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SUBLEASE

Sublease Agreement

SUBLEASE | Document Parties: OMNITURE, INC. | Active Network, Inc | Omniture, Inc | Seaview PFG, LLC | WebSideStory, Inc You are currently viewing:
This Sublease Agreement involves

OMNITURE, INC. | Active Network, Inc | Omniture, Inc | Seaview PFG, LLC | WebSideStory, Inc

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Title: SUBLEASE
Date: 2/27/2009
Industry: Software and Programming     Sector: Technology

SUBLEASE, Parties: omniture  inc. , active network  inc , omniture  inc , seaview pfg  llc , websidestory  inc
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EXHIBIT 10.29

SUBLEASE

1.

 

PARTIES.
This Sublease, dated as of August 25, 2008, is made between Omniture, Inc., a Delaware corporation (“Sublessor”) and The Active Network, Inc., a Delaware corporation (“Sublessee”).

 

2.

 

MASTER LEASE.
Sublessor is the named Tenant under a written Office Lease dated as of August 23, 1999 (as amended, the “Master Lease”) wherein Seaview PFG, LLC (as successor-in-interest to LNR Seaview, Inc., “Landlord”) leased to Sublessor (as Tenant and successor-in-interest to WebSideStory, Inc.) the certain office space in the building located at 10182 Telesis Court, San Diego, California 92121 consisting of area on the fourth, fifth, and sixth floors of that building (as defined in the Master Lease, the “Tenant Premises”). The Master Lease (including without limitation the First Amendment date as of July 3, 2001 and the Second Amendment dated as of December 7, 2005) is attached hereto as Exhibit “A.”

 

3.

 

PREMISES; FURNITURE.
Sublessor hereby subleases to Sublessee on the terms and conditions set forth in this Sublease the entire Suite 600, to wit approximately 18,599 rentable square feet located on a portion of the Sixth Floor of the Building along with all tenant’s improvements located therein (the “Premises”). The taking of possession of the Premises by Sublessee shall be conclusive evidence as against Sublessee that Sublessee accepts the same “as-is” and that the Premises were in good and satisfactory condition at the time such possession was taken.

 

 

 

Sublessee shall during the Sublease Term also be entitled to use the furniture and other equipment listed in Exhibit B to this Sublease, which is incorporated herein by this reference. Said use shall be at no additional charge to Sublessee (other than payment of Rent as described below). At the conclusion of the Sublease Term and contingent upon Sublessee’s fulfillment of its obligations hereunder, Sublessee shall be deemed owner all of such furniture and other equipment listed in Exhibit B with no further payment to Sublessor.

 

4.

 

TENANT IMPROVEMENTS .
Sublessee shall have the right to make tenant improvements to the Premises, consistent with the terms and conditions identified in the Master Lease following approval and/or acceptance of Sublessor and Landlord, provided that Sublessee shall be responsible for restoring the Premises to its original condition upon expiration or termination of the Sublease Term (defined below).

 

 

 

Sublessee may use the furniture and network cabling that exists in the Premises as of the Commencement Date (defined below). All furniture shall be subject to a written inventory that shall be approved by each of Sublessee and Sublessor. At the expiration or termination of the Sublease Term, Sublessee shall own the furniture as per said written inventory with Sublessee’s satisfactory performance hereunder being Sublessor’s sole compensation for such furniture.

 

5.

 

WARRANTY BY SUBLESSOR.
Sublessor warrants and represents to Sublessee that the Master Lease has not been amended or modified except as expressly set forth herein, that Sublessor is not now, and as of the commencement of the Sublease Term hereof will not be, in default or breach of any of the provisions of the Master Lease, and that Sublessor has no knowledge of any claim by Landlord that Sublessor is in default or breach of any of the provisions of the Master Lease.

 

6.

 

TERM.
The Term of this Sublease (the “Sublease Term”) shall commence as of November 1, 2008 (the “Commencement Date”) and end on January 31, 2013 (“Termination Date”) unless otherwise sooner terminated in accordance with the provisions of this Sublease. In the event the Term commences on a date other than the Commencement Date, Sublessor and Sublessee shall execute a memorandum setting forth the actual date of

 


 

 

 

commencement of the Term. Possession of the Premises (“Possession”) shall be delivered to Sublessee on the Commencement Date and Sublessee may access the Premises through December 31, 2008 for the sole purpose of allowing Sublessee to complete any tenant improvements as permitted in Section 4 above and Sublessee’s IT/telco cabling and installations, furniture relocation, or reconfiguring. Tenant shall not conduct business in the Premises before December 31, 2008. If for any reason Sublessor does not deliver Possession to Sublessee on the Commencement Date, then Sublessor shall not be subject to any liability for such failure, the Termination Date shall not be extended by the delay, and the validity of this Sublease shall not be impaired. Notwithstanding the foregoing, if Sublessor has not delivered Possession to Sublessee within ten (10) days after the Commencement Date, then at any time thereafter and before delivery of Possession, Sublessee may give written notice to Sublessor of Sublessee’s intention to cancel this Sublease. Said notice shall set forth an effective date for such cancellation which shall be at least ten (10) days after delivery of said notice to Sublessor. If Sublessor delivers Possession to Sublessee on or before such effective date, this Sublease shall remain in full force and effect. If Sublessor fails to deliver Possession to Sublessee on or before such effective date, this Sublease shall be cancelled, in which case all consideration previously paid by Sublessee to Sublessor on account of this Sublease shall be returned to Sublessee, this Sublease shall thereafter be of no further force or effect, and Sublessor shall have no further liability to Sublessee on account of such delay or cancellation.

 

 

 

Sublessee may take possession of the Premises for the permitted use (described in section 9 below) commencing as of January 1, 2009.

 

7.

 

RENT.

7.1

 

Definitions . An “Annual Period” shall mean each successive and consecutive twelve (12) month period commencing as of the “Rent Commencement Date,” provided that the Annual Period occurring when this Sublease expires may be less than twelve (12) months. The “Rent Commencement Date” shall mean January 1, 2009; subject to the provisions of section 7.3 below.

 

7.2

 

Minimum Rent. Sublessee shall pay to Sublessor as minimum rent during the first Annual Period, without deduction, setoff, notice, or demand, at Omniture, Inc., Dept. CH 17426, Palatine, Illinois 60055 or at such other place as Sublessor shall designate from time to time by notice to Sublessee, the sum of forty-four thousand six hundred thirty-seven dollars sixty cents ($44,637.60) per month, in advance on the first day of each month of the Term (the “Minimum Rent”). The monthly Minimum Rent payments during each Annual Period after the first Annual Period shall increase in the amount of three and one-half percent (3.5%) over the monthly Minimum Rent payments during the previous Annual Period.

 

7.3

 

Free Rent . Notwithstanding the Minimum Rent definition set forth above, Sublessee shall have no obligation to pay Minimum Rent for the month of January 2009. Accordingly, Minimum Rent for the first Annual Period shall be payable commencing February 1, 2009.

 

7.4

 

Additional Rent. In addition to Minimum Rent, the following amounts shall be paid by Sublessee to Sublessor without deduction, setoff, notice, or demand, at Omniture, Inc., Dept. CH 17426, Palatine, Illinois 60055 or at such other place as Sublessor shall designate from time to time by notice to Sublessee:

 

7.4.1

 

Commencing as of the Rent Commencement Date, Sublessee shall (in addition to paying Minimum Rent) pay to Sublessor as additional rent a portion of the annual Utilities Costs (as defined in the Master Lease) applicable to the Premises (calculated on a pro rata basis according to rentable square feet of the Premises and Tenant Premises). Notwithstanding the foregoing, Sublessee shall have no obligation to pay Utilities Costs for the month of January 2009. Accordingly, Utilities Costs for the first Annual Period shall be payable commencing February 1, 2009.

 

7.4.2

 

Commencing as of January 1, 2010, Sublessee shall (in addition to paying Minimum Rent) pay to Sublessor as additional rent a portion of the Direct Expenses (as defined in the Master Lease) applicable to the Premises (calculated on a pro rata basis according to rentable square feet of the Premises and Tenant Premises) as set forth in this Section 7.4.2. Minimum Rent for 2009 includes all Direct Expenses. Thereafter, increases in Direct Expenses shall be payable (pro rata) by Sublessee to

 


 

 

 

Sublessor as additional rent, i.e. 2009 is the Sublessee’s Base Year (as such term is used in the Master Lease) and no increases in Direct Expenses are passed through for 2009 as additional rent. Any such additional rent shall be payable as and when Direct Expenses are payable by Sublessor to Landlord under the Master Lease.

 

7.4.3

 

As and when adjustments between estimated and actual Operating Costs are made under the Master Lease, the obligations of Sublessor and Sublessee hereunder shall be adjusted in a like manner; and if any such adjustment shall occur after the expiration or earlier termination of the Term, then the obligations of Sublessor and Sublessee under this Section 7.4 shall survive such expiration or termination. Sublessor shall, upon request by Sublessee, furnish Sublessee with copies of all statements submitted by Landlord of actual or estimated Direct Expenses and/or Utilities Costs during the Term.

7.5

 

Other Utilities. Sublessee shall be responsible for arranging for the use of and payment for any utilities for the Premises that are not provided by Landlord and included as Utilities Costs.

 

8.

 

SECURITY DEPOSIT.
Sublessee shall deposit with Sublessor upon execution of this Sublease the sum of eighty-nine thousand two hundred seventy-five dollars twenty cents ($89,275.20) as security for Sublessee’s faithful performance of Sublessee’s obligations hereunder (“Security Deposit”). If Sublessee fails to pay rent or other charges when due under this Sublease, or fails to perform any of its other obligations hereunder, Sublessor may use or apply all or any portion of the Security Deposit for the payment of any rent or other amount then due hereunder and unpaid, for the payment of any other sum for which Sublessor may become obligated by reason of Sublessee’s default or breach, or for any loss or damage sustained Sublessor as a result of Sublessee’s default or breach. If Sublessor so uses any portion of the Security Deposit, Sublessee shall, within ten (10) days after written demand by Sublessor, restore the Security Deposit to the full amount originally deposited, and Sublessee’s failure to do so shall constitute a default under this Sublease. Sublessor shall not be required to keep the Security Deposit separate from its general accounts, and shall have no obligation or liability for payment of interest on the Security Deposit. In the event Sublessor assigns its interest in this Sublease, Sublessor shall deliver to its assignee so much of the Security Deposit as is then held by Sublessor. Within thirty (30) days after the Term has expired, or Sublessee has vacated the Premises, or any final adjustment pursuant to this Sublease has been made, whichever shall last occur, and provided Sublessee is not then in default of any of its obligations hereunder, the Security Deposit, or so much thereof as had not therefore been applied by Sublessor, shall be returned to Sublessee or to the last assignee, if any, of Sublessee’s interest hereunder.

 

9.

 

USE OF PREMISES; PARKING.

9.1

 

The Premises shall be used and occupied only for general office use or other use permitted per applicable zoning and as further described in the Master Lease and for no other use or purpose.

 

9.2

 

Sublessee is entitled to its pro rata share of parking, as per Section 6.2 of the Master Lease.

 

10.

 

ASSIGNMENT AND SUBLETTING.
Sublessee shall not assign this Sublease or further sublet all or any part of the Premises without the prior written consent of Sublessor and the consent of Landlord, as governed in particular by with the provisions of Section 14 of the Master Lease.

 

11.

 

OTHER PROVISIONS OF SUBLEASE.

11.1.

 

Duties under Master Lease . All applicable terms and conditions of the Master Lease are incorporated into and made a part of this Sublease as if Sublessor were the landlord thereunder, and Sublessee the tenant thereunder. Sublessee assumes and agrees to perform the tenant’s obligations under the


 
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