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1.
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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”).
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2.
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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.”
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3.
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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.
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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.
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4.
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TENANT IMPROVEMENTS
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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).
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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.
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5.
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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.
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6.
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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
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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.
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Sublessee may take possession of the
Premises for the permitted use (described in section 9 below)
commencing as of January 1, 2009.
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7.
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RENT.
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7.1
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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.
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7.2
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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.
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7.3
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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.
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7.4
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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:
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7.4.1
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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.
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7.4.2
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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
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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.
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7.4.3
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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.
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7.5
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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.
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8.
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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.
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9.
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USE OF PREMISES;
PARKING.
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9.1
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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.
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9.2
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Sublessee is entitled to its pro
rata share of parking, as per Section 6.2 of the Master
Lease.
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10.
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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.
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11.
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OTHER PROVISIONS OF
SUBLEASE.
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11.1.
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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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