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EXHIBIT 10.05
CORNISH & XXXXX COMMERCIAL
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SUBLEASE AGREEMENT
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1. PARTIES:
This Sublease is made and entered into as of June 1, 1998, by and
between SaRonix, a California Corporation ("Sublandlord"), and Broadbase
Information Systems, Inc., a California Corporation ("Subtenant"), under
the Master Lease dated November 18, 1997, between WHSUM Real Estate
Limited Partnership, a Delaware Limited Partnership, as "Lessor" and
Sublandlord under this Sublease as "Lessee." A copy of the Master Lease
is attached hereto as Attachment I and incorporated herein by this
reference.
2. PROVISIONS CONSTITUTING SUBLEASE:
2.1 This Sublease is subject to all of the terms and conditions of
the Master Lease. Subtenant hereby assumes and agrees to perform
all of the obligations of "Lessee" under the Master Lease to the
extent said obligations apply to the Subleased Premises and
Subtenant's use of the Common Areas, except as specifically set
forth herein. Sublandlord hereby agrees to cause Lessor under the
Master Lease to perform all of the obligations of Lessor
thereunder to the extent said obligations apply to the Subleased
Premises and Subtenant's use of the Common Areas. Subtenant shall
not commit or permit to be committed on the Subleased Premises or
on any other portion of the Project any act or omission which
violates any term or condition of the Master Lease. Except to the
extent waived or consented to in writing by the other party or
parties hereto who are affected thereby, neither of the parties
hereto will, by renegotiation of the Master Lease, assignment,
subletting, default or any other voluntary action, avoid or seek
to avoid the observance or performance of the terms to be
observed or performed hereunder by such party, but will at all
times in good faith assist in carrying out all the terms of this
Sublease and in taking all such action as may be necessary or
appropriate to protect the rights of the other party or parties
hereto who are affected thereby against impairment. Nothing
contained in this Section 2.1 or elsewhere in this Sublease shall
prevent or prohibit Sublandlord (a) from exercising its right to
terminate the Master Lease pursuant to the terms thereof or (b)
from assigning its interest in this Sublease or subletting the
Premises to any other third party. If Sublandlord exercises its
right, if any, to terminate the Master Lease, the Sublandlord
shall reimburse Subtenant for the remaining portion of
unamortized (on straight line basis) Tenant Improvement costs as
outlined on Addendum #1 Paragraph 2. The full unamortized Tenant
Improvement costs are to be paid by Sublandlord when Subtenant is
required to vacate the Subleased Premises.
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2.2 All of the terms and conditions contained in the Master Lease are
incorporated herein, except as specifically provided below, and
the terms and conditions specifically set forth in this Sublease,
shall constitute the complete terms and conditions of this
Sublease, except that the following paragraphs shall be
superseded by this Sublease Agreement:
Section 1, 2.1, 2.2, 3, 4, 5, 15.1, 15.2, 24, 31.10 with
modification, 38, Exhibit B, Exhibit F and Addendum 1.
2.3 Notwithstanding anything to the contrary contained in the Master
Lease, the Consent to Subletting or in this Sublease (by
incorporation of provisions of the Master Lease such as Section
29.5 of the Master Lease or otherwise), no officer and no
director of Sublessee has agreed or does agree to defend,
indemnify or hold harmless Sublandlord, Landlord or anyone else
with respect to any claims, judgments, damages, penalties, fines,
liabilities, losses, suits, administrative proceedings, costs, or
other matters arising at any time in connection with or related
to, directly or indirectly, the use, presence, transportation,
storage, disposal, migration, removal, spill, release or
discharge of "Hazardous Materials" (as defined in the Master
Lease) on, in or about the "Premises," the "Common Areas," the
"Building," the "Lot," and/or the "Park" (as such terms are
defined in the Master Lease). Accordingly, without limitation,
the references to "Tenant's officers and directors" in Section
29.5 of the Prime Lease are not incorporated into the Sublease.
This is acceptable as long as Subtenant's use does not change
with regard to Hazardous Materials.
3. SUBLEASED PREMISES AND RENT:
3.1 Subleased Premises:
Sublandlord leases to Subtenant and Subtenant leases from
Sublandlord the Subleased Premises upon all of the terms,
covenants and conditions contained in this Sublease. The
Subleased Premises consist of approximately 20,941+/- square
feet, located at 000 Xxxxxxxxx Xxxxx, Xxxxx Xxxx, XX. (Fronting
Constitution Drive.) The Sublease shall be that portion of
Exhibit A to the Master Lease as designated in Exhibit A to this
Sublease Agreement.
3.2 Rent
Subtenant shall pay to Sublandlord as Base NNN Rent for the
Subleased Premises the sum of Forty Thousand Two Hundred Six and
72/100 Dollars ($40,206.72) per month, without deductions,
offset, prior notice or demand. One month's Base Rent shall be
paid upon the Commencement Date. Rent shall be payable by
Subtenant to Sublandlord in consecutive monthly installments on
or before the first day of each calendar month during the
Sublease Term. If the Sublease
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Commencement Date or the termination date of the Sublease occurs
on a date other than the first day or the last day, respectively,
of a calendar month, then the Rent for such partial month shall
be prorated and the prorated Rent shall be payable on the
Sublease Commencement Date or on the first day of the calendar
month in which the Sublease termination date occurs,
respectively. Additionally, Subtenant shall pay all operating
expenses on a prorated basis per the Master Lease. Utilities
shall be paid monthly by Subtenant on a prorated basis using a
formula of $0.173/square foot ($3,619.00 per month - See attached
algorithm). The Base Rent shall be adjusted per the following
schedule.
Month Monthly Base Rent
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01-12 $40,207.00
13-24 $41,714.75
25-36 $43,282.81
37-45 $44,913.59
3.3 Security Deposit:
In addition to the Rent specified above, Subtenant shall pay to
Sublandlord One Hundred Sixty Five Thousand Five Hundred Thirty
Four and 59/100 Dollars ($165,534.59) as a non-interest bearing
Security Deposit upon the execution of the Sublease Agreement.
Said Security Deposit shall be split into two categories (i)
$120,621.00 which shall be credited against rent accruing with
respect to periods prior to November 1, 1998 in the event the
Commencement Date occurs before November 1, 1998 and (ii)
$44,913.59 which will be held throughout the Sublease Term.
Sublandlord shall return to Subtenant, within ten days after
Subtenant has vacated the Subleased Premises, the Security
Deposit (category ii) less any sums due and owing to Sublandlord.
The balance of the category (i) security deposit which was not
credited against rent accruing prior to November 1, 1998 shall be
applicable to the monthly base rent beginning in the first month
of the lease term occurring after October 1998 and every month
thereafter at a monthly rate equal to the balance divided by the
number of months in the Sublease Term.
4. RIGHTS OF ACCESS AND USE:
4.1 Use:
Subtenant shall use the Subleased Premises only for those
purposes permitted in the Master Lease, unless Sublandlord and
Master Landlord consent in writing to other uses prior to the
commencement thereof.
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5. SUBLEASE TERM:
5.1 Sublease Term:
The Sublease Term shall be for the period commencing on the later
of (i) the date Sublandlord offers possession of the entire
Subleased Premises to Subtenant, or (ii) November 1, 1998 (the
"Commencement Date") subject to the provisions of Addendum
Paragraph 1, and continuing through July 31, 2002. In no event
shall the Sublease Term extend beyond the Term of the Master
Lease.
5.2 Inability to Deliver Possession:
In the event Sublandlord is unable to deliver possession of the
entire Subleased Premises at the commencement of the term,
Sublandlord shall not be liable for any damage caused thereby,
nor shall this Sublease be void or voidable but Subtenant shall
not be liable for Rent until such time as Sublandlord offers to
deliver possession of the entire Subleased Premises to Subtenant,
but the term hereof shall not be extended by such delay. If
Subtenant, with Sublandlord's consent, takes possession of the
entire Subleased Premises prior to commencement of the term,
Subtenant shall do so subject to all the covenants and conditions
hereof and shall pay Rent for the period from the beginning of
possession and ending with the commencement of the term at the
same rental as that prescribed for the first month of the term
prorated at the rate of 1/30th thereof per day. In the event
Sublandlord has been unable to deliver possession of the entire
Subleased Premises within 120 days from the Commencement Date,
Subtenant, at Subtenant's option, may terminate this Sublease. In
the event that Subtenant accepts possession of a portion of the
Sublease Premises prior to the Commencement Date, no base rent
shall be charged and its right to quiet enjoyment of the Premises
shall be subject to the reasonable needs of the contractor in
completing the Tenant Improvements under the Master Lease, and
this Sublease; (Subtenant shall pay its prorata share of expenses
in the event of occupancy prior to November 1, 1998).
6. NOTICES:
All notices, demands, consents and approvals which may or are required
to be given by either party to the other hereunder shall be given in the
manner provided in the Master Lease, at the addresses shown on the
signature page hereof. Sublandlord shall notify Subtenant of any Event
of Default under the Master Lease, or of any other event of which
Sublandlord has actual knowledge which will impair Subtenant's ability
to conduct its normal business at the Subleased Premises, as soon as
reasonably practicable following Sublandlord's receipt of notice from
the Landlord of an Event of Default or actual knowledge of such
impairment. If Sublandlord elects to terminate the Master Lease,
Sublandlord shall so notify Subtenant by giving at least 30 days notice
prior to the effective date of such termination.
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7. BROKER FEE.
Upon execution of the Sublease, Sublandlord shall pay Cornish & Xxxxx
Commercial, a licensed real estate broker, fees set forth in a separate
agreement between Sublandlord and Broker.
8. COMPLIANCE WITH AMERICANS WITH DISABILITIES ACT
Subtenant shall be responsible for the installation and cost of any and
all improvements, alterations or other work required on or to the
Subleased Premises or to any other portion of the property and/or
building of which the Subleased Premises are a part, required or
reasonably necessary because of: (1) Subtenant's use of the Subleased
Premises or any portion thereof; (2) the use by a subtenant by reason of
assignment or sublease; or (3) both, including any improvements,
alterations or other work required under the Americans With Disabilities
Act of 1990. Compliance with the provisions of this Section 8 shall be a
condition of Sublandlord granting its consent to any assignment or
Sublease of all or a portion of this Sublease and the Subleased Premises
described in this Sublease.
9. COMPLIANCE WITH NONDISCRIMINATION REGULATIONS:
It is understood that it is illegal for Sublandlord to refuse to display
or sublease the Subleased Premises, or to assign, surrender or sell the
Master Lease, to any person because of race, color, religion, national
origin, sex, sexual orientation, marital status or disability.
10. TOXIC CONTAMINATION DISCLOSURE:
Sublandlord and Subtenant each acknowledge that they have been advised
that numerous federal, state, and/or local laws, ordinances and
regulations ("Laws") affect the existence and removal, storage,
disposal, leakage of and contamination by materials designated as
hazardous or toxic ("Toxics"). Many materials, some utilized in everyday
business activities and property maintenance, are designated as
hazardous or toxic.
Some of the Laws require that Toxics be removed or cleaned up by
landowners, future landowners or former landowners without regard to
whether the party required to pay for "clean up" caused the
contamination, owned the property at the time the contamination occurred
or even knew about the contamination. Some items, such as asbestos or
PCBs, which were legal when installed, now are classified as Toxics, and
are subject to removal requirements. Civil lawsuits for damages
resulting from Toxics may be filed by third parties in certain
circumstances.
Sublandlord and Subtenant each acknowledge that Broker has no specific
expertise with respect to environmental assessment or physical condition
of the Subleased Premises, including, but not limited to, matters
relating to: (i) problems which may be posed by the presence or disposal
of hazardous or toxic substances on or from the Subleased Premises, (ii)
problems which may be posed by the Subleased Premises being within the
Special
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Studies Zone as designated under the Xxxxxxx-Xxxxxx Special Studies Zone
Act (Earthquake Zones), Section 2621-2630, inclusive of California
Public Resources Code, and (iii) problems which may be posed by the
Subleased Premises being within a HUD Flood Zone as set forth in the
U.S. Department of Housing and Urban Development "Special Flood Zone
Area Maps," as applicable.
Sublandlord and Subtenant each acknowledge that Broker has not made an
independent investigation or determination of the physical or
environmental condition of the Subleased Premises, including, but not
limited to, the existence or nonexistence of any underground tanks,
sumps, piping, toxic or hazardous substances on the Subleased Premises.
Subtenant agrees that it will rely solely upon its own investigation
and/or the investigation of professionals retained by it or Sublandlord,
and neither Sublandlord nor Subtenant shall rely upon Broker to
determine the physical and environmental condition of the Subleased
Premises or to determine whether, to what extent or in what manner, such
condition must be disclosed to potential sublessees, assignees,
purchasers or other interested parties.
11. RENT ABATEMENT AND DAMAGES TO PERSONAL PROPERTY:
In the event Sublandlord, pursuant to the terms of the Master Lease, is
entitled to and receives rent abatement, then to the extent such rent
abatement affects the Subleased Premises, Subtenant shall be entitled to
rent abatement in an amount that the net rentable area of the subleased
premises bears to the total net rentable area of the Master Lease, and
only to the extent any such abatement applies to the sublease term. In
addition, any amounts paid or credited to Sublandlord under the terms of
the Master Lease for damage to personal property shall be credited to
Subtenant, subject to the same limitations set forth above.
SUBLANDLORD: SARONIX, A CALIFORNIA CORPORATION
By: /s/ Xxxxx Xxxxxxxx Date:
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Xxxxx Xxxxxxxx, Vice President
000 Xxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
SUBTENANT: BROADBASE INFORMATION SYSTEMS, INC., A CALIFORNIA
CORPORATION
By: /s/ Xxxxx Bay Date:
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Xxxxx Bay, Chief Financial Officer
000 Xxxxxxxxx Xxxxx
Xxxxx Xxxx, XX 00000
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NOTICE TO SUBLANDLORD AND SUBTENANT: CORNISH & XXXXX COMMERCIAL, IS NOT
AUTHORIZED TO GIVE LEGAL OR TAX ADVICE; NOTHING CONTAINED IN THIS SUBLEASE OR
ANY DISCUSSIONS BETWEEN CORNISH & XXXXX AND SUBLANDLORD AND SUBTENANT SHALL BE
DEEMED TO BE A REPRESENTATION OR RECOMMENDATION BY CORNISH & XXXXX COMMERCIAL,
OR ITS AGENTS OR EMPLOYEES AS TO THE LEGAL EFFECT OR TAX CONSEQUENCES OF THIS
DOCUMENT OR ANY TRANSACTION RELATING THERETO. ALL PARTIES ARE ENCOURAGED TO
CONSULT WITH THEIR INDEPENDENT FINANCIAL CONSULTANTS AND/OR ATTORNEYS REGARDING
THE TRANSACTION CONTEMPLATED BY THIS PROPOSAL.
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CORNISH & XXXXX COMMERCIAL
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SUBLEASE AGREEMENT ADDENDUM #1
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ADDENDUM #1 TO THE SUBLEASE AGREEMENT DATED JUNE 1, 1998, BY AND BETWEEN
SARONIX, A CALIFORNIA CORPORATION, SUBLANDLORD, AND BROADBASE INFORMATION
SYSTEMS, INC., A CALIFORNIA CORPORATION, SUBTENANT, FOR THOSE PREMISES LOCATED
AT 000 XXXXXXXXX XXXXX, XXXXX XXXX, XXXXXXXXXX.
1. EARLY POSSESSION: Sublandlord shall use its best efforts to complete the
Tenant Improvements and to have the entire Subleased Premises ready for
occupancy by Subtenant by August 1, 1998. Sublandlord shall notify
Subtenant as soon as the Subleased Premises are so ready. Subtenant, in
its sole discretion, may then take possession of the entire Subleased
Premises at any time prior to November 1, 1998. Subtenant shall be
allowed access at least one (1) week prior to the commencement date, and
after the substantial completion of the tenant improvements, to set up
its operation in the Sublease Premises subject to the construction
process and scheduling. Subtenant shall indemnify Sublandlord against
any issues arising from the early occupancy.
2. TENANT IMPROVEMENTS: Sublandlord shall cause to be constructed the
following tenant improvements per Exhibit C which includes the items
listed below:
Alternate #1 - Duct work, plugs, carpet, lighting at open area
Alternate #3 - Change roll-up door to storefront glass
Alternate #4 - Office 174 to kitchen
Alternate #5 - Add 4 conference rooms at north wall 182
Alternate #6 - Build 15' wall from the M-O line on 44 line
Alternate #7 - New stair and railing to mezzanine
Alternate #8 - New coffee counter room 178
The cost of the tenant improvements including architectural, permit,
construction management and other associated fees shall be split on the
basis of 60% Sublandlord and 40% Subtenant up to $250,000. Costs above
$250,000 shall be mutually approved by Sublandlord and Subtenant in
writing in advance and such costs shall be shared equally by both
parties.
3. SIGNAGE: Subtenant at Subtenant's cost shall be allowed signage subject
to Sublandlord's and City approval.
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4. CONDITION OF PREMISES: Sublandlord shall deliver the Premises to
Subtenant with the roof, HVAC, electrical, plumbing and lighting in good
working condition, sufficient to support Subtenant's intended use. Said
costs associated with delivery of premises in good working condition
shall not be subtracted from Sublandlord's contribution to the Tenant
Improvements described in Paragraph 2 of Addendum #1.
5. PARKING: Subtenant shall be granted sixty (60) designated parking stalls
(as designated in Exhibit B to this Sublease Agreement).
6. ASSIGNMENT & SUBLEASING: Subtenant shall have the right to assign or sublease
the Subleased Premises, in accordance with the Master Lease, subject to
Sublandlord's approval which shall not be unreasonably withheld. Any bonus rent
shall be split 75/25 in favor of Sublandlord. Further, Sublandlord shall have
the right to recapture the premises in the event of a Sublease after the first
twelve (12) months of the Sublease term. Subtenant may sublease the Premises to
Uroquest at any time during the Sublease term. Subtenant shall pay all costs of
such Sub-Sublease or assignment, including brokerage commissions and tenant
improvements. The brokerage commissions and tenant improvements costs of such
Sub-Sublease or assignment shall be deducted in computing bonus rent and shall
be charged against any portion of the bonus rent to which Sublandlord is
entitled.
SUBLANDLORD: SARONIX, A CALIFORNIA CORPORATION
By: /s/ XXXXX XXXXXXXX Date: 6/12/98
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Xxxxx Xxxxxxxx, Vice President
SUBTENANT: BROADBASE INFORMATION SYSTEMS, INC., A CALIFORNIA
CORPORATION
By: /s/ XXXXX BAY Date: 6/11/98
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Xxxxx Bay, Chief Financial Officer
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SUBTENANT IMPROVEMENT AGREEMENT
THIS SUBTENANT IMPROVEMENT AGREEMENT, dated as of June ____, 1998
("Subtenant Improvement Agreement"), is made and entered into by and between
SARONIX, a California corporation ("Sublessor"), and BROADBASE INFORMATION
SYSTEMS, INC., a California corporation ("Subtenant"), under that certain
sublease dated as of June 1, 1998 between them, affecting that real property
commonly known as 000 Xxxxxxxxx Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx ("Sublease"). In
the event of a conflict between this Subtenant Improvement Agreement and the
Sublease, the Sublease shall govern.
1. DEFINITIONS
Wherever used in this Subtenant Improvement Agreement,
capitalized terms that are not defined herein shall have the meaning given to
them in the Sublease. The following terms shall have the meanings set forth
below:
A. ALLOWANCE is the maximum amount Subtenant is required to pay
toward the Construction Cost of the Initial Improvements, which amount is One
Hundred Thousand Dollars ($100,000.00), plus 50% of overages above $250,000.00.
Said costs above $250,000.00 shall be mutually approved in advance in writing by
Sublandlord and Subtenant.
B. ARCHITECT(S) collectively means SIGMATECH and LINCOLN's
architect, each of whom shall be duly licensed by the State of California and in
good professional standing.
C. COMPLETION of the Initial Improvements is defined in Section
5.B.
D. CONTRACTOR(S) means the General Contractor which is X.X.
Xxxxxx and all other general contractors, design-build contractors,
subcontractors, and material suppliers who provide labor and materials for
construction of the Initial Improvements. To the extent required by Laws and
Restrictions, each Contractor shall be duly licensed by the State of California
insured as required by the Lease and Landlord and in good professional standing.
E. CONSTRUCTION COST means the total for the following: (i)
payments to Contractor(s) for labor, material, equipment, and fixtures supplied
for the construction of the Initial Improvements pursuant to any construction
contract entered into in accordance with this Subtenant Improvement Agreement,
(ii) payments to Architect(s) for design of Initial Improvements, and
proportionately costs of project management fees and (iii) payments to
governmental and quasi-governmental agencies for permits or for inspections of
the Initial Improvements.
F. CONSTRUCTION DOCUMENTS are (1) the Final Plans, (2) the
construction contract(s) with Contractor(s), and (3) the agreement(s) with
Architect(s).
G. DESIGN & CONSTRUCTION SCHEDULE is the schedule for design,
commencement, prosecution and Completion of the Initial Improvements which is
attached to
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this Subtenant Improvement Agreement as Attachment I and incorporated herein by
this reference.
H. FINAL PLANS are those working drawings, plans, and
specifications, and elevations prepared by the Architects and Subcontractors and
approved by the parties and Landlord pursuant to this Subtenant Improvement
Agreement which are identified in Attachment 2 which is attached to this
Subtenant Improvement Agreement as Attachment 2 and incorporated herein by this
reference.
I. FORCE MAJEURE DELAY is a delay caused by a force majeure event
beyond the reasonable control of the party required to perform, including,
without limitation, general strikes, inclement weather, utility curtailments,
and acts of God.
J. INITIAL IMPROVEMENTS are all of those alterations,
modifications, and improvements described on the Final Plans.
K. SUBLESSOR'S REPRESENTATIVE is Xxxxx Xxxxxxxx, or such other
person as the Sublessor shall designate in writing to Subtenant as its
authorized representative to administer this Subtenant Improvement Agreement.
L. LAWS AND RESTRICTIONS means all laws (including without
limitation the Americans with Disabilities Act and environmental laws), building
codes, ordinances, regulations, title covenants, conditions, and restrictions,
and casualty underwriters' requirements applicable to the Subleased Premises and
the construction of improvements therein.
M. PERMITS are all of the permits, approvals and consents of
governmental authorities and third parties having jurisdiction over the work
that are required for commencement and Completion of the Initial Improvements.
N. SCHEDULED COMPLETION DATE is the scheduled date for Completion
of the Initial Improvements specified in the Construction Schedule, except to
the extent that such date is modified pursuant to Section 3.
O. SUBTENANT'S REPRESENTATIVE is Xxxxx Bay, or such other person
as the Subtenant shall designate in writing to Sublessor as its authorized
representative to administer this Subtenant Improvement Agreement.
2. DESIGNATION OF REPRESENTATIVES
Sublessor and Subtenant hereby respectively appoint the
Sublessor's Representative and the Subtenant's Representative as their sole
representatives for this Subtenant Improvement Agreement. Until replaced by
written notice, the Sublessor's Representative and the Subtenant's
Representative will have the full authority and responsibility to act for
Sublessor and Subtenant respectively, as required by this Subtenant Improvement
Agreement.
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3. CONTRACT DOCUMENTS AND PERMITS
A. PREPARATION & APPROVAL OF FINAL PLANS AND COST ESTIMATE.
Subtenant shall cause the Architect to prepare (i) proposed Final Plans, and
(ii) any adjustment(s) to the Construction Schedule occasioned by the Final
Plans on or before June ____, 1998. Sublessor and Subtenant shall review the
Final Plans and any revisions to the Construction Schedule, and deliver to the
other party and to the Architect, the party's written approval or disapproval
thereof on or before June __, 1998. If disapproved in any respect, the parties
shall confer and negotiate in good faith to agree upon the Final Plans and any
modifications to the Construction Schedule, using all reasonable efforts to
achieve final agreement on such items by June ___, 1998. Both parties shall
initial each page of the approved Final Plans and any modifications of the
Construction Schedule.
Sublessor's and Subtenant's approval of the Final Plans and any
Construction Schedule (subject to Landlord approval) modifications shall not be
unreasonably withheld or delayed, provided, however, that Sublessor may withhold
its approval in its sole discretion to any work which adversely affects the
Building structure.
Any disapproval by Sublessor or Subtenant shall be accompanied by
a written statement of the disapproved item, the reasons for disapproval, and
the specific changes required to make the item acceptable. If a party's written
notice of disapproval is not delivered in accordance with the time limits and
standards set forth in this Section, approval shall be deemed given.
B. APPLICATION FOR APPROVALS. When Sublessor and Subtenant
approve the Final Plans, Sublandlord shall submit them to all appropriate
governmental agencies and third parties for issuance of the Permits required for
the construction of the Initial Improvements. Subtenant shall put forth all
reasonable cooperative efforts to obtain the Permits so as not to delay
Completion of the Subtenant Improvements beyond the Scheduled Completion Date.
C. CHANGES TO FINAL PLANS. The Final Plans and Construction
Schedule established in accordance with this Section 3 may be modified only by a
written change order ("Change Order") executed by Sublessor and Subtenant, which
clearly describes (i) the change (subject to Landlord approval) (ii) the party
required to perform the change, and (iii) any revision of the Construction
Schedule occasioned by the change. Neither Sublessor nor Subtenant shall
unreasonably withhold or delay its approval of a change (whether requested by a
party or required by an applicable Law or Restriction ). If the parties are
unable to agree upon any requested Change Order within five (5) days following
written demand for such agreement, then either party may demand immediate
commencement of mediation to resolve the dispute. Landlord shall not be
obligated to go to mediation.
4. PERFORMANCE OF THE WORK
A. SELECTION OF CONTRACTOR(S) AND SUPPLIERS. Construction of the
Initial Improvements shall be performed by a General Contractor selected by
Sublessor and approved by Subtenant, which approval shall not be unreasonably
withheld.
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B. COMMENCEMENT AND COMPLETION OF SUBLESSOR'S WORK. When all
Permits for the Initial Improvements have been obtained, Sublessor shall cause
its Contractor(s) to commence and thereafter diligently to construct the Initial
Improvements so that all of the Initial Improvements will be Completed (as
hereinafter defined) on or before the Scheduled Completion Date.
C. STANDARDS FOR PERFORMANCE OF THE WORK. Sublessor shall cause
all the Initial Improvements to be constructed by well trained, adequately
supervised workers, in a good and workmanlike manner, with new materials, free
from design, material and workmanship defects, and in accordance with ail
Construction Documents and all Laws and Restrictions.
5. COMPLETION OF THE WORK
A. INSPECTION. Subtenant's Representative shall have the right to
enter the Subleased Promises at all reasonable times to inspect the progress of
the Initial Improvements.
B. COMPLETION. The Initial Improvements shall be deemed
"Complete" when (i) construction of the Initial Improvements has been completed
in accordance with the Final Plans and applicable Laws and Restrictions; (ii)
the General Contractor has certified in writing to Sublessor that the Initial
Improvements have been constructed in accordance with the Final Plans and all
applicable Laws and Restrictions; and (iii) all necessary governmental approvals
for occupancy of the entire Subleased Premises have been obtained (including. if
applicable, a Certificate of Occupancy).
6. PAYMENT OF CONSTRUCTION COST
Not more frequently than once each week, Sublessor may deliver to
Subtenant an application for reimbursement of Construction Costs incurred since
the last application for reimbursement, accompanied by reasonable documentary
evidence of the amount. On or before the seventh (7th) day following delivery of
the application for reimbursement, Subtenant shall pay to Sublessor an amount
equal to the amount set forth in such application for reimbursement if Sublessor
also has delivered to Subtenant evidence and documentation adequately
establishing that Sublessor has paid 60% of the aggregate Construction Cost
incurred to such point, provided, any costs in excess of $250,000.00 shall be
paid 50/50 by Sublandlord and Subtenant. Said excess costs shall be mutually
approved in advance in writing.
7. OWNERSHIP & SURRENDER OF INITIAL IMPROVEMENTS
All Initial Improvements shall be surrendered to Sublessor in the
surrender condition required by the Sublease upon the expiration or earlier
termination of the Sublease. Notwithstanding the foregoing, if Subtenant has
paid directly or reimbursed Sublessor for any portion of the Construction Cost
of the Initial Improvements, then as soon as possible after the Completion of
the Initial Improvements, Sublessor and Subtenant shall designate as Subtenant's
property ("Subtenant's Property") those Initial Improvements having a total cost
approximately equal to the portion of the Construction Cost paid by Subtenant.
In determining which Initial Improvements will be designated as Subtenant's
Property, the parties shall confer in good faith
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and shall give preference for designation as Subtenant's Property to those
Initial Improvements that are most readily removable from the Subleased Premises
and those likely to have the most utility for Subtenant outside the Subleased
Premises. Initial Improvements so designated as Subtenant's Property may be
removed from the Subleased Premises subject to Master Lease and Sublease at any
time by Subtenant. Subtenant also shall be entitled to all tax benefits,
depreciation, insurance and condemnation proceeds, assignment and subletting
value, and other ownership attributes of the Initial Improvements designated as
Subtenant's Property. Upon request the Sublessor shall execute documents in form
reasonably acceptable to Subtenant, acknowledging the Subtenant s right, title
and interest in the Initial Improvements designated as Subtenant's Property. At
the expiration or earlier termination of the Sublease, Subtenant shall not be
required to remove any of the Initial Improvements. At the expiration or earlier
termination of the Sublease, all Initial Improvements designated as Subtenant's
Property, at Subtenant's election, may be (i) surrendered to Sublessor in the
surrender condition required by the Sublease, or (ii) removed by Subtenant,
provided Subtenant repairs all damage caused by removal of such Initial
Improvements, provided, however Landlord shall not be bound by the provisions of
this Section 7.
IN WITNESS WHEREOF, the Sublessor and Subtenant have executed this
Subtenant Improvement Agreement, intending to be bound thereby as of the date
first above written.
Subtenant: Sublessor:
BROADBASE INFORMATION SARONIX
SYSTEMS, INC., a California corporation a California corporation
By: /s/ Xxxxx Bay By: /s/ Xxxxx Xxxxxxxx
-------------------------------- --------------------------------
Name: Xxxxx Bay Name: Xxxxx Xxxxxxxx
----------------------------- -----------------------------
Title: Title:
----------------------------- ----------------------------
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ATTACHMENT 1
DESIGN & CONSTRUCTION SCHEDULE
DATE OR DAYS
A. DESIGN SCHEDULE TO COMPLETE
--------------- -----------
1. Architect completes the proposed Final Plans. June ___, 1998
2. Sublessor and Subtenant approve/disapprove the _____ days after
proposed Final Plans, and any modifications to Item 1.
the Construction Schedule
3. Last day for Sublessor and Subtenant to agree
upon and initial the Final Plans and any
modifications to the Construction Schedule
B. CONSTRUCTION SCHEDULE
4. Scheduled Completion Date for Initial _________, 1998
Improvements
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SARONIX/BROADBASE
UTILITY CHARGE ALGORITHM
A. BACKGROUND
Broadbase, a subtenant of Saronix will occupy approximately 20,941
sq.ft. of the facility at 000 Xxxxxxxxx, Xxxxx Xxxx, XX. The gross area
of the whole facility is approximately 63,931 sq.ft. Broadbase will
operate a software development operation with the majority of its space
occupied by modular furniture cubicles. Saronix will operate its
headquarters, development and manufacturing activities including
significant process and Clean Room activities.
In recognition of the differences between the two operation modes of the
companies, it has been agreed to that an algorithm for sharing the
aggregated utility cost is to be developed.
B. UTILITY ALGORITHM
The issues of property tax, janitorial and facilities maintenance have
been dealt with separately in the subtenant lease between Broadbase and
Saronix.
Broadbase will contract and pay directly for its voice and data
communication services in support of the facility.
Utilities to be covered by the algorithm are: 1) electrical, 2) natural
gas, 3) water.
C. ALGORITHM ELEMENTS
Anticipated Bases for Broadbase
Monthly Cost Allocation Cost
----------------------------------------------------------------------------------------
Electricity Total anticipated 18% $2,952
$16,400/month
Natural Gas Total anticipated 28% $546
$1,950/month
Water Total anticipated 24% $116
xxxx $485/month
----------------------------------------------------------------------------------------
$3,619
(17.30cents/sq.ft./month)
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D. BASE POINT ADJUSTMENT
In February 1999, an adjustment to the utility algorithm shall be made
on the basis of actual experience taken from prior xxxxxxxx for the
various utilities based on joint occupancy since November 1998. The
charges paid by Broadbase prior to the base point adjustment shall be
those agreed to in the initial algorithm. Going forward, Broadbase shall
pay the adjusted utility cost as determined from the base point
adjustment.
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