts and for the periods stated in such written
assumption.
11. Tenant shall pay to Landlord a Termination Fee (as defined below) in
accordance with the following:
(a) On or before the date of this Termination Agreement, Tenant
shall pay to Landlord, the sum of $1,006,417.76 (the "Initial
Termination Fee") in consideration for Landlord's execution of
this Termination Agreement, which, among other things,
releases Tenant from future Rent obligations under the Lease
arising from and after the Early Termination Date. Landlord
currently is holding the sum of $975,000.00 as the security
deposit (the "Security Deposit") required pursuant to the
terms of Section 6 of the Lease in the form of a letter of
credit (the "Letter of Credit") from Tenant and issued by
Silicon Valley Bank as Irrevocable Standby Letter of Credit
No. SVB99IS1720 and dated November 4, 1999 and of which
Landlord is the beneficiary thereunder. Landlord and Tenant
acknowledge and agree that upon the full and proper execution
of this Termination Agreement by Landlord and Tenant (i)
Landlord shall be entitled to draw on the Letter of Credit and
apply the Letter of Credit to the Initial Termination Fee
required hereunder, and therefore, Landlord shall retain the
Security Deposit in its entirety; and (ii) Tenant shall
release any and all claims to the Security Deposit. Tenant
shall deliver to Landlord cash in an amount equal to the
difference between the Initial Termination Fee less the amount
of the Security Deposit. Notwithstanding anything to the
contrary contained in the Lease or this Termination Agreement
with respect to Landlord's right to apply the Security Deposit
and/or draw down on the Letter of Credit, Tenant agrees that
if on or before the date of this Termination Agreement (x)
Tenant fails to pay to Landlord the Initial Termination Fee as
required above; or (y)(i) Landlord is unable to draw on the
Letter of Credit for any reason whatsoever after making good
faith efforts to make any such draw (without obligation to
expend additional funds), or (ii) Tenant fails to pay to
Landlord cash equal to the difference between the amount of
the Letter of Credit which Landlord is able to draw down and
the total amount of the Initial Termination Fee; or (z) on or
before January 2, 2002, Tenant fails to make the Partial
Payment II to Landlord in accordance with this termination
Agreement, then, in the case of any of clauses (x), (y) or (z)
above, Tenant shall be deemed to be in default hereof and, at
Landlord's sole option, this Termination Agreement shall be
null and void and of no force and effect and the Term of the
Lease shall be as stated in the Lease, without giving effect
to this Termination Agreement. Landlord hereby acknowledges
and agrees that as part of its good faith efforts described in
clause (y)(i) above, Landlord shall submit a draw request to
Silicon Valley Bank in accordance with the terms and
conditions respecting a beneficiary draw contained in the
Letter of Credit.
(b) Tenant shall pay to Landlord, by cashier's or certified check
or by wire transfer of immediately available funds to an
account designated by Landlord an additional termination fee
(the "Additional Termination Fee, together with the Initial
Termination Fee, the "Termination Fee") as provided in this
Section 11(b). Any sums invested from any source whatsoever in
Tenant or in Commtouch Software
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Ltd. (the "Investment Dollars") commencing on the date
following the Early Termination Date ("Investment Commencement
Date") and ending on the first year anniversary date of the
Investment Commencement Date (the "Investment Period") shall
be subject to the following payment schedule (the "Payment
Schedule"): Within 3 business days following receipt, Tenant
shall pay to Landlord (i) 5% of any of the initial $5,000,000
Investment Dollars received and (ii) 10% of any of the
subsequent $5,000,000 Investment Dollars received. Tenant
shall, within ten (10) days following the end of each calendar
quarter, provide to Landlord a written statement prepared by
either of an executive officer of Tenant, Tenant's Vice
President of Finance or Tenant's certified public accounting
firm certifying either: (x) Tenant and/or Commtouch Software
Ltd. has received no Investment Dollars the previous calendar
quarter, or (y) the amount of and other material details
regarding any Investment Dollars received by Tenant or
Commtouch Software Ltd. the previous calendar quarter.
Landlord shall have the right to transfer and assign, in whole
or in part, all of its rights in and to the Investment
Dollars, or the right to receive the same, at any time. Unless
otherwise indicated in writing by Landlord, payments of the
Additional Termination Fee shall be delivered by Tenant to the
following address: EOP Operating Limited Partnership, As agent
for EOP-Shoreline Technology Park, Dept. #8824, Los Angeles,
California 90084-8824.
Except as expressly modified herein, each payment of the Additional
Termination Fee shall be tendered to Landlord in accordance with the
terms of the New Lease, at the address indicated for the payment of
Base Rent (as defined in the New Lease) as provided therein, as the
same may be modified from time to time. In the event that Tenant fails
to make any payment of the Additional Termination Fee to Landlord in
strict accordance with the Payment Schedule and the terms and
conditions of this Termination Agreement, Landlord may declare this
Termination Agreement null and void and all sums owed by Tenant to
Landlord (including, without limitation, any unpaid Termination Fee,
Base Rent and Tenant's Pro Rata Share of Taxes and Expenses) shall be
due in full to Landlord without notice or cure right and Landlord shall
be entitled to exercise all of its rights and remedies under the Lease
and at law which arise following an event of default by Tenant pursuant
to the Lease and this Termination Agreement. Landlord's acceptance of
any payment of the Additional Termination Fee shall not be deemed to be
payment in full by Tenant of the Termination Fee.
12. Intentionally Omitted.
13. On or before the date of this Termination Agreement, Tenant shall have
delivered to Landlord an estoppel certificate fully executed by
Sublessee in the form attached hereto as Exhibit C.
14. Section 14.A of the Lease shall survive the termination of the Lease
pursuant to this Termination Agreement to the extent any such matters
arise or occur during the Term of the Lease but whether or not such
matters are discovered during the Term or after the Early Termination
Date. Section 10 of this Termination Agreement shall survive
termination of the Lease and fulfillment of Tenant's obligations
contained herein and the representations and warranties made by Tenant
stated therein shall be deemed remade as of the Early Termination Date.
15. Each signatory of this Termination Agreement represents hereby that he
or she has the authority to execute and deliver the same on behalf of
the party hereto for which such signatory is acting.
16. In the event that Tenant is in default or breach of the terms of this
Termination Agreement, including, without limitation, Tenant's
obligation to pay to Landlord the Termination Fee and Tenant's
representations and warranties contained in Section 10 hereof, such
default, at Landlord's election, shall be deemed to be a default under
the terms of the New Lease and the Lease and Landlord shall be entitled
to enforce its rights and remedies contained therein.
17. Any notice that may or must be given by any party under this
Termination Agreement will be delivered in accordance with the terms
and conditions of the New Lease and at the addresses indicated in
Section I.L thereof, as the same may be modified from time to time.
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18. This Termination Agreement shall be binding upon and inure to the
benefit of Landlord and Tenant and their respective successors, assigns
and related entities.
[SIGNATURES ARE ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Termination
Agreement on the day and year first above written.
LANDLORD:
EOP-SHORELINE TECHNOLOGY PARK, L.L.C., a
Delaware limited liability company
By: EOP Operating Limited Partnership, a Delaware
limited partnership, its sole member
By: Equity Office Properties Trust, a
Maryland real estate investment
trust, its general partner
By: __________________________
Name: __________________________
Title: __________________________
TENANT:
COMMTOUCH INC., a California corporation
By: _____________________________
Name: _____________________________
Title: _____________________________
By: _____________________________
Name: _____________________________
Title: _____________________________
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EXHIBIT A
FURNITURE
Description Quantity
Workstations Teknion Transit 42
Ped Files 22
Mobile Screens 6
Conference chairs - Keilhauer Tom 49
Red chairs with tablet arm(tea cup) 1
Red chairs without tablet arm 1 seat (tea cup) 3
Reception chairs 2
Drum 24*22 (tall /narrow) 1
Drum 30x16 h (short/wide) 2
Credenza 22x48 maple 2
White/black office - 10x10 Teknion 2
Round Maple conference table48 Teknion Wood 1
Natural Maple Conf table (electrified) Room 107 1
120x54x28 1/2 Teknion Wood
Natural Maple Conf table (electrified) Room 135 1
213x60/111x28 1/2 Teknion Wood
Natural Maple Conf table (electrified) Room 158 1
96x60/111x28 1/2 Teknion Wood
Reception Desh with two lateral files 1
Workstations TOS 66
Ped Files 65
Mobile Screens 23
Double 2 drawer lateral with top 5
2 box drawer files 1
Lateral file 1
Aeron Chairs Herman Miller AE-113-AWA-AJ 66
Keilhauer Tom Chairs - Various colors 42
White/black office - 10x10 Teknion 3
Modular offices - black Teknion 3
Rectangular Conference Table 2
Natural Maple Conf table (electrified) Room 104,105 2
120x48x28 1/2 Teknion Wood
Natural Maple Conf table (electrified) Room 106 1
108x48x28 1/2 Teknion Wood
Round Maple conference table48 Teknion Wood 1
Maple Credenza 3
30x60 Table Plastic Laminate Table 8
Black Work Tables 3
Workstations TOS 22
Ped Files 22
Mobile Screens 6
Aeron Chairs Herman Miller AE-113-AWA-AJ 30
Keilhauer Tom Chairs - Various colors 12
Rectangular Conference Table 2
Double 2 drawer lateral with top 3
Round Maple conference table48 Teknion Wood 1
Front entry: 7 pocket magazine rack 1
Executive Offices -Wood with lateral file, credenza 9
and top cabinets
Wood Bookcases 10
2 drawer lateral file - wood 8
CEO meeting chairs 3
Aeron Chairs Herman Miller AE-113-AWA-AJ approx. 62
Keilhauer Tom Chairs - Various colors 41
2nd floor workstations TOS 133
Ped Files 133
Mobile Screens 45
Double 2 drawer lateral with top 6
2 box drawer files 16
3-high lateral file 2
8
2-high lateral file 12
Acctg Mobile files 10
Lunch Room tables (West Coast Industries) 150.311 special 10
Lunch Room chairs (Kusch) Pepe chair 40
Pepe Chair with leather seat 5
Advocate Cantilever side chair 17
Round Maple conference table 54 Teknion Wood 1
Natural Maple Conference Table (electrififed) room 250 1
96x60x28 1/2 Teknion Wood
Natural Maple Conf table (electrified) room 227 1
150x60x28 1/2 Teknion Wood
Natural Maple Conference table (electrifed) room 242 1
96x42x28 1/2 Teknion Wood
Natural Maple Conference table 84x36 Teknion Wood 1
Natural Maple Conference table 96x42 boat shapeTeknion Wood 1
Red chairs with tablet arm(tea cup) AGI 6
Red chairs without tablet arm 1 seat AGI tea cup 2
Red/maple chairs - Geiger Brickel Pinoint II 17
Modular offices - black Teknion 3
White/black office - 10x10 Teknion 2
Large office 15x10 black/white 2
Cube table 15x24x22 Nevins 1
Drum 24*22 (tall /narrow) Nevins 5
Drum 30x16 h (short/wide) Nevins 6
Credenza 22x90 maple 1
Credenza 22x48 maple 1
Mail slots/Cabinet 1
Drawing table 1
Black/Opaque screens 2
Orange slice chairs- 4
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EXHIBIT B
BILL OF SALE
KNOW ALL MEN BY THESE PRESENTS, that COMMTOUCH INC., a California corporation
("Seller"), for the sum of Ten Dollars ($10.00) paid by EOP-SHORELINE TECHNOLOGY
PARK, L.L.C., a Delaware limited liability company ("Purchaser") pursuant to
that certain Conditional Lease Termination Agreement, hereby sells to Purchaser
the personal property ("Personal Property") more particularly referred to in
Schedule A attached hereto in its "as-is, where-is" condition.
TO HAVE AND TO HOLD the same unto Purchaser to and for its own use and behalf
forever. Seller hereby agrees to pay all sales taxes payable by reason of the
transfer to Purchaser of said Personal Property and Seller shall indemnify
Purchaser in connection therewith. Seller hereby represents and warrants to
Purchaser that: (a) Seller is the rightful owner of all of the Personal
Property; (b) Seller has not made any disposition or conveyance of the Personal
Property; (c) Seller has no knowledge of any fact or circumstance which would
give rise to any claim, demand, obligation, liability, action or cause of action
arising out of or in connection with the Personal Property; and (d) no other
person or entity has an interest in the Personal Property, collateral or
otherwise.
IN WITNESS WHEREOF, Seller and Purchaser have caused these presents to be signed
by their duly authorized officers as of December __, 2001.
SELLER:
COMMTOUCH INC.,
a California corporation
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
By: _______________________________________
Name: _____________________________________
Title: ____________________________________
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SCHEDULE A
PERSONAL PROPERTY
Description Quantity
Workstations Teknion Transit 42
Ped Files 22
Mobile Screens 6
Conference chairs - Keilhauer Tom 49
Red chairs with tablet arm(tea cup) 1
Red chairs without tablet arm 1 seat (tea cup) 3
Reception chairs 2
Drum 24*22 (tall /narrow) 1
Drum 30x16 h (short/wide) 2
Credenza 22x48 maple 2
White/black office - 10x10 Teknion 2
Round Maple conference table48 Teknion Wood 1
Natural Maple Conf table (electrified) Room 107 1
120x54x28 1/2 Teknion Wood
Natural Maple Conf table (electrified) Room 135 1
213x60/111x28 1/2 Teknion Wood
Natural Maple Conf table (electrified) Room 158 1
96x60/111x28 1/2 Teknion Wood
Reception Desh with two lateral files 1
Workstations TOS 66
Ped Files 65
Mobile Screens 23
Double 2 drawer lateral with top 5
2 box drawer files 1
Lateral file 1
Aeron Chairs Herman Miller AE-113-AWA-AJ 66
Keilhauer Tom Chairs - Various colors 42
White/black office - 10x10 Teknion 3
Modular offices - black Teknion 3
Rectangular Conference Table 2
Natural Maple Conf table (electrified) Room 104,105 2
120x48x28 1/2 Teknion Wood
Natural Maple Conf table (electrified) Room 106 1
108x48x28 1/2 Teknion Wood
Round Maple conference table48 Teknion Wood 1
Maple Credenza 3
30x60 Table Plastic Laminate Table 8
Black Work Tables 3
Workstations TOS 22
Ped Files 22
Mobile Screens 6
Aeron Chairs Herman Miller AE-113-AWA-AJ 30
Keilhauer Tom Chairs - Various colors 12
Rectangular Conference Table 2
Double 2 drawer lateral with top 3
Round Maple conference table48 Teknion Wood 1
Front entry: 7 pocket magazine rack 1
Executive Offices -Wood with lateral file, credenza 9
and top cabinets
Wood Bookcases 10
2 drawer lateral file - wood 8
CEO meeting chairs 3
Aeron Chairs Herman Miller AE-113-AWA-AJ approx. 62
Keilhauer Tom Chairs - Various colors 41
2nd floor workstations TOS 133
Ped Files 133
Mobile Screens 45
Double 2 drawer lateral with top 6
2 box drawer files 16
11
3-high lateral file 2
2-high lateral file 12
Acctg Mobile files 10
Lunch Room tables (West Coast Industries) 150.311 special 10
Lunch Room chairs (Kusch) Pepe chair 40
Pepe Chair with leather seat 5
Advocate Cantilever side chair 17
Round Maple conference table 54 Teknion Wood 1
Natural Maple Conference Table (electrififed) room 250 1
96x60x28 1/2 Teknion Wood
Natural Maple Conf table (electrified) room 227 1
150x60x28 1/2 Teknion Wood
Natural Maple Conference table (electrifed) room 242 1
96x42x28 1/2 Teknion Wood
Natural Maple Conference table 84x36 Teknion Wood 1
Natural Maple Conference table 96x42 boat shapeTeknion Wood 1
Red chairs with tablet arm(tea cup) AGI 6
Red chairs without tablet arm 1 seat AGI tea cup 2
Red/maple chairs - Geiger Brickel Pinoint II 17
Modular offices - black Teknion 3
White/black office - 10x10 Teknion 2
Large office 15x10 black/white 2
Cube table 15x24x22 Nevins 1
Drum 24*22 (tall /narrow) Nevins 5
Drum 30x16 h (short/wide) Nevins 6
Credenza 22x90 maple 1
Credenza 22x48 maple 1
Mail slots/Cabinet 1
Drawing table 1
Black/Opaque screens 2
Orange slice chairs- 4
12
EXHIBIT C
FORM OF ESTOPPEL CERTIFICATE
TO: EOP-Shoreline Technology Park, L.L.C.
c/o Equity Office Properties Trust
5104 Old Ironside Dr., Suite 100
Santa Clara, CA 95054
Attn: Property Manager
("Landlord")
FROM: MarketMile L.L.C., a Delaware limited liability comapny
2029 Stierlin Court
Mountain View, California 94043
Attention: Gary Davis
( "Sublessee")
Sublessee hereby certifies the following information with respect to
the sublease by and between Sublessee and Commtouch Inc. (formerly known as
Commtouch Software, Inc.) dated as of July 20, 2001 (the "Sublease", including
any amendments to or modifications of the same) under which Sublessee is the
sublessee, and which Sublease covers certain premises located at 2029 Stierlin
Court, Mountain View, California (the "Premises") and agrees that Landlord may
rely upon the assertions contained in this Estoppel Certificate. Landlord is
"Landlord" under that certain Lease by and between Landlord and Commtouch Inc.
("Tenant") and dated October 28, 1999 (the "Lease"). Sublessee hereby certifies
the following:
1. The Sublease is in full force and effect and has not been modified or
amended except as follows:__________________________________ (if none, so
state).
2. Sublessee asserts no claim of default or offset or defense against the
payment of rent or other charges payable by Sublessee and asserts no claim
against Landlord and/or Tenant under the Sublease and the Lease in regard
to the Premises, except as follows: ______________________________. To the
best of Sublessee's knowledge and belief, there is no default by Tenant
and/or Landlord under the Lease and the Sublease and no event has occurred
that, with the passage of time or the giving of notice, or both, would
constitute a default by Tenant and/or Landlord under the Lease and/or the
Sublease, except as follows: Tenant has failed to pay rent and other sums
due and owed to Landlord under the Lease commencing October 1, 2001.
3. All fixed minimum rental has been through and including ___________, 2001,
and no rent under the Sublease has been paid more than one month in advance
of its due date, except as
follows:_____________________________________________________.
4. Sublessee will attorn to Landlord upon receipt of written notice thereof
from Landlord and the Sublease shall continue thereafter in full force and
effect.
5. The current annual fixed monthly base rent is $ ____________.
6. A security deposit of $ __________ has been paid to Tenant in the form of
cash. A security deposit of $ __________ has been paid to Tenant in the
form of a letter of credit.
7. Sublessee is not in default under the Sublease nor has any event occurred
which, with the passage of time or the giving of notice, or both, would
constitute a default or breach by Sublessee.
8. Sublessee recognizes and acknowledges it is making these representations to
Landlord with the intent that Landlord may rely hereon.
[SIGNATURES ON FOLLOWING PAGE]
3
DATE: ______________, 2001 SUBLESSEE
MARKETMILE, L.L.C., a Delaware limited
liability company
By: _______________________________
Name: _____________________________
Its: ______________________________
By: _______________________________
Name: _____________________________
Its: ______________________________
4