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SUBLEASE

Sublease Agreement

SUBLEASE | Document Parties: NIKU CORP | INFORMATICA CORPORATION You are currently viewing:
This Sublease Agreement involves

NIKU CORP | INFORMATICA CORPORATION

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Title: SUBLEASE
Date: 6/8/2005
Industry: Software and Programming     Law Firm: Hopkins & Carley; Buchalter Nemer Fields & Younger     Sector: Technology

SUBLEASE, Parties: niku corp , informatica corporation
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Exhibit 10.24

 

SUBLEASE

 

BY AND BETWEEN

 

INFORMATICA CORPORATION

 

AND

 

NIKU CORPORATION

 

FOR SUBLEASE PREMISES LOCATED AT

 

2000 SEAPORT BLVD, SUITES 100 AND 300

 

REDWOOD CITY, CALIFORNIA 94063

 

(A portion of Building 2)


TABLE OF CONTENTS

 

 

 

 

 

 

Section


 

  

Page


 

BASIC SUBLEASE INFORMATION

  

i

 

 

 

1.

  

SUBLEASE PREMISES

  

1

 

 

 

2.

  

INCORPORATION OF MASTER LEASE

  

3

 

 

 

3.

  

TERM AND TERMINATION

  

4

 

 

 

4.

  

OPTION TO RENEW

  

4

 

 

 

5.

  

RENT

  

5

 

 

 

6.

  

SERVICES AND UTILITIES

  

7

 

 

 

7.

  

MAINTENANCE

  

8

 

 

 

8.

  

ASSIGNMENT AND SUBLETTING

  

9

 

 

 

9.

  

NOTICES

  

10

 

 

 

10.

  

DEFAULTS

  

10

 

 

 

11.

  

PROVISIONS OF THE MASTER LEASE

  

10

 

 

 

12.

  

ALTERATIONS

  

11

 

 

 

13.

  

SURRENDER AND HOLDOVER

  

11

 

 

 

14.

  

SECURITY DEPOSIT

  

12

 

 

 

15.

  

HAZARDOUS MATERIALS

  

12

 

 

 

16.

  

SIGNAGE

  

13

 

 

 

17.

  

SUBTENANT’S INSURANCE

  

14

 

 

 

18.

  

MASTER LANDLORD’S CONSENT

  

14

 

 

 

19.

  

FURNITURE

  

14

 

 

 

20.

  

BROKERS

  

15

 

 

 

21.

  

INDEMNITY

  

15

 

 

 

22.

  

FITNESS CENTER

  

15

 

 

 

23.

  

CAFETERIA

  

16

 

 

 

24.

  

USE

  

16

 

 

 

25.

  

MISCELLANEOUS

  

16

 

 

 

26.

  

DAMAGE AND DESTRUCTION

  

17

 

 

 

27.

  

QUIET ENJOYMENT

  

17


TABLE OF CONTENTS

(continued)

 

 

 

 

EXHIBITS

 

 

Exhibit A

  

Copy of Master Lease

Exhibit B

  

Plan of Sublease Premises

Exhibit B-1

  

Plan of Warehouse and UPS Areas

Exhibit C

  

Hazardous Materials Definition

Exhibit D

  

Initial T.I.’s

Exhibit E

  

Furniture List

Exhibit F

  

Recurring Building Maintenance Costs for 2005


BASIC SUBLEASE INFORMATION

 

This Basic Sublease Information is provided solely as a convenience to summarize certain Sublease provisions and is not intended as a complete summary of all material terms and conditions of the Sublease. In the event of any inconsistency between any information shown in this Basic Sublease Information and the provisions of the Sublease, the provisions of the Sublease shall govern.

 

 

 

 

Address of Sublease Premises:

  

2000 Seaport Blvd., Suites 100 and 300

 

  

Redwood City, CA 94063

 

 

Subtenant’s Name and Address for Notice:

  

Prior to the Sublease Commencement Date:

 

 

 

  

Niku Corporation

 

  

305 Main Street

 

  

Redwood City, CA 94063

 

  

Attn: Chief Financial Officer

 

 

 

  

After the Sublease Commencement Date:

 

 

 

  

Niku Corporation

 

  

2000 Seaport Blvd., Suite 300

 

  

Redwood City, CA 94063

 

  

Attn: Chief Financial Officer

 

 

With a courtesy copy to:

  

Hopkins & Carley,

 

  

A Law Corporation

 

  

70 S. First Street

 

  

San Jose, CA 95113

 

  

Attn: Julie A. Frambach, Esq.

 

 

Sublandlord’s Name and Address for Notice:

  

Informatica Corporation

 

  

100 Cardinal Way

 

  

Redwood City, CA 94063

 

  

Attention: General Counsel

 

 

 

  

With a courtesy copy to:

 

  

Buchalter Nemer Fields & Younger

 

  

333 Market Street, 25th Floor

 

  

San Francisco, CA 94105

 

  

Attention: Robert B. Anderson, Esq.

 

 

Master Landlord:

  

Pacific Shores Investors, LLC

 

  

c/o Jay Paul Company

 

  

353 Sacramento Street, Suite 1740

 

  

San Francisco, CA 94111

 

 

 

  

With a courtesy copy to:

 

  

Thomas G. Perkins, Esq.

 

  

99 Almaden Blvd., 8th Floor

 

  

San Jose, CA 95113

 

-i-


 

 

 

 

 

Permitted Use:

  

Office, research and development and other uses permitted under the Master Lease

 

 

Rentable Area of Sublease Premises:

  

Approximately 51,063 rentable square feet, consisting of approximately 15,422 sf comprising a portion of the first floor and 35,641 comprising the 3rd Floor at 2000 Seaport Blvd. as shown on Exhibit B as well as the warehouse and UPS areas cross-hatched on Exhibit B-1 (provided that the warehouse and UPS areas are not included in the rentable square feet of the Sublease Premises, and Subtenant’s use of and access to the warehouse and UPS areas shall be shared with the other subtenants of the Building, if any, subject to the provisions of Section 1(f) of the Sublease).

 

 

Subtenant’s Percentage Share:

  

37.66%

 

 

Subtenant’s Share of Master Premises Operating Expenses:

  

37.66%

 

 

Sublease Commencement Date:

  

June 15, 2005, subject to adjustment pursuant to Section 1(b) of the Sublease.

 

 

Sublease Expiration Date:

  

August 18, 2008, subject to renewal in accordance with Section 4 of the Sublease.

 

 

Base Rent Commencement Date:

  

October 15, 2005, subject to adjustment pursuant to Section 1(b) of the Sublease.

 

 

Monthly Base Rent:

  

 

 

 

 

 

  

Period


 

  

Monthly

Base Rent


 

 

  

June 15, 2005 to August 14, 2005

  

None (Utilities and Janitorial Expenses only)

 

 

 

 

  

August 15, 2005 to October 14, 2005

  

None

(Utilities, Janitorial Expenses, Master Premises Operating Expenses and Building Maintenance Costs Only)

 

 

 

 

  

October 15, 2005 to October 14, 2006

  

$33,190.95 ($0.65 per rsf per month)

 

 

 

 

  

October 15, 2006 to November 14, 2007

  

$44,935.44 ($0.88 per rsf per month)

 

 

 

 

  

November 15, 2007 to August 14, 2008

  

$50,041.74 ($0.98 per rsf per month)

 

-ii-


 

 

 

Security Deposit:

  

$90,000

 

 

Prepaid Rent:

  

$70,977.57

 

 

Subtenant’s Broker:

  

Wayne Mascia Associates

 

 

Sublandlord’s Broker:

  

BT Commercial

 

-iii-


SUBLEASE

 

THIS SUBLEASE (the “Sublease”) is entered into effective as of                   , 2005 (the “Effective Date”) by and between INFORMATICA CORPORATION, a Delaware corporation (“Sublandlord”), and NIKU CORPORATION, a Delaware corporation (“Subtenant”). Capitalized terms used herein that are not specifically defined herein or in the Basic Sublease Information shall have the respective meanings accorded to them in the Master Lease.

 

RECITALS

 

A. Sublandlord, as Lessee, is leasing from Pacific Shores Center, LLC (“Master Landlord”), those certain premises located at 2000 Seaport Boulevard, Redwood City, California 94063 (the “Premises”) pursuant to that certain Triple Net Building Lease dated effective February 22, 2000 (the “Master Lease”). Subtenant acknowledges having reviewed the Master Lease, a copy of which is attached as Exhibit A hereto.

 

B. Sublandlord desires to lease to Subtenant and Subtenant desires to lease from Sublandlord a portion of the Premises on the terms and conditions set forth in this Sublease.

 

AGREEMENT

 

NOW, THEREFORE, the parties hereto agree as follows:

 

1. SUBLEASE PREMISES

 

(a) Sublandlord hereby leases to Subtenant and Subtenant hires from Sublandlord that certain portion of the Premises, together with the appurtenances thereto, commonly known and described as 2000 Seaport Boulevard, Suites 100 and 300, Redwood City, California, being the entire third floor and a portion of the first floor of the building commonly known as 2000 Seaport Boulevard, Redwood City, California 94063 (the “Building”) and consisting of approximately 51,063 rentable square feet in the Building shown on the plan attached as Exhibit B hereto, plus that certain warehouse and UPS areas indicated with cross-hatch marks on the plan attached as Exhibit B-1 hereto (collectively, the “Sublease Premises”). Notwithstanding any other provision of this Sublease to the contrary, Sublessee’s rights to that portion of the warehouse (other than the cage therein built for Sublessee) and the UPS area is non-exclusive and subject to the usage of such areas by other tenants of the Premises.

 

(b) Subject to the provisions of Section 3(e) below, Sublandlord shall deliver possession of the Sublease Premises to Subtenant in the required condition on June 15, 2005. In the event that Sublandlord is unable to deliver possession of the Sublease Premises to Subtenant in the required condition by June 15, 2005 (and such delay is not attributable to any act or omission of Subtenant), then Sublandlord shall not be liable for any damage caused thereby, nor shall this Sublease be void or voidable, nor shall the term hereof be extended beyond the Sublease Expiration Date specified in the Basic Sublease Information, but the Base Rent Commencement Date for the Sublease Premises shall be delayed one day for each day after June 15, 2005 until Sublandlord has delivered the Sublease Premises to Subtenant in the required condition. In the event that the term of this Sublease commences after the Sublease Commencement Date specified in the Basic Sublease Information, the expiration date of this Sublease shall continue to be the Sublease Expiration Date specified in the Basic Sublease Information, the term of the Sublease shall be adjusted accordingly, and the Monthly Base Rent Schedule shall be adjusted accordingly so that Subtenant enjoys all of the rent concessions contained therein. In the event that Sublandlord does not deliver possession of the Sublease Premises by August 15, 2005 (and such delay is not attributable to any act or omission of Subtenant), Subtenant may terminate this Sublease and the Security Deposit and any prepaid Rent shall be returned to Subtenant.

 

1


(c) Subtenant is taking possession of the Sublease Premises in its “AS-IS” condition except for the following items (which items are to be performed by Sublandlord as set forth in this Section 1(c)): (i) carpets cleaned, (ii) walls patched and paint touched up; and (iii) professional cleaning. Sublandlord makes no representations or warranties with respect to the Sublease Premises except as otherwise expressly set forth in this Sublease, and Sublandlord shall have no obligation hereunder to make, install, remodel or alter any tenant improvement for the benefit of Subtenant or otherwise make or perform any repairs, renewals or replacements to the Sublease Premises as an inducement to Subtenant to enter into this Sublease or as a condition precedent to the effectiveness of this Sublease. Notwithstanding the above, Sublandlord represents to Subtenant that, to the best of Sublandlord’s knowledge as of the Effective Date: (i) the Sublease Premises are in good working order, condition and repair; and (ii) there are no material defects in the Sublease Premises or the Building that would unreasonably interfere with Subtenant’s use of the Sublease Premises for Subtenant’s ordinary business purposes to the extent such purposes are consistent with the Permitted Use of the Sublease Premises.

 

(d) Subtenant acknowledges that the square footage of the Sublease Premises as specified in Section 1(a) is an estimate and that Sublandlord does not warrant the exact square footage of the Sublease Premises. Subtenant and Sublandlord accept the square footage of the Sublease Premises as that specified in Section 1(a) above, and for purposes of this Sublease neither party shall have the right to modify the square footage of the Sublease Premises during the Sublease Term.

 

(e) Subtenant shall have the right:

 

(i) subject to compliance with Sublandlord’s reasonable security procedures, to the non-exclusive use of the Building lobby, hallways to the Sublease Premises and restrooms;

 

(ii) subject to compliance with Master Landlord’s rules and regulations, to the non-exclusive use of the Common Areas as provided for in Section 2.02 of the Master Lease;

 

(iii) commencing on the Sublease Commencement Date, to the use of three (3) parking spaces per 1,000 rentable square feet of the Sublease Premises free of charge throughout the Sublease Term and any extensions thereof;

 

(iv) subject to any limitations set forth in the Master Lease, to access to the Sublease Premises 24 hours per day, 7 days per week, 52 weeks per year; and

 

(v) at Subtenant’s sole expense and on a non-exclusive basis, to maintain a full-time or part-time receptionist presence in the main entry lobby of the Building, provided that Subtenant shall direct such receptionist (if any) to assist in directing visitors of, and occasional deliveries to, other Building tenants.

 

(f) Subtenant’s use of and access to the warehouse area and UPS area indicated with cross-hatch marks on Exhibit B-1 on the first floor of the Building shall be shared with the other subtenants (if any) in the Building. In the event that Sublandlord subleases space in the Building to one or more additional subtenants desiring use of and access to the warehouse area and UPS area, Sublandlord shall install, at Sublandlord’s expense, locking storage areas in the warehouse area for the use of Subtenant and the other subtenant(s). Such locking storage areas shall consist of cages configured with chainlink fencing up to eight feet high and with no top on the cage. In such case, Subtenant’s locked storage area within the warehouse shall be approximately 310 square feet, as shown on Exhibit B-1 . Subtenant shall not be charged any additional Monthly Base Rent for its access to and use of the

 

2


warehouse area and the UPS area, and Subtenant shall have the right, subject to this Section 1(f), to use its Percentage Share of the UPS power. Subject to an agreement with Openwave Systems, Inc., the only existing subtenant in the Building as of Effective Date (“Openwave”), as to a pro rata allocation of the UPS power resources, if Subtenant determines that another subtenant is using more than its pro rata share of the UPS power and this use impinges on Subtenant’s use of UPS power, then Subtenant shall notify Sublandlord of this fact and Sublandlord will use commercially reasonable efforts to cause the over-user to cut its use to only its pro rata share, provided that such overuse and proper UPS power use allocation can be reasonably determined. Sublandlord’s obligation to cause Openwave to limit its use of UPS power shall be conditioned upon, and limited by the terms of, an agreement to be worked out by Subtenant with Openwave regarding a pro rata sharing of the UPS power.

 

2. INCORPORATION OF MASTER LEASE

 

(a) This Sublease is subject to all of the terms and conditions of the Master Lease and, except as set forth in Section 11 below, the rights and obligations of Lessor and Lessee under those provisions of the Master Lease incorporated into this Sublease shall be deemed to be the rights and obligations of Sublandlord and Subtenant, respectively, as they relate to the Sublease Premises and the Building. All of the terms and conditions of the Master Lease are incorporated herein as terms and conditions of this Sublease (with each reference therein to Lessor, Lessee and Premises to be deemed to refer to Sublandlord, Subtenant and Sublease Premises, respectively), excepting only the following provisions of the Master Lease and as set forth in Section 11 below:

 

Sections:    1.01, 2.01, 2.04, 3.01, 3.02, 4.01, 4.02, 4.03, 4.06, 5.03, 5.04, 7.03, 17.08, 17.14, 17.24

 

Exhibits:    B, C, D, E, F, G

 

(b) In the event that either Subtenant or Sublandlord shall receive any notice from the Master Landlord regarding a default pursuant to any of the provisions of the Master Lease, the party receiving such notice shall promptly give a copy thereof to the other party.

 

(c) Sublandlord represents and warrants for the benefit of Subtenant that: (i) the copy of the Master Lease attached hereto is a true, correct and complete copy thereof; (ii) there exist no amendments, modifications or other agreements (whether oral or written) affecting the Master Lease except as attached hereto; (iii) to Sublandlord’s current knowledge, neither Sublandlord nor Master Landlord is in default under the provisions of the Master Lease, nor is there any event, condition or circumstance existing which, with notice or the passage of time (or both), would constitute a default or event of default thereunder; (iv) the Master Lease is in full force and effect and is a valid and binding obligation of Sublandlord and Master Landlord; and (v) to Sublandlord’s current knowledge, there are no pending or threatened actions, suits or proceedings before any court or administrative agency against Sublandlord, Master Landlord or the Premises which could, in the aggregate, adversely affect the Sublease Premises (or any part thereof) or the ability of Sublandlord to perform its obligations under this Sublease or the Master Lease, and Sublandlord is not aware of any facts which might result in any such actions, suits or proceedings.

 

(d) So long as Subtenant complies, within all applicable notice and cure periods, with its obligations under this Sublease (including the payment of all Rent when due), Sublandlord shall preserve the Master Lease and keep the Master Lease in full force and effect throughout the Sublease Term (unless the failure to keep the Master Lease in full force and effect is caused in whole or in part by Subtenant’s, or its agents’, employees’ or contractors’ acts or omissions), subject to Sublandlord’s right to terminate the Master Lease in connection with casualty or condemnation. Notwithstanding anything to the contrary contained in this Sublease or the Master Lease, Sublandlord shall not surrender the Sublease

 

3


Premises, amend the terms of the Master Lease in such a manner as to materially adversely affect Subtenant’s use of the Sublease Premises or increase the obligations or decrease the rights of Subtenant hereunder, or voluntarily terminate the Master Lease during the Sublease Term (except in connection with casualty or condemnation as permitted under the Master Lease), unless and until Master Landlord has agreed in writing to continue this Sublease in full force and effect as a direct lease between Master Landlord and Subtenant upon and subject to all of the terms, covenants and conditions of this Sublease for the balance of the Sublease Term, including any extensions thereto. If Master Landlord so consents, Subtenant shall attorn to Master Landlord in connection with any such surrender or voluntary termination and shall execute an attornment agreement in such form as may be reasonably satisfactory to Master Landlord and Subtenant.

 

3. TERM AND TERMINATION

 

(a) The term of this Sublease (the “Sublease Term”) shall commence on the Sublease Commencement Date specified in the Basic Sublease Information and end on the Sublease Expiration Date specified in the Basic Sublease Information, unless extended pursuant to the provisions of Section 4 hereof or earlier terminated pursuant to the provisions of this Sublease.

 

(b) In the event of the termination for any reason of Sublandlord’s interest as Lessee under the Master Lease, then this Sublease shall terminate therewith without any liability of Sublandlord to Subtenant; provided, however, that Sublandlord shall be liable to Subtenant for any termination of the Sublease that results from Sublandlord’s material breach of the Master Lease, to the extent that such material breach is not caused in whole or in part by Subtenant or its agents, contractors, employees or invitees or any third party not affiliated with Sublandlord. To the extent that the Master Lease grants Sublandlord any discretionary right to terminate the Master Lease in connection with a casualty or condemnation, then Sublandlord shall be entitled to exercise or not exercise such right in its sole and absolute discretion, without the prior written consent of Subtenant. Sublandlord shall give Subtenant notice of any exercise by Sublandlord of such discretionary right to terminate the Master Lease concurrently with Sublandlord’s notice to Master Landlord.

 

(c) Provided that Subtenant has delivered its certificates of insurance to Sublandlord as required under this Sublease, then on or after June 7, 2005 Sublandlord shall deliver the Sublease Premises to Subtenant in the condition required by Section 1(c) above and Subtenant shall have the right to enter and occupy the Sublease Premises from and after such date (the “Early Occupancy Period,” which shall end on the Sublease Commencement Date); provided, that (i) Sublandlord and Subtenant have executed and delivered this Sublease and (ii) Master Landlord has executed and delivered its unconditional written consent to this Sublease. Subtenant’s early entry and occupancy during the Early Occupancy Period shall be subject to and in accordance with all of the terms and conditions of this Sublease other than that Subtenant shall have no obligation to pay Rent other than Utilities and janitorial expenses during the Early Occupancy Period.

 

4. OPTION TO RENEW

 

(a) If Subtenant is not in Default hereunder and has not at any time been in Default hereunder beyond the applicable cure period, Subtenant shall have the option to renew this Sublease (the “Renewal Option”), upon written notice thereof not less than six (6) months prior to the Sublease Expiration Date, either: (i) for a renewal term of one (1) year, commencing at the Sublease Expiration Date; or (ii) for a renewal term equal to the term remaining under the Master Lease. This Renewal Option may not be exercised by any assignee or subtenant of Subtenant, except for any assignee or subtenant permitted under Section 8(b) of this Sublease. If Subtenant timely exercises its Renewal Option provided in this Section 4(a), then this Sublease shall continue in full force and effect as written except that there shall be no further Renewal Options and the Monthly Base Rent shall be adjusted as provided in this Section 4.

 

4


(b) If Subtenant exercises its Renewal Option under Section 4(a)(i) above, the Monthly Base Rent for the renewal term shall be equal to $1.00 per square foot per month.

 

(c) If Subtenant exercises its Renewal Option under Section 4(a)(ii) above, the Monthly Base Rent for the renewal term shall be an amount equal to the fair market rental rate(s) for a five (5) year term for comparable space in the Greater San Francisco/Mid-Peninsula area (collectively “Fair Market Rent”), but in no event less than $1.00 per square foot per month. Sublandlord shall advise Subtenant in writing of Sublandlord’s calculation of Fair Market Rent no later than thirty (30) days after Subtenant has exercised its Renewal Option. If Subtenant disagrees with such calculation, it shall advise Sublandlord in writing thereof within thirty (30) days thereafter. If there is a disagreement on such calculation, the parties shall promptly meet to attempt to resolve their differences. If these differences as to Fair Market Rent are not resolved within a one (1) month period, then the parties shall submit the matter to arbitration in accordance with the terms of this Section 4 so that Fair Market Rent is determined no later than one (1) month prior to the Sublease Expiration Date.

 

(d) If the parties are unable to reach agreement on Fair Market Rent during the period specified in Section 4(c), then within ten (10) days thereafter either party may advise the other in writing of the name and address of its arbitrator. Each arbitrator shall be an appraiser or commercial real estate broker with at least ten (10) years of experience with commercial rental rates in the greater San Francisco/Mid-Peninsula area. Within ten (10) days after receipt of such notice from the initiating party (the “Initiator”) designating its arbitrator, the other party (the “Recipient”) shall give notice to the Initiator, specifying the name and address of the person designated by the Recipient to act as arbitrator on its behalf who shall be similarly qualified. If the Recipient fails to notify the Initiator of the appointment of its arbitrator within the time specified above, then the arbitrator appointed by the Initiator shall be the arbitrator to determine Fair Market Rent. The duty of the arbitrator(s) shall be to determine the Fair Market Rent. The arbitrators so chosen shall meet within ten (10) days after the second arbitrator is appointed, and any decision as to Fair Market Rent in which the two arbitrators concur shall be binding and conclusive upon the parties. If within ten (10) days after such first meeting the two arbitrators shall be unable to agree promptly upon a determination of Fair Market Rent, they shall within ten (10) days thereafter appoint a third arbitrator, who shall be a competent and impartial person with qualifications similar to those required of the first two arbitrators. Concurrently with their selection of the third arbitrator, the two arbitrators selected by the parties shall each furnish the third arbitrator with his or her determination of the Fair Market Rent in writing, supported by the reasons therefor, with counterpart copies to each party. The arbitrators shall arrange for a simultaneous exchange of such proposed resolutions. The role of the third arbitrator shall be to select one of the two proposed resolutions that most closely approximates the third arbitrator’s determination of Fair Market Rent. The third arbitrator shall make such selection within ten (10) days of receipt of the two proposed resolutions, and shall have no right to propose a middle ground or any modification of either of the two proposed resolutions. The resolution that the third arbitrator chooses as most closely approximating his or her determination of Fair Market Rent shall constitute the decision of the arbitrators and be final and binding upon the parties. Each party shall pay the fees and expenses of its respective arbitrator and both shall share equally the fees and expenses of the third arbitrator (if any), and the attorneys’ fees and expenses of counsel for the respective parties and of witnesses shall be paid by the respective party engaging such counsel or calling such witnesses.

 

5. RENT

 

(a) Subtenant shall pay Monthly Base Rent in the amounts specified in the Basic Sublease Information to Sublandlord for each month of the Sublease Term, without offset or deduction

 

5


for the Sublease Premises, in advance, on the first day of each month of the Sublease Term, in lawful money of the United States. Monthly Base Rent shall commence and be adjusted on the Rent Commencement Dates specified in the Basic Sublease Information. Rent for any partial month shall be prorated on the basis of the number of days in such month. All Monthly Base Rent and all other charges payable by Subtenant under this Sublease shall be referred to herein as “Rent.” Notwithstanding the foregoing, (i) for the two-month period commencing June 15, 2005 and ending August 14, 2005, the Subtenant shall be obligated to pay only the Utilities and janitorial costs associated with the Sublease Premises and (ii) for the two-month period commencing August 15, 2005 and ending October 14, 2005, the Subtenant shall be obligated to pay only the Utilities, janitorial costs, the Estimated Operating Expenses and the Building Maintenance Expenses associated with the Sublease Premises.

 

(b) In addition to Monthly Base Rent, and commencing on the date identified for that purpose in the Basic Sublease Information, on the first day of each month of the Sublease Term Subtenant shall pay as additional Rent Subtenant’s Share of the Master Premises Operating Expenses (as provided in the Basic Sublease Information). As used in this Sublease, the term “Master Premises Operating Expenses” means all actual out-of-pocket costs payable by Sublandlord to Master Landlord under Sections 4.05, 7.01, 9.01 and 9.02 of the Master Lease and the fitness center fees charged by Master Landlord for the Building (except for the insurance deductibles as set forth in Section 7.01 of the Master Lease, which will be part of the Master Premises Operating Expenses passed through to Subtenant only to the extent that, if Sublandlord is charged by Master Landlord for any insurance deductible as part of a casualty to the Building, then Sublandlord will treat that deductible expense as a capital expenditure to be amortized and charged to Subtenant at its Percentage Share of the charge based on the amortization schedule set forth in Section 6.05 of the Master Lease, with the useful life being the useful life of the repairs covered by the deductible).

 

(i) During each calendar year or partial calendar year of the Sublease Term, in addition to Monthly Base Rent Subtenant will pay to Sublandlord on the first day of each month an amount equal to the product of Subtenant’s Share of Master Premises Operating Expenses multiplied by the “Estimated Operating Expenses” for the Master Premises for such calendar year. “Estimated Operating Expenses” for any calendar year shall mean Sublandlord’s reasonable estimate of the Master Premises Operating Expenses for the ensuing calendar year, which estimate shall be based on the Master Landlord’s Statement received by Sublandlord from Master Landlord pursuant to Section 4.05 of the Master Lease. Sublandlord and Subtenant agree that the initial Estimated Operating Expenses for calendar year 2005 shall be $0.74 per rentable square foot of the Sublease Premises per month. During any partial calendar year during the Sublease Term, Estimated Operating Expenses will be estimated on a full-year basis. During the last month of each year during the Sublease Term, or as soon thereafter as practicable, Sublandlord will give Subtenant written notice of the Estimated Operating Expenses for the ensuing calendar year. On or before the first day of each month during the ensuing calendar year, Subtenant will pay to Sublandlord the product of Subtenant’s Share of Master Premises Operating Expenses multiplied by the Estimated Operating Expenses for such calendar year; provided, however, that if such written notice is not given in the last month of the calendar year, Subtenant will continue to make monthly payments in the ensuing calendar year on the basis of the prior year’s Estimated Operating Expenses until the month after such written notice is given, at which time Subtenant will commence making monthly payments based upon the revised Estimated Operating Expenses and, in the month Subtenant first makes a payment based upon the revised Estimated Operating Expenses, Subtenant will also pay to Sublandlord the difference between the amount payable based upon the revised Estimated Operating Expenses and the amount payable based upon the prior year’s Estimated Operating Expenses for each month which has elapsed since the last month of the prior calendar year or, if Subtenant’s payments of the prior year’s Estimated Operating Expenses exceeded the revised or actual Estimated Operating Expenses for the year in question, Sublandlord shall credit the excess to Estimated Operating Expenses next coming due until credited in full. If at any time or times it reasonably appears to Sublandl


 
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