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