The Prime Lease. (a) This Sublease and all rights of Subtenant under this Sublease and with respect to the Premises are subject to the terms, conditions, and provisions of the Prime Lease, except for the provisions of the Prime Lease except as they conflict directly with this Sublease or are deemed not applicable to this Sublease pursuant to this Section 10(a). Subtenant assumes and agrees to perform faithfully and be bound by, with respect to the Premises, all of Sublandlord’s obligations, covenants, agreements, and liabilities under the Prime Lease and all terms, conditions, provisions, and restrictions contained in the Prime Lease, except to the extent set forth in the preceding sentence, and except: (i) for the payment of Base Rent (each as defined or used in the Prime Lease); (ii) that, except as set forth in Section 9(a) above, neither Sublandlord nor Subtenant needs to construct or install tenant improvements; (iii) that none of the provisions in the Prime Lease allowing or purporting to allow any rights or options of lease expansion, reduction, cancellation, or extension, or any rent concessions or construction allowances, apply to this Sublease; and (iv) Subtenant has a period of time equal to the period of time that the tenant under the Prime Lease has to respond to or otherwise cure any notices given by Landlord under the Prime Lease, less two (2) days. (b) Without limitation of the foregoing: (i) Except with respect to the Future Alterations described in Section 9(e) above, Subtenant will not make any changes, alterations, or additions in or to the Premises, except as permitted under the Prime Lease and subject to Sublandlord’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed. (ii) If Subtenant desires to take any action, and the Prime Lease requires Sublandlord to obtain the consent of Landlord before undertaking that type of action, Subtenant will not undertake the action without the prior written consent of Sublandlord. Sublandlord may condition its consent on the consent of Landlord and may require that Subtenant contact Landlord directly for its consent and that Subtenant take all other steps needed to assure that Sublandlord will have no additional obligations to Landlord under the Prime Lease as a result of such action. Within twenty (20) days of notice from Sublandlord, Subtenant will reimburse Sublandlord for all reasonable out-of-pocket costs, expenses, and attorneys’ fees that Sublandlord incurs in attempting to obtain a consent, other than the Landlord’s Consent, from Landlord. (iii) Sublandlord has, with respect to Subtenant, all rights, privileges, options, reservations, and remedies granted or allowed to, or held by, Landlord under the Prime Lease, except to the extent they are inconsistent with, or modified by the provisions of this Sublease, including without limitation, all rights given to Landlord and its agents and representatives by the Prime Lease to enter the Prime Lease Space, upon reasonable notice and accompanied by a representative of Subtenant, as provided therein. (iv) Subtenant will maintain insurance of the kinds and in the amounts required to be maintained by Sublandlord under the Prime Lease. All policies of liability insurance maintained by Subtenant shall name as additional insureds Landlord, SVN Management, Inc., a California corporation, and Sublandlord and their respective officers, directors, members, managers, or partners, as the case may be, and the respective agents and employees of each of them. In addition, Subtenant will furnish Landlord and Sublandlord with evidence of the insurance coverage in amounts that Landlord or Sublandlord may reasonably require. (v) Neither Subtenant nor Sublandlord will do anything or suffer or permit anything to be done that could result in a default under the Prime Lease or permit Landlord to cancel the Prime Lease. Sublandlord agrees to hereinafter duly perform all of the terms, covenants and conditions on Sublandlord’s part to be performed as tenant under the Prime Lease except for those of same which have been undertaken by Subtenant pursuant to the terms of this Sublease, including without limitation Sublandlord’s obligation to pay Base Rent (as defined in the Prime Lease) as tenant under the Prime Lease. Sublandlord agrees that it shall not voluntarily surrender, assign (which assignment may only be made subject to this Sublease) or enter into any amendment of the Prime Lease, during the Term hereof, without obtaining the prior written consent of Subtenant. (c) Sublandlord represents and warrants to Subtenant that: (i) the Prime Lease is in full force and effect as of the date hereof, and has not been modified or amended as of that date and the copy attached hereto as Exhibit A is a complete copy of the Prime Lease and First Amendment to Lease; (ii) Sublandlord is not now in default under any provision of the Prime Lease; (iii) as of the Effective Date, no notice has been received of a default by Sublandlord under the terms of the Prime Lease; and (iv) to the best of Sublandlord’s actual knowledge, Landlord is not, as of the date hereof, in default in the performance or observance of its obligations under the Prime Lease. (d) Despite anything contained in this Sublease or in the Prime Lease to the contrary, Sublandlord and Subtenant agree that: (i) Rent will not ▇▇▇▇▇ by reason of any damage to or destruction of the Premises unless, and then only to the extent that, rent and other payments actually ▇▇▇▇▇ under the Prime Lease with respect to the Premises. (ii) Subtenant is not entitled to any portion of the proceeds of any award for a condemnation or other taking, or a conveyance in lieu of a condemnation or taking, of all or any portion of the Building, the Prime Lease Space, or the Premises, but Subtenant may pursue a separate action against the applicable governmental authority for an award with respect to the taking of any of Subtenant’s trade fixtures or other removable property or to Subtenant’s costs and expenses of relocation as a result of the condemnation or other taking. (iii) except as expressly set forth in this Sublease, Subtenant is not entitled to exercise or have Sublandlord exercise any option under the Prime Lease, including, without limitation, any option to terminate or extend the term of the Prime Lease or lease additional space. (iv) If the terms of the Prime Lease conflict with the terms of this Sublease, the terms of this Sublease control as between Sublandlord and Subtenant. (e) Sublandlord does not assume the obligations or liabilities of Landlord under the Prime Lease and is not making the representations or warranties, if any, made by Landlord in the Prime Lease. With respect to work, services, repairs, and restoration or the performance of other obligations required of Landlord under the Prime Lease, Sublandlord’ sole obligation is to request the same, upon written request from Subtenant, and to use reasonable efforts to obtain the same from Landlord. All reasonable out-of-pocket costs and expenses, including, without limitation, attorneys’ fees, incurred by Sublandlord in attempting to enforce Landlord’s obligations and liabilities under the Prime Lease as aforesaid shall be reimbursed by Subtenant within twenty (20) days of notice from Sublandlord, and shall be deemed Rent due and payable under this Sublease. Sublandlord shall not be liable in damages for or on account of any failure by Landlord to perform the obligations and duties imposed on it under the Prime Lease. (f) Nothing contained in this Sublease shall be construed to create privity of estate or contract between Subtenant and Landlord.
Appears in 2 contracts
Sources: Sublease (Gevo, Inc.), Sublease (Gevo, Inc.)
The Prime Lease. (a) This Sublease and all rights rights, privileges and interests of Subtenant under this Sublease hereunder and with respect to the Leased Premises are subject to all of the terms, conditions, covenants, warranties, representations and provisions of the Prime Lease. Notwithstanding any provision to the contrary in the Assignment, except for the provisions of the Prime Lease except as they conflict directly with this Sublease or are deemed not applicable to this Sublease pursuant to this Section 10(a). between Sublandlord and Subtenant, Subtenant hereby assumes and agrees to perform faithfully and be bound by, with respect to the Leased Premises, all of Sublandlord’s obligations, warranties, representations, covenants, agreements, provisions and liabilities under the Prime Lease and all terms, conditions, provisions, provisions and restrictions contained in the Prime Lease, except to the extent set forth in the preceding sentence, and except:
(i) for the payment of Base Rent (each as defined or used in the Prime Lease);
(ii) that, except as set forth in Section 9(a) above, neither Sublandlord nor Subtenant needs to construct or install tenant improvements;
(iii) that none of the provisions in the Prime Lease allowing or purporting to allow any rights or options of lease expansion, reduction, cancellation, or extension, or any rent concessions or construction allowances, apply to this Sublease; and
(iv) Subtenant has a period of time equal to the period of time that the tenant under the Prime Lease has to respond to or otherwise cure any notices given by Landlord under the Prime Lease, less two (2) days.
(b) . Without limitation of the foregoing:
(i) Except with respect to the Future Alterations described in Section 9(e) above, Subtenant will shall not make any changes, alterations, alterations or additions in or to the Premises, Leased Premises except as permitted under otherwise expressly provided in the Prime Lease and subject to Sublandlord’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed.herein;
(ii) If Subtenant desires to take any action, other action and the Prime Lease requires would require that Sublandlord to obtain the consent of Landlord before undertaking that type any action of actionthe same kind, Subtenant will shall not undertake the action same without the prior written consent of Landlord and Sublandlord. Sublandlord may condition its consent on the consent of Landlord being obtained and may require that Subtenant to contact Landlord directly for its consent such consent. All such consents shall be at the sole cost and that Subtenant take all other steps needed to assure that Sublandlord will have no additional obligations to Landlord under the Prime Lease as a result expense of such action. Within twenty (20) days of notice from Sublandlord, Subtenant will reimburse Sublandlord for all reasonable out-of-pocket costs, expenses, and attorneys’ fees that Sublandlord incurs in attempting to obtain a consent, other than the Landlord’s Consent, from Landlord.Subtenant;
(iii) Sublandlord has, with respect shall have the right during all normal business hours upon reasonable prior notice to Subtenant, all rights, privileges, options, reservations, and remedies granted or allowed to, or held by, Landlord under the Prime Lease, except to the extent they are inconsistent with, or modified by the provisions of this Sublease, including without limitation, all rights given to Landlord and its agents and representatives by the Prime Lease Subtenant to enter upon and inspect the Prime Lease Space, upon reasonable notice and accompanied by a representative of Subtenant, as provided therein.
(iv) Subtenant will maintain insurance of the kinds and in the amounts required to be maintained by Sublandlord under the Prime Lease. All policies of liability insurance maintained by Subtenant shall name as additional insureds Landlord, SVN Management, Inc., a California corporation, and Sublandlord and their respective officers, directors, members, managers, or partners, as the case may be, and the respective agents and employees of each of them. In addition, Subtenant will furnish Landlord and Sublandlord with evidence of the insurance coverage in amounts that Landlord or Sublandlord may reasonably require.
(v) Neither Subtenant nor Sublandlord will do anything or suffer or permit anything to be done that could result in a default under the Prime Lease or permit Landlord to cancel the Prime Lease. Sublandlord agrees to hereinafter duly perform all of the terms, covenants and conditions on Sublandlord’s part to be performed as tenant under the Prime Lease except for those of same which have been undertaken by Subtenant pursuant to the terms of this Sublease, including without limitation Sublandlord’s obligation to pay Base Rent (as defined in the Prime Lease) as tenant under the Prime Lease. Sublandlord agrees that it shall not voluntarily surrender, assign (which assignment may only be made subject to this Sublease) or enter into any amendment of the Prime Lease, during the Term hereof, without obtaining the prior written consent of Subtenant.
(c) Sublandlord represents and warrants to Subtenant that:
(i) the Prime Lease is in full force and effect as of the date hereof, and has not been modified or amended as of that date and the copy attached hereto as Exhibit A is a complete copy of the Prime Lease and First Amendment to Lease;
(ii) Sublandlord is not now in default under any provision of the Prime Lease;
(iii) as of the Effective Date, no notice has been received of a default by Sublandlord under the terms of the Prime Lease; and
(iv) to the best of Sublandlord’s actual knowledge, Landlord is not, as of the date hereof, in default in the performance or observance of its obligations under the Prime Lease.
(d) Despite anything contained in this Sublease or in the Prime Lease to the contrary, Sublandlord and Subtenant agree that:
(i) Rent will not ▇▇▇▇▇ by reason of any damage to or destruction of the Premises unless, and then only to the extent that, rent and other payments actually ▇▇▇▇▇ under the Prime Lease with respect to the Premises.
(ii) Subtenant is not entitled to any portion of the proceeds of any award for a condemnation or other taking, or a conveyance in lieu of a condemnation or taking, of all or any portion of the Building, the Prime Lease Space, or the Premises, but Subtenant may pursue a separate action against the applicable governmental authority for an award with respect to the taking of any of Subtenant’s trade fixtures or other removable property or to Subtenant’s costs and expenses of relocation as a result of the condemnation or other taking.
(iii) except as expressly set forth in this Sublease, Subtenant is not entitled to exercise or have Sublandlord exercise any option under the Prime Lease, including, without limitation, any option to terminate or extend the term of the Prime Lease or lease additional space.
(iv) If the terms of the Prime Lease conflict with the terms of this Sublease, the terms of this Sublease control as between Sublandlord and Subtenant.
(e) Sublandlord does not assume the obligations or liabilities of Landlord under the Prime Lease and is not making the representations or warranties, if any, made by Landlord in the Prime Lease. With respect to work, services, repairs, and restoration or the performance of other obligations required of Landlord under the Prime Lease, Sublandlord’ sole obligation is to request the same, upon written request from Subtenant, and to use reasonable efforts to obtain the same from Landlord. All reasonable out-of-pocket costs and expenses, including, without limitation, attorneys’ fees, incurred by Sublandlord in attempting to enforce Landlord’s obligations and liabilities under the Prime Lease as aforesaid shall be reimbursed by Subtenant within twenty (20) days of notice from Sublandlord, and shall be deemed Rent due and payable under this Sublease. Sublandlord shall not be liable in damages for or on account of any failure by Landlord to perform the obligations and duties imposed on it under the Prime Lease.
(f) Nothing contained in this Sublease shall be construed to create privity of estate or contract between Subtenant and Landlord.Leased
Appears in 2 contracts
Sources: Fourth Amendment (Neiman Marcus Group LTD LLC), Credit Agreement (Neiman Marcus Group LTD LLC)
The Prime Lease. (a) This Sublease and all rights rights, privileges and interests of Subtenant under this Sublease hereunder and with respect to the Leased Premises are subject to all of the terms, conditions, covenants, warranties, representations and provisions of the Prime Lease. Notwithstanding any provision to the contrary in the Assignment, except for the provisions of the Prime Lease except as they conflict directly with this Sublease or are deemed not applicable to this Sublease pursuant to this Section 10(a). between Sublandlord and Subtenant, Subtenant hereby assumes and agrees to perform faithfully and be bound by, with respect to the Leased Premises, all of Sublandlord’s obligations, warranties, representations, covenants, agreements, provisions and liabilities under the Prime Lease and all terms, conditions, provisions, provisions and restrictions contained in the Prime Lease, except to the extent set forth in the preceding sentence, and except:
(i) for the payment of Base Rent (each as defined or used in the Prime Lease);
(ii) that, except as set forth in Section 9(a) above, neither Sublandlord nor Subtenant needs to construct or install tenant improvements;
(iii) that none of the provisions in the Prime Lease allowing or purporting to allow any rights or options of lease expansion, reduction, cancellation, or extension, or any rent concessions or construction allowances, apply to this Sublease; and
(iv) Subtenant has a period of time equal to the period of time that the tenant under the Prime Lease has to respond to or otherwise cure any notices given by Landlord under the Prime Lease, less two (2) days.
(b) . Without limitation of the foregoing:
(i) Except with respect to the Future Alterations described in Section 9(e) above, Subtenant will shall not make any changes, alterations, alterations or additions in or to the Premises, Leased Premises except as permitted under otherwise expressly provided in the Prime Lease and subject to Sublandlord’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed.herein;
(ii) If Subtenant desires to take any action, other action and the Prime Lease requires would require that Sublandlord to obtain the consent of Landlord before undertaking that type any action of actionthe same kind, Subtenant will shall not undertake the action same without the prior written consent of Landlord and Sublandlord. Sublandlord may condition its consent on the consent of Landlord being obtained and may require that Subtenant to contact Landlord directly for its consent such consent. All such consents shall be at the sole cost and that Subtenant take all other steps needed to assure that Sublandlord will have no additional obligations to Landlord under the Prime Lease as a result expense of such action. Within twenty (20) days of notice from Sublandlord, Subtenant will reimburse Sublandlord for all reasonable out-of-pocket costs, expenses, and attorneys’ fees that Sublandlord incurs in attempting to obtain a consent, other than the Landlord’s Consent, from Landlord.Subtenant;
(iii) Sublandlord has, with respect shall have the right during all normal business hours upon reasonable prior notice to Subtenant, all rights, privileges, options, reservations, Subtenant to enter upon and remedies granted or allowed to, or held by, Landlord under inspect the Prime Lease, except to Leased Premises. Without limiting the extent they are inconsistent with, or modified by the provisions of this Sublease, including without limitationforegoing, all rights given to Landlord and its agents and representatives by the Prime Lease to enter and/or inspect the Prime Lease Space, upon reasonable notice Leased Premises shall inure to the benefit of Sublandlord and accompanied by a representative of Subtenant, as provided therein.their respective agents and representatives with respect to the Leased Premises;
(iv) Sublandlord shall also have all other rights, and all privileges, options, reservations and remedies, granted or allowed to, or held by, Landlord under the Prime Lease;
(v) Subtenant will shall maintain insurance of the kinds and in the amounts required to be maintained by Sublandlord under the Prime Lease. All policies of liability insurance maintained by ; and
(vi) Subtenant shall name as additional insureds Landlord, SVN Management, Inc., a California corporation, and Sublandlord and their respective officers, directors, members, managers, or partners, as the case may be, and the respective agents and employees of each of them. In addition, Subtenant will furnish Landlord and Sublandlord with evidence of the insurance coverage in amounts that Landlord or Sublandlord may reasonably require.
(v) Neither Subtenant nor Sublandlord will not do anything or suffer or permit anything to be done that which could result in a default or breach under the Prime Lease or permit the Prime Lease, with the passage of time or the service of notice or both, to be cancelled or terminated (or which could limit or prohibit Sublandlord from exercising any option or right of renewal, first negotiation, first refusal or right of expansion under the Prime Lease).
(b) In addition to the other covenants and obligations under this Sublease and the Prime Lease as incorporated herein, and without limitation of the foregoing, Sublandlord agrees as follows, subject in each case to the due and punctual performance and observance of all covenants and obligations of Subtenant hereunder:
(i) Sublandlord shall not do anything which could reasonably be expected to result in a default under the Prime Lease or permit Landlord Lease; provided, however, that Sublandlord shall not be in default of this covenant to cancel the Prime Lease. Sublandlord agrees to hereinafter duly perform all of extent the terms, covenants and conditions on Sublandlord’s part to be performed as tenant default under the Prime Lease except for those of same which have been undertaken is caused or attributable (in whole or in part) by Subtenant pursuant to the terms of this SubleaseSubtenant, including without limitation Sublandlord’s obligation to pay Base Rent its shareholders, partners, members, directors, officers, employees, agents, customers or invitees.
(as defined in the Prime Leaseii) as tenant under the Prime Lease. Sublandlord agrees that it shall not voluntarily surrenderamend, assign (which assignment may only be made subject to this Sublease) modify or enter into any amendment of terminate the Prime Lease, during the Term hereof, without obtaining the prior written consent of Subtenant, which may be withheld in its sole discretion to the extent the same could increase Subtenant’s liabilities or obligations under this Sublease.
(iii) If any action to be taken by Subtenant or any other matter would require the consent or approval of Sublandlord under this Sublease, but not Landlord under the Prime Lease, Sublandlord’s consent or approval shall not be unreasonably withheld, conditioned or delayed. If any action to be taken by Subtenant or any other matter would require the consent or approval of Landlord under the Prime Lease, (i) Sublandlord shall be deemed to have consented to or approved such request if Landlord consents to or approves the same, and (ii) Sublandlord shall be deemed not to have consented to or approved such request if Landlord does not consent to or approve the same.
(iv) Sublandlord shall not assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Sublease or any interest in this Sublease, whether voluntarily, by operation of law or otherwise (including a merger or transfer of voting control in Sublandlord), in each case without the prior written consent of Subtenant, which may be withheld in its sole discretion.
(c) Sublandlord represents and warrants to Subtenant that:
(i) the Prime Lease is in full force and effect as of the date hereof, and has not been modified or amended as of that date and the copy attached hereto as Exhibit A is a complete copy of the Prime Lease and First Amendment to Lease;
(ii) Sublandlord is not now in default under any provision of the Prime Lease;
(iii) as of the Effective Date, no notice has been received of a default by Sublandlord under the terms of the Prime Lease; and
(iv) to the best of Sublandlord’s actual knowledge, Landlord is not, as of the date hereof, in default in the performance or observance of its obligations under the Prime Lease.
(d) Despite Notwithstanding anything contained in this Sublease herein or in the Prime Lease which may appear to be to the contrary, Sublandlord and Subtenant hereby agree thatas follows:
(i) Rent will Subtenant shall not assign, mortgage, pledge, hypothecate, or otherwise transfer or permit the transfer of this Sublease or any interest of Subtenant in this Sublease, directly or indirectly, by operation of law or otherwise, or permit the use of the Leased Premises or any part thereof by any persons other than Subtenant and Subtenant’s employees, or sublet the Leased Premises or any part thereof;
(ii) in the event of any condemnation or casualty damage or destruction of the Leased Premises, Sublandlord shall have no obligation to restore the Leased Premises, all such obligations (if any) of Sublandlord as the tenant under the Prime Lease (if any) to be performed by Subtenant; provided that neither rental nor additional rent or other payments hereunder shall ▇▇▇▇▇ or be suspended by reason of any condemnation, damage to or destruction of the Leased Premises or any part thereof, unless, and then only to the extent that, rental and additional rent and such other payments actually ▇▇▇▇▇ under the Prime Lease with respect to the Premises.Leased Premises on account of such event;
(iiiii) Subtenant is shall not entitled have any right to any portion of the proceeds of any award for a condemnation or other taking, or a conveyance in lieu of a condemnation or takingthereof, of all or any portion of the Building, the Prime Lease Space, or the Leased Premises, but Subtenant may pursue a separate action against the applicable governmental authority for an award with respect to the taking of any of Subtenant’s trade fixtures or other removable property or to Subtenant’s costs and expenses of relocation as a result of the condemnation or other taking.;
(iiiiv) except as expressly set forth in this Sublease, Subtenant is shall not entitled have any right to exercise or have Sublandlord exercise any option under the Prime Lease, including, without limitation, any option or right of first refusal, first negotiation or first offer to terminate or extend the term of the Prime Lease or lease additional space.; and
(ivv) If In the terms event of any conflict between the terms, conditions and provisions of the Prime Lease conflict with the terms and of this Sublease, the terms terms, conditions and provisions of this Sublease control as between Sublandlord the Prime Lease shall, in all instances, govern and Subtenantcontrol.
(ed) It is expressly understood and agreed that Sublandlord does not assume and shall not have any of the obligations or liabilities of Landlord under the Prime Lease and that Sublandlord is not making the representations or warranties, inducements, rent or other concessions or abatements, allowances, tenant improvements or landlord’s work, if any, made by Landlord in the Prime Lease. With respect to work, services, repairs, repairs and restoration or the performance of other obligations required of Landlord under the Prime Lease, Sublandlord’ ’s sole obligation is with respect thereto shall be to request the same, upon written request from Subtenant, and to use reasonable efforts to obtain the same from Landlord. All reasonable out-of-pocket costs and expenses, including, without limitation, attorneys’ fees, incurred by Sublandlord in attempting to enforce Landlord’s obligations and liabilities under the Prime Lease as aforesaid shall be reimbursed by Subtenant within twenty (20) days of notice from Sublandlord, and shall be deemed Rent due and payable under this Sublease. Sublandlord shall not be liable in any respect, in damages or otherwise, nor shall rent ▇▇▇▇▇ hereunder, for or on account of any failure by Landlord to perform the obligations and duties imposed on it under the Prime Lease.
(fe) Nothing contained in this Sublease shall be construed to create privity of estate or contract between Subtenant and Landlord, unless Subtenant attorns to Landlord by written instrument.
(f) Nothing contained in this Sublease shall be construed to release the Sublandlord of any of its obligations or liabilities owed to Landlord under the Prime Lease.
Appears in 2 contracts
Sources: Indenture (Neiman Marcus Group LTD LLC), Indenture (Neiman Marcus Group LTD LLC)
The Prime Lease. (a) This Sublease and all of the rights of Subtenant under this Sublease and with respect to the Sublease Premises are subject to the terms, conditions, conditions and provisions of the Prime Lease, except for the provisions of the Prime Lease except as they conflict directly with this Sublease or are deemed not applicable to this Sublease pursuant to this Section 10(a). Subtenant assumes and agrees to perform faithfully and be bound by, with respect to the Sublease Premises, all of Sublandlord’s obligations, covenants, agreements, agreements and liabilities under the Prime Lease Lease, and all of the terms, conditions, provisions, provisions and restrictions contained in the Prime Lease, except in each case to the extent set forth in arising from and after the preceding sentenceCommencement Date until the termination of this Sublease, and except:
(i) except that Subtenant shall not be liable or have any obligation for the payment of any “Base Rent Rent” or “Operating Expenses” (each as such terms are defined or used in the Prime Lease);
(ii) that, except as set forth in Section 9(a) above, neither Sublandlord nor Subtenant needs to construct or install tenant improvements;
(iii) that none of the provisions in the Prime Lease allowing or purporting to allow any rights or options of lease expansion, reduction, cancellation, or extension, or any rent concessions or construction allowances, apply to this Sublease; and
(iv) Subtenant has a period of time equal to the period of time that the tenant under the Prime Lease has to respond to or otherwise cure any notices given by Landlord under the Prime Lease, less two (2) days.
(b) Without limitation of the foregoing:
(i) Except with respect to the Future Alterations described in Section 9(e) above, Subtenant will shall not make any changes, alterations, alterations or additions in or to the Premises, Sublease Premises except as otherwise expressly permitted under this Sublease;
(ii) If Subtenant desires to take any other action and the Prime Lease and subject to Sublandlord’s would require that Sublandlord obtain the consent of Landlord before undertaking any action of the same kind, Subtenant shall not undertake the same without obtaining the prior written consentconsent of Sublandlord, which consent shall not be unreasonably withheld, conditioned or delayed.
(ii) If Subtenant desires to take any action, and the Prime Lease requires Sublandlord to obtain the consent of Landlord before undertaking that type of action, Subtenant will not undertake the action without the prior written consent of Sublandlord. Sublandlord may condition its consent on obtaining the consent of Landlord and may require that permit Subtenant to contact Landlord directly for its consent and that such consent. Sublandlord agrees to cooperate with Subtenant to take all other steps needed to assure that Sublandlord will have no additional obligations to Landlord under the Prime Lease as a result of such action. Within twenty (20) days of notice from Sublandlord, Subtenant will reimburse Sublandlord for all reasonable out-of-pocket costs, expenses, and attorneys’ fees that Sublandlord incurs in attempting actions to obtain a consent, other than the Landlord’s Consent, such consent from Landlord and to sign requests for such consent from Landlord.;
(iii) Sublandlord has, with respect to Subtenant, all rights, privileges, options, reservations, and remedies granted or allowed to, or held by, Landlord under the Prime Lease, except to the extent they are inconsistent with, or modified by the provisions of this Sublease, including without limitation, all All rights given to Landlord and its agents and representatives by under the Prime Lease to enter the Prime Lease Space, upon reasonable notice Sublease Premises shall inure to the benefit of Sublandlord and accompanied by a representative of Subtenant, as provided therein.its respective agents and representatives with respect to the Sublease Premises;
(iv) Sublandlord shall also have all other rights, privileges, options, reservations and remedies granted or allowed to or held by Landlord under the Prime Lease;
(v) Subtenant will shall maintain insurance of the kinds and in the amounts required to be maintained by Sublandlord under the Prime LeaseLease with respect to the Sublease Premises. All insurance policies of liability insurance maintained by Subtenant shall name as additional insureds Landlord, SVN Management, Inc., a California corporation, and Sublandlord and their respective officers, officers and/or directors, members, managers, or partners, as the case may be, and the respective agents and employees of each of them. In addition, Subtenant will furnish Landlord and Sublandlord with evidence of the insurance coverage in amounts that Landlord or Sublandlord may reasonably require.as additional insureds;
(vvi) Neither Subtenant nor Sublandlord will shall not do anything or suffer or permit anything to be done that which could result in a default under the Prime Lease or permit Landlord to cancel the Prime Lease. Sublandlord agrees to hereinafter duly perform all of the terms, covenants and conditions on Sublandlord’s part to be performed as tenant under the Prime Lease except for those of same which have been undertaken by Subtenant pursuant to the terms of this Sublease, including without limitation Sublandlord’s obligation to be canceled or terminated; and
(vii) Sublandlord shall timely pay all Base Rent (as defined in the Prime Lease) as tenant and all Operating Expenses required under the Prime Lease. During the Term, Sublandlord agrees that it shall not voluntarily surrender, assign (which assignment may only be made subject to this Sublease) provide any consent or enter into any amendment approval requested of Sublandlord by Landlord under the Prime Lease, during the Term hereof, Lease without first obtaining the prior written consent of Subtenant.
(c) , which consent shall not be unreasonably withheld, conditioned or delayed. Sublandlord represents and warrants shall not do anything or suffer or permit anything to Subtenant that:
(i) be done which could result in a default under the Prime Lease is in full force and effect as of the date hereof, and has not been modified or amended as of that date and the copy attached hereto as Exhibit A is a complete copy of permit the Prime Lease to be canceled or terminated. Upon written request by Subtenant, Sublandlord shall use commercially reasonable and First Amendment diligent efforts to Lease;
(ii) Sublandlord is not now in default cause Landlord to provide any and all services required under any provision of the Prime Lease;
(iii) as of the Effective DateLease to be provided by Landlord or to provide consent or approval regarding a requested action, no notice has been received of a default by Sublandlord under the terms of the Prime Lease; and
(iv) to the best of Sublandlord’s actual knowledge, Landlord when such consent or approval is not, as of the date hereof, in default in the performance or observance of its obligations required under the Prime Lease.
(dc) Despite Notwithstanding anything contained in this Sublease or in the Prime Lease to the contrary, Sublandlord and Subtenant agree thatas follows:
(i) Rent Subtenant shall not assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Sublease or any interest of Subtenant in this Sublease, by operation of law or otherwise, nor permit the use of all or any part of the Sublease Premises by any persons or entities other than Subtenant and Subtenant’s employees, nor sublet the Sublease Premises, without the prior written consent of Landlord and Sublandlord, which, with respect to Sublandlord, shall not be unreasonably withheld, conditioned or delayed. Notwithstanding anything herein to the contrary, with respect to Sublandlord’s consent requirements in the immediately preceding sentence, any merger of Subtenant with or into another entity or the sale of all or substantially all of the stock or assets of Subtenant (a “Permitted Transfer”) shall not be considered an assignment or transfer by Subtenant of this Sublease or otherwise subject to the restrictions of this clause (c)(i) so long as (A) not less than thirty (30) days prior to the occurrence of the Permitted Transfer, Subtenant notifies Sublandlord of the Proposed Permitted Transfer, and (B) along with such notice, Subtenant furnishes Sublandlord with documentation evidencing that the successor to Subtenant immediately following the Permitted Transfer will have a tangible net worth (as determined according to generally accepted principles of accounting consistently applied) not less than the tangible net worth of Subtenant as of the Commencement Date. Subtenant acknowledges that no Permitted Transfer will become effective unless and until consented to by Landlord.
(ii) Neither rental nor other payments under this Sublease shall ▇▇▇▇▇ by reason of any damage to or to, destruction of or interruption of services to all or any part of the Sublease Premises or the Building unless, and then only to the extent that, rent rental and such other payments actually ▇▇▇▇▇ under the Prime Lease with respect to the Premises.Sublease Premises on account of such event;
(iiiii) Subtenant is shall not entitled have any right to any portion of the proceeds of any award for a condemnation or other taking, or a conveyance in lieu of a condemnation or takingcondemnation, of all or any portion of the Building, the Prime Lease Space, Building or the Sublease Premises, but Subtenant may pursue a separate action against the applicable governmental authority for an award with respect to the taking of any of Subtenant’s trade fixtures or other removable property or to Subtenant’s costs and expenses of relocation as a result of the condemnation or other taking.;
(iiiiv) except as expressly set forth in this Sublease, Subtenant is shall not entitled have any right to exercise or have Sublandlord exercise any option under the Prime Lease, including, without limitation, any option to terminate or extend the term of the Prime Lease or lease additional space.; and
(ivv) If In the terms event of any conflict between the terms, conditions and provisions of the Prime Lease conflict with and the terms terms, conditions and provisions of this Sublease, the terms terms, conditions and provisions of this Sublease control as between Sublandlord shall in all instances govern and Subtenantcontrol.
(ed) It is expressly understood and agreed that Sublandlord does not assume and shall not have any of the obligations or liabilities of Landlord under the Prime Lease and that Sublandlord is not making the representations or warranties, if any, made by Landlord in the Prime Lease. With respect to work, services, repairs, repairs and restoration or the performance of other obligations required of Landlord under the Prime Lease, Sublandlord’ ’s sole obligation is shall be to request the same, upon written request from Subtenant, and to use commercially reasonable and diligent efforts to obtain the same from Landlord and to allow Subtenant to proceed directly against Landlord. All reasonable out-of-pocket costs and expenses, including, without limitation, attorneys’ fees, incurred by Sublandlord in attempting to enforce Landlord’s obligations and liabilities under the Prime Lease as aforesaid shall be reimbursed by Subtenant within twenty (20) days of notice from Sublandlord, and shall be deemed Rent due and payable under this Sublease. Sublandlord shall not be liable in damages damages, nor shall rent ▇▇▇▇▇, for or on account of any failure by Landlord to perform the obligations and duties imposed on it under the Prime LeaseLease (except Subtenant shall receive a pro rata share of any rent abatement which Sublandlord may receive with respect to the Sublease Premises on account of such failure by Landlord).
(f) Nothing contained in this Sublease shall be construed to create privity of estate or contract between Subtenant and Landlord.
Appears in 1 contract
Sources: Sublease (Targacept Inc)
The Prime Lease. (a) This Sublease and all rights rights, privileges and interests of Subtenant under this Sublease hereunder and with respect to the Leased Premises are subject to all of the terms, conditions, covenants, warranties, representations and provisions of the Prime Lease. Notwithstanding any provision to the contrary in the Assignment, except for the provisions of the Prime Lease except as they conflict directly with this Sublease or are deemed not applicable to this Sublease pursuant to this Section 10(a). between Sublandlord and Subtenant, Subtenant hereby assumes and agrees to perform faithfully and be bound by, with respect to the Leased Premises, all of Sublandlord’s obligations, warranties, representations, covenants, agreements, provisions and liabilities under the Prime Lease and all terms, conditions, provisions, provisions and restrictions contained in the Prime Lease, except to the extent set forth in the preceding sentence, and except:
(i) for the payment of Base Rent (each as defined or used in the Prime Lease);
(ii) that, except as set forth in Section 9(a) above, neither Sublandlord nor Subtenant needs to construct or install tenant improvements;
(iii) that none of the provisions in the Prime Lease allowing or purporting to allow any rights or options of lease expansion, reduction, cancellation, or extension, or any rent concessions or construction allowances, apply to this Sublease; and
(iv) Subtenant has a period of time equal to the period of time that the tenant under the Prime Lease has to respond to or otherwise cure any notices given by Landlord under the Prime Lease, less two (2) days.
(b) . Without limitation of the foregoing:
(i) Except with respect to the Future Alterations described in Section 9(e) above, Subtenant will shall not make any changes, alterations, alterations or additions in or to the Premises, Leased Premises except as permitted under otherwise expressly provided in the Prime Lease and subject to Sublandlord’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed.herein;
(ii) If Subtenant desires to take any action, other action and the Prime Lease requires would require that Sublandlord to obtain the consent of Landlord before undertaking that type any action of actionthe same kind, Subtenant will shall not undertake the action same without the prior written consent of Landlord and Sublandlord. Sublandlord may condition its consent on the consent of Landlord being obtained and may require that Subtenant to contact Landlord directly for its consent such consent. All such consents shall be at the sole cost and that Subtenant take all other steps needed to assure that Sublandlord will have no additional obligations to Landlord under the Prime Lease as a result expense of such action. Within twenty (20) days of notice from Sublandlord, Subtenant will reimburse Sublandlord for all reasonable out-of-pocket costs, expenses, and attorneys’ fees that Sublandlord incurs in attempting to obtain a consent, other than the Landlord’s Consent, from Landlord.Subtenant;
(iii) Sublandlord has, with respect shall have the right during all normal business hours upon reasonable prior notice to Subtenant, all rights, privileges, options, reservations, Subtenant to enter upon and remedies granted or allowed to, or held by, Landlord under inspect the Prime Lease, except to Leased Premises. Without limiting the extent they are inconsistent with, or modified by the provisions of this Sublease, including without limitationforegoing, all rights given to Landlord and its agents and representatives by the Prime Lease to enter and/or inspect the Prime Lease Space, upon reasonable notice Leased Premises shall inure to the benefit of Sublandlord and accompanied by a representative of Subtenant, as provided therein.their respective agents and representatives with respect to the Leased Premises;
(iv) Sublandlord shall also have all other rights, and all privileges, options, reservations and remedies, granted or allowed to, or held by, Landlord under the Prime Lease;
(v) Subtenant will shall maintain insurance of the kinds and in the amounts required to be maintained by Sublandlord under the Prime Lease. All policies of liability insurance maintained by ; and
(vi) Subtenant shall name as additional insureds Landlord, SVN Management, Inc., a California corporation, and Sublandlord and their respective officers, directors, members, managers, or partners, as the case may be, and the respective agents and employees of each of them. In addition, Subtenant will furnish Landlord and Sublandlord with evidence of the insurance coverage in amounts that Landlord or Sublandlord may reasonably require.
(v) Neither Subtenant nor Sublandlord will not do anything or suffer or permit anything to be done that which could result in a default or breach under the Prime Lease or permit the Prime Lease, with the passage of time or the service of notice or both, to be cancelled or terminated (or which could limit or prohibit Sublandlord from exercising any option or right of renewal, first negotiation, first refusal or right of expansion under the Prime Lease).
(b) In addition to the other covenants and obligations under this Sublease and the Prime Lease as incorporated herein, and without limitation of the foregoing, Sublandlord agrees as follows, subject in each case to the due and punctual performance and observance of all covenants and obligations of Subtenant hereunder:
(i) Sublandlord shall not do anything which could reasonably be expected to result in a default under the Prime Lease or permit Landlord Lease; provided, however, that Sublandlord shall not be in default of this covenant to cancel the Prime Lease. Sublandlord agrees to hereinafter duly perform all of extent the terms, covenants and conditions on Sublandlord’s part to be performed as tenant default under the Prime Lease except for those of same which have been undertaken is caused or attributable (in whole or in part) by Subtenant pursuant to the terms of this SubleaseSubtenant, including without limitation Sublandlord’s obligation to pay Base Rent its shareholders, partners, members, directors, officers, employees, agents, customers or invitees.
(as defined in the Prime Leaseii) as tenant under the Prime Lease. Sublandlord agrees that it shall not voluntarily surrenderamend, assign (which assignment may only be made subject to this Sublease) modify or enter into any amendment of terminate the Prime Lease, during the Term hereof, without obtaining the prior written consent of Subtenant.
(c) Sublandlord represents and warrants to Subtenant that:
(i) the Prime Lease is , which may be withheld in full force and effect as of the date hereof, and has not been modified or amended as of that date and the copy attached hereto as Exhibit A is a complete copy of the Prime Lease and First Amendment to Lease;
(ii) Sublandlord is not now in default under any provision of the Prime Lease;
(iii) as of the Effective Date, no notice has been received of a default by Sublandlord under the terms of the Prime Lease; and
(iv) to the best of Sublandlord’s actual knowledge, Landlord is not, as of the date hereof, in default in the performance or observance of its obligations under the Prime Lease.
(d) Despite anything contained in this Sublease or in the Prime Lease to the contrary, Sublandlord and Subtenant agree that:
(i) Rent will not ▇▇▇▇▇ by reason of any damage to or destruction of the Premises unless, and then only sole discretion to the extent that, rent and other payments actually ▇▇▇▇▇ under the Prime Lease with respect to the Premises.
(ii) Subtenant is not entitled to any portion of the proceeds of any award for a condemnation or other taking, or a conveyance in lieu of a condemnation or taking, of all or any portion of the Building, the Prime Lease Space, or the Premises, but Subtenant may pursue a separate action against the applicable governmental authority for an award with respect to the taking of any of same could increase Subtenant’s trade fixtures liabilities or other removable property or to Subtenant’s costs and expenses of relocation as a result of the condemnation or other takingobligations under this Sublease.
(iii) except as expressly set forth in If any action to be taken by Subtenant or any other matter would require the consent or approval of Sublandlord under this Sublease, Subtenant is but not entitled to exercise or have Sublandlord exercise any option Landlord under the Prime Lease, includingSublandlord’s consent or approval shall not be unreasonably withheld, without limitation, conditioned or delayed. If any option action to terminate be taken by Subtenant or extend any other matter would require the term of the Prime Lease consent or lease additional space.
(iv) If the terms of the Prime Lease conflict with the terms of this Sublease, the terms of this Sublease control as between Sublandlord and Subtenant.
(e) Sublandlord does not assume the obligations or liabilities of Landlord under the Prime Lease and is not making the representations or warranties, if any, made by Landlord in the Prime Lease. With respect to work, services, repairs, and restoration or the performance of other obligations required approval of Landlord under the Prime Lease, Sublandlord’ sole obligation is (i) Sublandlord shall be deemed to have consented to or approved such request if Landlord consents to or approves the same, upon written request from Subtenant, and to use reasonable efforts to obtain the same from Landlord. All reasonable out-of-pocket costs and expenses, including, without limitation, attorneys’ fees, incurred by (ii) Sublandlord in attempting to enforce Landlord’s obligations and liabilities under the Prime Lease as aforesaid shall be reimbursed by Subtenant within twenty (20) days of notice from Sublandlord, and shall be deemed Rent due and payable under this Sublease. not to have consented to or approved such request if Landlord does not consent to or approve the same.
(iv) Sublandlord shall not be liable in damages for assign, mortgage, pledge, hypothecate or on account otherwise transfer or permit the transfer of this Sublease or any failure by Landlord to perform the obligations and duties imposed on it under the Prime Lease.
(f) Nothing contained interest in this Sublease shall Sublease, whether voluntarily, by operation of law or otherwise (including a merger or transfer of voting control in Sublandlord), in each case without the prior written consent of Subtenant, which may be construed to create privity of estate or contract between Subtenant and Landlordwithheld in its sole discretion.
Appears in 1 contract
The Prime Lease. (a) Sublandlord does hereby represent, warrant and agree to and with Subtenant that:
(i) the Prime Lease is valid, subsisting, arid in full force and effect;
(ii) rental payments under the Prime Lease have been paid in full through and including April 30, 1999;
(iii) the Prime Lease has not been altered, amended or modified in any manner or respect whatsoever, except as specified in the Recitals herein;
(iv) Sublandlord's interest in the Prime Lease is free and clear of all liens, restrictions, security interest, and other encumbrances of any kind or nature whatsoever,
(v) There are no claims or threatened claims outstanding against Sublandlord that arose in connection with the use of the Premises by Sublandlord, its employees, or agents and neither Sublandlord nor any of its employees or agents has taken any action or made any omission that would give rise to any such claim; and
(vi) To the best of Subtenant's knowledge, no event has occurred which, with the giving of notice or passage of time, or both, would constitute a default or event of default trader the Lease.
(b) This Sublease and all rights of Subtenant under this Sublease hereunder and with respect to the Premises are subject to the terms, conditions, conditions and provisions of the Prime Lease, except for the provisions of the Prime Lease except as they conflict directly with this Sublease or are deemed not applicable to this Sublease pursuant to this Section 10(a). Subtenant hereby assumes and agrees to perform faithfully and be bound by, with respect to the Premises, all of Sublandlord’s 's obligations, covenants, agreements, agreements and liabilities under the Prime Lease and all terms, conditions, provisions, provisions and restrictions contained in the Prime Lease, Lease except to the extent set forth in the preceding sentence, and except:
(i) for the payment of Base Rent (each as defined or used in the Prime Lease);
(ii) that, except as set forth in Section 9(a) above, neither Sublandlord nor Subtenant needs to construct or install tenant improvements;
(iii) that none of the any provisions in the Prime Lease allowing alarming or purporting to allow any rights or options of lease expansion, reduction, cancellation, or extension, or Sublandlord any rent concessions or abatements or construction allowances, apply to this Sublease; and
(iv) Subtenant has a period of time equal to the period of time that the tenant under the Prime Lease has to respond to or otherwise cure any notices given by Landlord under the Prime Lease, less two (2) days.
(bc) Without limitation of the foregoing:
(i) Except with respect to the Future Alterations described in Section 9(e) aboveWithout Sublandlord's prior written consent which shall not be unreasonably withheld or delayed, Subtenant will shall not make any changes, alterations, alterations or additions in or to the Premises, Premises except as permitted under the Prime Lease and subject to Sublandlord’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed.otherwise expressly provided herein;
(ii) If Subtenant desires to take any action, other action and the Prime Lease requires would require that Sublandlord to obtain the consent of Landlord before undertaking that type any action of actionthe same kind, Subtenant will shall not undertake the action same without the prior written consent of Sublandlord, which consent shall not be unreasonably withheld or delayed. Sublandlord may condition its consent on the consent of Landlord being obtained and may require that Subtenant to contact Landlord directly for its consent and that Subtenant take all other steps needed to assure that Sublandlord will have no additional obligations to Landlord under the Prime Lease as a result of such action. Within twenty (20) days of notice from Sublandlord, Subtenant will reimburse Sublandlord for all reasonable out-of-pocket costs, expenses, and attorneys’ fees that Sublandlord incurs in attempting to obtain a consent, other than the Landlord’s Consent, from Landlord.;
(iii) Sublandlord has, with respect to Subtenant, all rights, privileges, options, reservations, and remedies granted or allowed to, or held by, Landlord under the Prime Lease, except to the extent they are inconsistent with, or modified by the provisions of this Sublease, including without limitation, all All rights given to Landlord and its agents and representatives by the Prime Lease to enter the premises covered by the Prime Lease Space, upon reasonable notice shall inure to the benefit of Sublandlord and accompanied by a representative of Subtenant, as provided therein.their respective agents and representatives with respect to the Premises;
(iv) Sublandlord shall also have all other rights, and all privileged, options, reservations and remedies, granted or allowed to, or held by, Landlord under the Prime Lease;
(v) Subtenant will shall maintain insurance of the kinds and in the amounts required to be maintained by Sublandlord under the Prime Lease. All policies of liability insurance maintained by Subtenant shall name as additional insureds Landlord, SVN Management, Inc., a California corporation, and the Landlord arid Sublandlord and their respective officersoffices, directors, members, managers, directors or partners, as the case may be, and the respective agents and employees of each of them. In addition, Subtenant will furnish Landlord and Sublandlord with evidence of the insurance coverage in amounts that Landlord or Sublandlord may reasonably require.; and
(vvi) Neither Subtenant nor Sublandlord will shall not do anything or suffer or permit anything to be done that which could result in a default under the Prime Lease or permit Landlord to cancel the Prime Lease. Sublandlord agrees to hereinafter duly perform all of the terms, covenants and conditions on Sublandlord’s part to be performed as tenant under the Prime Lease except for those of same which have been undertaken by Subtenant pursuant to the terms of this Sublease, including without limitation Sublandlord’s obligation to pay Base Rent (as defined in the Prime Lease) as tenant under the Prime Lease. Sublandlord agrees that it shall not voluntarily surrender, assign (which assignment may only be made subject to this Sublease) cancelled or enter into any amendment of the Prime Lease, during the Term hereof, without obtaining the prior written consent of Subtenant.
(c) Sublandlord represents and warrants to Subtenant that:
(i) the Prime Lease is in full force and effect as of the date hereof, and has not been modified or amended as of that date and the copy attached hereto as Exhibit A is a complete copy of the Prime Lease and First Amendment to Lease;
(ii) Sublandlord is not now in default under any provision of the Prime Lease;
(iii) as of the Effective Date, no notice has been received of a default by Sublandlord under the terms of the Prime Lease; and
(iv) to the best of Sublandlord’s actual knowledge, Landlord is not, as of the date hereof, in default in the performance or observance of its obligations under the Prime Leaseterminated.
(d) Despite Notwithstanding anything contained in this Sublease herein or in the Prime Lease which may appear to be to the contrary, Sublandlord and Subtenant hereby agree thatas follows:
(i) Rent will Without Sublandlord's prior written consent, which consent shall not ▇▇▇▇▇ by reason be unreasonably withheld or delayed, Subtenant shall not assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of any damage to or destruction of the Premises unless, and then only to the extent that, rent and other payments actually ▇▇▇▇▇ under the Prime Lease with respect to the Premises.
(ii) Subtenant is not entitled to any portion of the proceeds of any award for a condemnation or other taking, or a conveyance in lieu of a condemnation or taking, of all this Sublease or any portion interest of the Building, the Prime Lease Space, or the Premises, but Subtenant may pursue a separate action against the applicable governmental authority for an award with respect to the taking of any of Subtenant’s trade fixtures or other removable property or to Subtenant’s costs and expenses of relocation as a result of the condemnation or other taking.
(iii) except as expressly set forth in this Sublease, Subtenant is not entitled to exercise by operation of law or have Sublandlord exercise any option under otherwise, or permit the Prime Lease, including, without limitation, any option to terminate or extend the term use of the Prime Lease Premises or lease additional space.
(iv) If the terms of the Prime Lease conflict with the terms of this Sublease, the terms of this Sublease control as between any part thereof by any persons other than Sublandlord and Subtenant.
Sublandlord's employees (epursuant to Paragraph 7 herein) Sublandlord does not assume the obligations or liabilities of Landlord under the Prime Lease and is not making the representations or warranties, if any, made by Landlord in the Prime Lease. With respect to work, services, repairs, and restoration or the performance of other obligations required of Landlord under the Prime Lease, Sublandlord’ sole obligation is to request the same, upon written request from Subtenant, and to use reasonable efforts to obtain the same from Landlord. All reasonable out-of-pocket costs and expenses, including, without limitation, attorneys’ fees, incurred by Sublandlord in attempting to enforce Landlord’s obligations and liabilities under the Prime Lease as aforesaid shall be reimbursed by Subtenant within twenty (20) days of notice from Sublandlord, and shall be deemed Rent due and payable under this Sublease. Sublandlord shall not be liable in damages for or on account of any failure by Landlord to perform the obligations and duties imposed on it under the Prime Lease.
(f) Nothing contained in this Sublease shall be construed to create privity of estate or contract between Subtenant and Landlord.Subtenant's employees, or sublet the Premises or any part thereof;
Appears in 1 contract
Sources: Sublease (Planetrx Com)
The Prime Lease. (a) This Sublease and all rights of Subtenant under this Sublease hereunder and with respect to the Subleased Premises are subject and subordinate to the terms, conditions, conditions and provisions of the Prime Lease, except for the provisions of the Prime Lease except as they conflict directly with this Sublease or are deemed not applicable to this Sublease pursuant to this Section 10(a). Subtenant hereby assumes and agrees to perform faithfully and be bound by, with respect to the Subleased Premises, all of Sublandlord’s obligations, covenants, agreements, agreements and liabilities under the Prime Lease and all terms, conditions, provisions, provisions and restrictions contained in the Prime Lease, except to the extent set forth in the preceding sentence, and Lease except:
(i) for the payment of Base Rent (each rent in amounts other than as defined or used set forth in the Prime Lease)this Sublease;
(ii) that, except as set forth in Section 9(a) above, neither Sublandlord nor that Subtenant needs shall not have any obligation or right to construct or install tenant improvements;leasehold improvements except as may be expressly provided herein; and
(iii) that none the following provisions of the Prime Lease do not apply to this Sublease: any provisions in the Prime Lease allowing or purporting to allow any rights or options of lease expansion, reduction, cancellation, or extension, or Sublandlord any rent concessions or abatements or construction allowances, apply to this Sublease; and
(iv) Subtenant has a period allowances and any provisions of time equal to the period of time that the tenant under the Prime Lease has to respond to granting Sublandlord any expansion options, renewal options, termination options, or otherwise cure any notices given by Landlord under the Prime Lease, less two (2) daysrights of first offer or first refusal.
(b) Without limitation of the foregoing:
(i) Except with respect to the Future Alterations described in Section 9(e) above, Subtenant will shall not make any changes, alterations, alterations or additions in or to the Premises, Subleased Premises except as permitted under the Prime Lease and subject to Sublandlord’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed.otherwise expressly provided herein;
(ii) If Subtenant desires to take any action, other action and the Prime Lease requires would require that Sublandlord to obtain the consent of Landlord before undertaking that type any action of actionthe same kind, Subtenant will shall not undertake the action same without the prior written consent of Sublandlord. Sublandlord may condition its consent on the consent of Landlord being obtained and may require that Subtenant to contact Landlord directly for its consent and that Subtenant take all other steps needed to assure that Sublandlord will have no additional obligations to Landlord under the Prime Lease as a result of such action. Within twenty (20) days of notice from Sublandlord, Subtenant will reimburse Sublandlord for all reasonable out-of-pocket costs, expenses, and attorneys’ fees that Sublandlord incurs in attempting to obtain a consent, other than the Landlord’s Consent, from Landlord.;
(iii) Sublandlord has, with respect to Subtenant, all rights, privileges, options, reservations, and remedies granted or allowed to, or held by, Landlord under the Prime Lease, except to the extent they are inconsistent with, or modified by the provisions of this Sublease, including without limitation, all All rights given to Landlord and its agents and representatives by the Prime Lease to enter the Prime Lease Space, upon reasonable notice Master Premises shall inure to the benefit of Sublandlord and accompanied by a representative of Subtenant, as provided therein.its agents and representatives with respect to the Subleased Premises;
(iv) Sublandlord shall also have all other rights, privileges, options, reservations and remedies granted or allowed to or held by Landlord under the Prime Lease;
(v) Subtenant will shall maintain insurance of the kinds and in the amounts required to be maintained by Sublandlord under the Prime Lease. All policies of liability insurance maintained by Subtenant shall name as additional insureds Landlord, SVN Management, Inc., a California corporation, Landlord and Sublandlord and their respective officers, directors, members, managers, directors or partners, as the case may be, and the respective agents and employees of each of them. In additionAll policies of insurance maintained by Subtenant in connection with this Sublease or the Subleased Premises be written as primary policy coverage and not contributing to or in excess of any coverage which Landlord and/or Sublandlord may carry. Simultaneously with the execution of this Sublease and thereafter not later than thirty (30) days before any scheduled date of expiration of such insurance, Subtenant will shall furnish Landlord and Sublandlord with evidence certificates of insurance evidencing that Subtenant is carrying the insurance coverage in amounts that Landlord or Sublandlord may reasonably require.required to be carried by Subtenant hereunder; and
(vvi) Neither Subtenant nor Sublandlord will shall not do anything or suffer or permit anything to be done that which could result in a default under the Prime Lease or permit Landlord to cancel the Prime Lease. Sublandlord agrees to hereinafter duly perform all of the terms, covenants and conditions on Sublandlord’s part to be performed as tenant under the Prime Lease except for those of same which have been undertaken by Subtenant pursuant to the terms of this Sublease, including without limitation Sublandlord’s obligation to pay Base Rent (as defined in the Prime Lease) as tenant under the Prime Lease. Sublandlord agrees that it shall not voluntarily surrender, assign (which assignment may only be made subject to this Sublease) cancelled or enter into any amendment of the Prime Lease, during the Term hereof, without obtaining the prior written consent of Subtenantterminated.
(c) Sublandlord represents and warrants to Subtenant that:
(i) the Prime Lease is in full force and effect as of the date hereof, and has not been modified or amended as of that date and the copy attached hereto as Exhibit A is a complete copy of the Prime Lease and First Amendment to Lease;
(ii) Sublandlord is not now in default under any provision of the Prime Lease;
(iii) as of the Effective Date, no notice has been received of a default by Sublandlord under the terms of the Prime Lease; and
(iv) to the best of Sublandlord’s actual knowledge, Landlord is not, as of the date hereof, in default in the performance or observance of its obligations under the Prime Lease.
(d) Despite Notwithstanding anything contained in this Sublease herein or in the Prime Lease that may appear to be to the contrary, Sublandlord and Subtenant hereby agree thatas follows:
(i) Rent will Subtenant shall not assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Sublease or any interest of Subtenant in this Sublease, by operation of law or otherwise, or permit the use of the Subleased Premises or any part thereof by any persons other than Subtenant and Subtenant’s employees, or sublet the Subleased Premises or any part thereof, without the prior written consent of Landlord and Sublandlord (which consent of Sublandlord shall not be unreasonably withheld, conditioned or delayed);
(ii) Neither rental nor other payments hereunder shall ▇▇▇▇▇ by reason of any damage to or destruction of the Subleased Premises, the Master Premises or the Building or any part thereof, unless, and then only to the extent that, rent rental and such other payments actually ▇▇▇▇▇ under the Prime Lease with respect to the Premises.Subleased Premises on account of such event;
(iiiii) Subtenant is shall not entitled have any right to any portion of the proceeds of any award for a condemnation or other taking, or a conveyance in lieu of a condemnation or takingthereof, of all or any portion of the Building, the Prime Lease Space, Master Premises or the Subleased Premises, but Subtenant may pursue a separate action against the applicable governmental authority for an award with respect to the taking of any of Subtenant’s trade fixtures or other removable property or to Subtenant’s costs and expenses of relocation as a result of the condemnation or other taking.;
(iiiiv) except as expressly set forth in this Sublease, Subtenant is shall not entitled have any right to exercise or have Sublandlord exercise any option under the Prime Lease, including, without limitation, any option to terminate or extend the term of the Prime Lease or lease additional space.; and
(ivv) If Subject to Section 6(a) above, as between Sublandlord and Subtenant, in the terms event of any conflict between the terms, conditions and provisions of the Prime Lease conflict with the terms and of this Sublease, the terms terms, conditions and provisions of this Sublease control as between Sublandlord shall, in all instances, govern and Subtenantcontrol.
(ed) It is expressly understood and agreed that Sublandlord does not assume and shall not have any of the obligations or liabilities of Landlord under the Prime Lease and that Sublandlord is not making the representations or warranties, if any, made by Landlord in the Prime Lease. With respect to work, services, repairs, repairs and restoration or the performance of other obligations required of Landlord under the Prime Lease, Sublandlord’ ’s sole obligation is with respect thereto shall be to promptly request the same, upon written request from Subtenant, and to use reasonable efforts to obtain the same from Landlord. All reasonable out-of-pocket costs and expenses, including, without limitation, attorneys’ fees, incurred by Sublandlord in attempting at no expense to enforce Landlord’s obligations and liabilities under the Prime Lease as aforesaid shall be reimbursed by Subtenant within twenty (20) days of notice from Sublandlord, and shall be deemed Rent due and payable under this Sublease. Sublandlord shall not be liable in damages damages, nor shall rent ▇▇▇▇▇ hereunder, for or on account of any failure by Landlord to perform the obligations and duties imposed on it under the Prime Lease.
(fe) Nothing contained in this Sublease shall be construed to create privity of estate or contract between Subtenant and Landlord, except the agreements of Subtenant in Sections 10 and 11 hereof in favor of Landlord, and then only to the extent of the same.
Appears in 1 contract
Sources: Sublease (Capitalsource Inc)
The Prime Lease. (a) This Sublease and all rights of Subtenant under this Sublease hereunder and with respect to the Premises are subject to the terms, conditions, conditions and provisions of the Prime Lease, except for the provisions of the Prime Lease except as they conflict directly with this Sublease or are deemed not applicable to this Sublease pursuant to this Section 10(a). Subtenant hereby assumes and agrees to perform faithfully and be bound by, with respect to the Premises, all of Sublandlord’s obligations, covenants, agreements, agreements and liabilities under the Prime Lease and all terms, conditions, provisions, provisions and restrictions contained in the Prime Lease, except to the extent set forth in the preceding sentence, and Lease except:
(i) for the payment of “Base Rent Rent” (each as such term is defined or used in the Prime Lease);
(ii) that, except as set forth in Section 9(a) above, neither Sublandlord nor that Subtenant needs shall not have any obligations to construct or install tenant improvements;improvements except as may be provided herein; and
(iii) that none the following provisions of the Prime Lease do not apply to this Sublease: any provisions in the Prime Lease allowing or purporting to allow any rights or options of lease expansion, reduction, cancellation, or extension, or Sublandlord any rent concessions or abatements or construction or refurbishment allowances, apply any provisions allowing Sublandlord to this Sublease; and
(iv) Subtenant has a period extend or renew the term of time equal to the period of time that the tenant under the Prime Lease has (including, without limitation, Section 30 of the Prime Lease), any provisions of the Prime Lease granting any option to respond to purchase or otherwise cure lease the Building or any notices given by Landlord under other space in the Building or Project (including, without limitation, Section 39 of the Prime Lease), Section 17.E. of the Prime Lease, less two (2) daysSection 26.J. of the Prime Lease, Section 28.H. of the Prime Lease, and Section 36 of the Prime Lease.
(b) Without limitation of the foregoing:
(i) Except with respect to the Future Alterations described in Section 9(e) above, Subtenant will shall not make any changes, alterations, alterations or additions in or to the Premises, Premises except as permitted under otherwise expressly provided herein. In connection therewith, Sublandlord and Subtenant acknowledge and agree that Subtenant may desire to make certain alterations, additions and/or improvements to the Premises following its occupancy thereof (hereinafter referred to as the “Subtenant Work”). Such Subtenant Work shall be performed at the sole cost and expense of Subtenant and shall strictly conform to all the terms and provisions of the Prime Lease Lease. Subtenant shall obtain the approval of both the Landlord and subject Sublandlord with respect to Sublandlord’s any and all aspects of the Subtenant Work prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed.to commencing same;
(ii) If Subtenant desires to take any action, other action and the Prime Lease requires would require that Sublandlord to obtain the consent of Landlord before undertaking that type any action of actionthe same kind, Subtenant will shall not undertake the action same without the prior written consent of Sublandlord. Sublandlord may condition its consent on the consent of Landlord being obtained and may require that Subtenant to contact Landlord directly for its consent and that Subtenant take all other steps needed to assure that Sublandlord will have no additional obligations to Landlord under the Prime Lease as a result of such action. Within twenty (20) days of notice from Sublandlord, Subtenant will reimburse Sublandlord for all reasonable out-of-pocket costs, expenses, and attorneys’ fees that Sublandlord incurs in attempting to obtain a consent, other than the Landlord’s Consent, from Landlord.;
(iii) Sublandlord has, with respect to Subtenant, all rights, privileges, options, reservations, and remedies granted or allowed to, or held by, Landlord under the Prime Lease, except to the extent they are inconsistent with, or modified by the provisions of this Sublease, including without limitation, all All rights given to Landlord and its agents and representatives by the Prime Lease to enter the premises covered by the Prime Lease Space, upon reasonable notice shall inure to the benefit of Sublandlord and accompanied by a representative of Subtenant, as provided therein.their respective agents and representatives with respect to the Premises;
(iv) Sublandlord shall also have all other rights, and all privileges, options, reservations and remedies, granted or allowed to, or held by, Landlord under the Prime Lease;
(v) Subtenant will shall maintain insurance of the kinds and in the amounts required to be maintained by Sublandlord under the Prime Lease. All policies of liability insurance maintained by Subtenant shall name as additional insureds Landlord, SVN Management, Inc., a California corporation, the Landlord and Sublandlord and their respective officers, directors, members, managers, directors or partners, as the case may be, and the respective agents and employees of each of them. In addition, Subtenant will furnish Landlord and Sublandlord with evidence of the insurance coverage in amounts that Landlord or Sublandlord may reasonably require.; and
(vvi) Neither Subtenant nor Sublandlord will shall not do anything or suffer or permit anything to be done that which could result in a default under the Prime Lease or permit Landlord to cancel the Prime Lease. Sublandlord agrees to hereinafter duly perform all of the terms, covenants and conditions on Sublandlord’s part to be performed as tenant under the Prime Lease except for those of same which have been undertaken by Subtenant pursuant to the terms of this Sublease, including without limitation Sublandlord’s obligation to pay Base Rent (as defined in the Prime Lease) as tenant under the Prime Lease. Sublandlord agrees that it shall not voluntarily surrender, assign (which assignment may only be made subject to this Sublease) canceled or enter into any amendment of the Prime Lease, during the Term hereof, without obtaining the prior written consent of Subtenantterminated.
(c) Sublandlord represents and warrants to Subtenant that:
(i) the Prime Lease is in full force and effect as of the date hereof, and has not been modified or amended as of that date and the copy attached hereto as Exhibit A is a complete copy of the Prime Lease and First Amendment to Lease;
(ii) Sublandlord is not now in default under any provision of the Prime Lease;
(iii) as of the Effective Date, no notice has been received of a default by Sublandlord under the terms of the Prime Lease; and
(iv) to the best of Sublandlord’s actual knowledge, Landlord is not, as of the date hereof, in default in the performance or observance of its obligations under the Prime Lease.
(d) Despite Notwithstanding anything contained in this Sublease herein or in the Prime Lease which may appear to be to the contrary, Sublandlord and Subtenant hereby agree thatas follows:
(iA) Rent will Subtenant shall not, without the prior written consent of Sublandlord, assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Sublease or any interest of Subtenant in this Sublease, by operation of law or otherwise, or permit the use of the Premises or any part thereof by any persons other than Subtenant and Subtenant’s employees, or sublet the Premises or any part thereof. Sublandlord shall not ▇unreasonably withhold, condition or delay its consent to any such transfer; provided, however, it shall not be unreasonable for Sublandlord to withhold its consent to such transfer if (1) Subtenant is then in default under any of the terms and conditions of this Sublease, (2) the proposed transferee is not sufficiently creditworthy, in Sublandlord’s sole determination, and (3) the proposed transferee is a competitor of Sublandlord or is a governmental agency (the foregoing reasons are not meant to be an exhaustive list of the bases upon which Sublandlord may withhold its consent to such a transfer);
(B) Notwithstanding the foregoing, in no event shall Subtenant be obligated to obtain the consent of Sublandlord in connection with any sub-sublet of all or any portion of the Premises to any entity which is in control of, under common control, or controlled by, Subtenant (any such entity is referred to herein as an “Affiliate”) or an assignment of Subtenant’s interest hereunder to any Affiliate of Subtenant or in connection with the merger, consolidation or reorganization of Subtenant with any other entity or the sale of all or substantially all of Subtenant’s stock or assets provided the following conditions are met: (1) to the extent that the Landlord’s consent under the Prime Lease is required in connection with such a transfer, Subtenant obtains same at its sole cost and expense and provides evidence of same to Sublandlord, (2) Subtenant provides written notice to Sublandlord and Landlord not less than ten (10) business days prior to the effectiveness of such transfer, (3) in the case of a sub-sublet or actual assignment of this Sublease (as opposed to a transfer by operation of law, such as a merger), such sub-subtenant or assignee enters into an agreement in form and content reasonably satisfactory to Sublandlord assuming all of the obligations of the Subtenant hereunder, whether accruing prior to or after the effectiveness of the transfer, (4) there is no release of the Subtenant in connection with any such transfer, (5) the net worth of the Subtenant entity which is liable for the terms and provisions of this Sublease immediately following such transfer is satisfactory to Sublandlord, and (6) no default has occurred under this Sublease beyond applicable notice and cure periods (the transfers noted in this clause (B) are referred to herein as “Permitted Transfers”);
(C) Further, other than in connection with any Permitted Transfers, in the event of any assignment of this Sublease or sub-sublease of the Premises by Subtenant, Subtenant shall pay to Sublandlord fifty percent (50%) of any consideration received by Subtenant for such assignment or sub-sublease, as the case may be, in excess of the rent payable under this Sublease and the reasonable actual out-of-pocket cost incurred by Subtenant solely for brokerage commissions, legal fees and any costs of alterations necessary to effect such transfer, such payment to be provided to Sublandlord no later than thirty (30) days after the determination thereof and the date such excess rent is received by Subtenant;
(ii) neither rental nor other payments hereunder shall a▇▇▇▇ by reason of any damage to or destruction of the Premises Premises, the premises subject to the Prime Lease, or the Building or any part thereof, unless, and then only to the extent that, rent rental and such other payments actually ▇a▇▇▇▇ under the Prime Lease with respect to the Premises.Premises on account of such event;
(iiiii) notwithstanding clause (c)(ii) above, in the event that Sublandlord receives an abatement of rent due under the Prime Lease pursuant to the provisions of Section 4.F. thereof, then Subtenant shall be entitled the same abatement of rent under this Sublease;
(iv) Subtenant is shall not entitled have any right to any portion of the proceeds of any award for a condemnation or other taking, or a conveyance in lieu of a condemnation or takingthereof, of all or any portion of the Building, Premises;
(v) If the Prime Lease Space, gives Sublandlord any right to terminate the Prime Lease in the event of any casualty or condemnation of the Premises, but so long as (1) Subtenant may pursue a separate action against is not in default under this Sublease beyond applicable notice and cure periods, and (2) such right to so terminate the applicable governmental authority for an award with respect Prime Lease is then effective and applicable, Subtenant shall be entitled to the taking same right to so terminate this Sublease as afforded to Sublandlord under the Prime Lease except that Subtenant shall be required to give notice to Sublandlord of any such election to so terminate this Sublease with sufficient time so as to provide Sublandlord with not less than ten (10) business days following Sublandlord’s receipt of such written notice of Subtenant’s election to so terminate this Sublease to permit Sublandlord to elect to terminate the Prime Lease pursuant to the terms and conditions of the Prime Lease;
(vi) Notwithstanding anything contained in Section 22.J. of the Prime Lease, following a written request from Subtenant, Sublandlord shall subordinate any statutory or contractual lien and security interest it may have on Subtenant’s equipment, furniture, moveable trade fixtures or other removable personal property owned by Subtenant and kept at the Premises to the lien of any bona fide vendor or institutional lender providing financing for Subtenant to Subtenant’s costs and expenses of relocation as a result of the condemnation acquire such equipment, furniture, moveable trade fixtures or other taking.personal property, such subordination to be pursuant to an instrument which is reasonably satisfactory to Sublandlord;
(iiivii) except as expressly set forth in this Sublease, Subtenant is shall not entitled have any right to exercise or have Sublandlord exercise any option under the Prime Lease, including, without limitation, any option to terminate or extend the term of the Prime Lease or lease additional space.; and
(ivviii) If In the terms event of any conflict between the terms, conditions and provisions of the Prime Lease conflict with the terms and of this Sublease, the terms terms, conditions and provisions of this Sublease control as between Sublandlord shall, in all instances, govern and Subtenantcontrol.
(ed) It is expressly understood and agreed that Sublandlord does not assume and shall not have any of the obligations or liabilities of Landlord under the Prime Lease and that Sublandlord is not making the representations representations, warranties or warrantiesindemnifications, if any, made by Landlord in the Prime Lease. With respect to work, services, repairs, repairs and restoration or the performance of other obligations required of Landlord under the Prime Lease, Sublandlord’ ’s sole obligation is with respect thereto shall be to request the same, upon written request from Subtenant, and to use reasonable efforts efforts, at Subtenant’s sole cost and expense, to obtain the same from Landlord. All reasonable out-of-pocket costs and expenses, including, without limitation, attorneys’ fees, incurred by Sublandlord in attempting to enforce Landlord’s obligations and liabilities under the Prime Lease as aforesaid shall be reimbursed by Subtenant within twenty (20) days of notice from Sublandlord, and shall be deemed Rent due and payable under this Sublease. Sublandlord shall not be liable in damages damages, nor shall rent a▇▇▇▇ hereunder, for or on account of any failure by Landlord to perform the obligations and duties imposed on it under the Prime Lease. Sublandlord and Subtenant acknowledge and agree that any repair, maintenance and/or replacement obligations with respect to the Premises which are the responsibility of the Sublandlord, as tenant under the Prime Lease, shall be performed by Subtenant at Subtenant’s sole cost and expense. In the event that a condition exists in the Premises that Landlord is obligated to repair under the terms of the Prime Lease, Subtenant shall so advise Sublandlord, and Sublandlord, in turn, shall promptly advise Landlord thereof. At Subtenant’s request, in the event that Landlord fails to fulfill any repair or maintenance obligation under the terms of the Prime Lease with respect to the Premises, Sublandlord shall use its good faith, due diligent and commercially reasonable efforts to have Landlord fulfill such repair and maintenance obligations, all of which reasonable efforts shall at be Subtenant’s sole cost and expense. All such amounts which are payable by Subtenant hereunder shall be deemed additional rent due under this Sublease. Sublandlord and Subtenant acknowledge and agree that the provisions of Section 26.J. of the Prime Lease provide the “Tenant” under the Prime Lease certain self-help and offset rights under the Prime Lease in the event of a default thereunder by the Landlord. In connection therewith, in the event of such a default by the Landlord under the Prime Lease, upon written request by Subtenant, Sublandlord shall be entitled (but shall have no obligation) to take such steps as are reasonably necessary and permitted under the Prime Lease to effect such self-help and offset rights under the Prime Lease. Subtenant hereby covenants and agrees that it shall be responsible to reimburse to Sublandlord any and all of the costs and expenses incurred by Sublandlord in effecting such cure, to the extent same are not offset against the rent owed by Sublandlord under the Prime Lease. Such amounts shall be deemed additional rent due and owing under this Sublease. Alternatively, Sublandlord may elect to have Subtenant perform such self-help rights under the Prime Lease upon the following terms and conditions: (i) such rights are exercised by Subtenant at its sole cost and expense, (ii) Subtenant obtains the prior written approval by Sublandlord of the acts to be taken by Subtenant with respect to such self-help rights and (iii) Subtenant performs such self-help rights in strict accordance with the terms and provisions of the Prime Lease. In the event that Subtenant performs such self-help acts in accordance with the foregoing terms and provisions and as a result thereof, Sublandlord receives an offset of the rent due under the Prime Lease, then Subtenant shall receive the same offset against the rent due under this Sublease.
(fe) Nothing contained in this Sublease shall be construed to create privity of estate or contract between Subtenant and Landlord, except the agreements of Subtenant in Sections 10 and 11 hereof in favor of Landlord, and then only to the extent of the same.
(f) Sublandlord hereby represents and warrants as to the following: (i) as of the date of Sublandlord’s execution of this Sublease, Sublandlord has received no notice of default under the Prime Lease from Landlord, (ii) as of the date of Sublandlord’s execution of this Sublease, Sublandlord has not forwarded any notice of default to Landlord under the Prime Lease which has not been cured, and (iii) as of the date of Sublandlord’s execution of this Sublease, to Sublandlord’s actual knowledge (with no investigation or inquiry), Sublandlord has received no notice that the Premises is not in compliance with applicable laws, codes, rules and/or regulations of applicable governing authorities.
(g) Subject to the terms and provisions of the Prime Lease and this Sublease, so long as Subtenant shall perform all of its obligations under this Sublease, Subtenant shall enjoy peaceful and quiet possession of the Premises in accordance with the terms and provisions of this Sublease against any party claiming through or under Sublandlord. In addition to the foregoing, Sublandlord hereby covenants and agrees that it shall not enter into any modification or amendment to the Prime Lease which materially and adversely affect Subtenant’s rights under this Sublease.
Appears in 1 contract
Sources: Sublease (Costar Group Inc)
The Prime Lease. (a) This Sublease and all rights of Subtenant under this Sublease hereunder and with respect to the Subleased Premises are subject and subordinate to the terms, conditions, conditions and provisions of the Prime Lease, except for the provisions of the Prime Lease except as they conflict directly with this Sublease or are deemed not applicable to this Sublease pursuant to this Section 10(a). Subtenant hereby assumes and agrees to perform faithfully and be bound by, with respect to the Subleased Premises, all of Sublandlord’s obligations, covenants, agreements, agreements and liabilities under the Prime Lease and all terms, conditions, provisions, provisions and restrictions contained in the Prime Lease, except to the extent set forth in the preceding sentence, and Lease except:
(i) for the payment of Base Rent (each rent in amounts other than as defined or used set forth in the Prime Lease)this Sublease;
(ii) that, except as set forth in Section 9(a) above, neither Sublandlord nor that Subtenant needs shall not have any obligation or right to construct or install tenant improvements;leasehold improvements except as may be expressly provided herein; and
(iii) that none the following provisions of the Prime Lease do not apply to this Sublease: any provisions in the Prime Lease allowing or purporting to allow any rights or options of lease expansion, reduction, cancellation, or extension, or Sublandlord any rent concessions or abatements or construction allowances, apply to this Sublease; and
(iv) Subtenant has a period allowances and any provisions of time equal to the period of time that the tenant under the Prime Lease has to respond to granting Sublandlord any expansion options, renewal options, termination options, or otherwise cure any notices given by Landlord under the Prime Lease, less two (2) daysrights of first offer or first refusal.
(b) Without limitation of the foregoing:
(i) Except with respect to the Future Alterations described in Section 9(e) above, Subtenant will shall not make any changes, alterations, alterations or additions in or to the Premises, Subleased Premises except as permitted under the Prime Lease and subject to Sublandlord’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed.otherwise expressly provided herein;
(ii) If Subtenant desires to take any action, other action and the Prime Lease requires would require that Sublandlord to obtain the consent of Landlord before undertaking that type any action of actionthe same kind, Subtenant will shall not undertake the action same without the prior written consent of Sublandlord. Sublandlord may condition its consent on the consent of Landlord being obtained and may require that Subtenant to contact Landlord directly for its consent and that Subtenant take all other steps needed to assure that Sublandlord will have no additional obligations to Landlord under the Prime Lease as a result of such action. Within twenty (20) days of notice from Sublandlord, Subtenant will reimburse Sublandlord for all reasonable out-of-pocket costs, expenses, and attorneys’ fees that Sublandlord incurs in attempting to obtain a consent, other than the Landlord’s Consent, from Landlord.;
(iii) Sublandlord has, with respect to Subtenant, all rights, privileges, options, reservations, and remedies granted or allowed to, or held by, Landlord under the Prime Lease, except to the extent they are inconsistent with, or modified by the provisions of this Sublease, including without limitation, all All rights given to Landlord and its agents and representatives by the Prime Lease to enter the Prime Lease Space, upon reasonable notice Master Premises shall inure to the benefit of Sublandlord and accompanied by a representative of Subtenant, as provided therein.its agents and representatives with respect to the Subleased Premises;
(iv) Sublandlord shall also have all other rights, privileges, options, reservations and remedies granted or allowed to or held by Landlord under the Prime Lease;
(v) Subtenant will shall maintain insurance of the kinds and in the amounts required to be maintained by Sublandlord under the Prime Lease. All policies of liability insurance maintained by Subtenant shall name as additional insureds Landlord, SVN Management, Inc., a California corporation, Landlord and Sublandlord and their respective officers, directors, members, managers, directors or partners, as the case may be, and the respective agents and employees of each of them. In additionAll policies of insurance maintained by Subtenant in connection with this Sublease or the Subleased Premises be written as primary policy coverage and not contributing to or in excess of any coverage which Landlord and/or Sublandlord may carry. Simultaneously with the execution of this Sublease and thereafter not later than thirty (30) days before any scheduled date of expiration of such insurance, Subtenant will shall furnish Landlord and Sublandlord with evidence certificates of insurance evidencing that Subtenant is carrying the insurance coverage in amounts that Landlord or Sublandlord may reasonably require.required to be carried by Subtenant hereunder; and
(vvi) Neither Subtenant nor Sublandlord will shall not do anything or suffer or permit anything to be done that which could result in a default under the Prime Lease or permit Landlord to cancel the Prime Lease. Sublandlord agrees to hereinafter duly perform all of the terms, covenants and conditions on Sublandlord’s part to be performed as tenant under the Prime Lease except for those of same which have been undertaken by Subtenant pursuant to the terms of this Sublease, including without limitation Sublandlord’s obligation to pay Base Rent (as defined in the Prime Lease) as tenant under the Prime Lease. Sublandlord agrees that it shall not voluntarily surrender, assign (which assignment may only be made subject to this Sublease) cancelled or enter into any amendment of the Prime Lease, during the Term hereof, without obtaining the prior written consent of Subtenantterminated.
(c) Sublandlord represents and warrants to Subtenant that:
(i) the Prime Lease is in full force and effect as of the date hereof, and has not been modified or amended as of that date and the copy attached hereto as Exhibit A is a complete copy of the Prime Lease and First Amendment to Lease;
(ii) Sublandlord is not now in default under any provision of the Prime Lease;
(iii) as of the Effective Date, no notice has been received of a default by Sublandlord under the terms of the Prime Lease; and
(iv) to the best of Sublandlord’s actual knowledge, Landlord is not, as of the date hereof, in default in the performance or observance of its obligations under the Prime Lease.
(d) Despite Notwithstanding anything contained in this Sublease herein or in the Prime Lease that may appear to be to the contrary, Sublandlord and Subtenant hereby agree thatas follows:
(i) Rent will Subtenant shall not assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Sublease or any interest of Subtenant in this Sublease, by operation of law or otherwise, or permit the use of the Subleased Premises or any part thereof by any persons other than Subtenant and Subtenant’s employees, or sublet the Subleased Premises or any part thereof, without the prior written consent of Prime Landlord and Sublandlord (which consent of Sublandlord shall not be unreasonably withheld, conditioned or delayed);
(ii) Neither rental nor other payments hereunder shall ▇▇▇▇▇ by reason of any damage to or destruction of the Subleased Premises, the Master Premises or the Building or any part thereof, unless, and then only to the extent that, rent rental and such other payments actually ▇▇▇▇▇ under the Prime Lease with respect to the Premises.Subleased Premises on account of such event;
(iiiii) Subtenant is shall not entitled have any right to any portion of the proceeds of any award for a condemnation or other taking, or a conveyance in lieu of a condemnation or takingthereof, of all or any portion of the Building, the Prime Lease Space, Master Premises or the Subleased Premises, but Subtenant may pursue a separate action against the applicable governmental authority for an award with respect to the taking of any of Subtenant’s trade fixtures or other removable property or to Subtenant’s costs and expenses of relocation as a result of the condemnation or other taking.;
(iiiiv) except as expressly set forth in this Sublease, Subtenant is shall not entitled have any right to exercise or have Sublandlord exercise any option under the Prime Lease, including, without limitation, any option to terminate or extend the term of the Prime Lease or lease additional space.; and
(ivv) If Subject to Section 6(a) above, as between Sublandlord and Subtenant, in the terms event of any conflict between the terms, conditions and provisions of the Prime Lease conflict with the terms and of this Sublease, the terms terms, conditions and provisions of this Sublease control as between Sublandlord shall, in all instances, govern and Subtenantcontrol.
(ed) It is expressly understood and agreed that Sublandlord does not assume and shall not have any of the obligations or liabilities of Landlord under the Prime Lease and that Sublandlord is not making the representations or warranties, if any, made by Landlord in the Prime Lease. With respect to work, services, repairs, repairs and restoration or the performance of other obligations required of Landlord under the Prime Lease, Sublandlord’ ’s sole obligation is with respect thereto shall be to request the same, upon written request from Subtenant, and to use reasonable efforts to obtain the same from Landlord. All reasonable out-of-pocket costs and expenses, including, without limitation, attorneys’ fees, incurred by Sublandlord in attempting at no expense to enforce Landlord’s obligations and liabilities under the Prime Lease as aforesaid shall be reimbursed by Subtenant within twenty (20) days of notice from Sublandlord, and shall be deemed Rent due and payable under this Sublease. Sublandlord shall not be liable in damages damages, nor shall rent ▇▇▇▇▇ hereunder, for or on account of any failure by Landlord to perform the obligations and duties imposed on it under the Prime Lease.
(fe) Nothing contained in this Sublease shall be construed to create privity of estate or contract between Subtenant and Landlord, except the agreements of Subtenant in Sections 10 and 11 hereof in favor of Landlord, and then only to the extent of the same.
Appears in 1 contract
The Prime Lease. (a) This Sublease and all rights of Subtenant under this Sublease hereunder and with respect to the Subleased Premises are subject and subordinate to the terms, conditions, conditions and provisions of the Prime LeaseLease (notwithstanding any termination, except for the provisions rejection or early expiration of the Prime Lease except as they conflict directly with this Sublease or are deemed not applicable to this Sublease pursuant to this Section 10(aLease). Subtenant hereby assumes and agrees to perform faithfully and be bound by, with respect to the Subleased Premises, all of Sublandlord’s obligations, covenants, agreements, agreements and liabilities under the Prime Lease to the extent these undertakings pertain to build out and occupancy of the Subleased Premises, and all terms, conditions, provisions, provisions and restrictions contained in the Prime Lease, except to the extent set forth in the preceding sentence, and Lease except:
(i) for the payment of Base Rent (each rent in amounts other than as defined or used set forth in the Prime Lease)this Sublease;
(ii) that, except as set forth in Section 9(a) above, neither Sublandlord nor that Subtenant needs shall not have any obligation or right to construct or install tenant improvements;leasehold improvements except as may be expressly provided herein; and
(iii) that none the following provisions of the Prime Lease do not apply to this Sublease: any provisions in the Prime Lease allowing or purporting to allow any rights or options of lease expansion, reduction, cancellation, or extension, or Sublandlord any rent concessions or abatements or construction allowances, apply to this Sublease; and
(iv) Subtenant has a period allowances and any provisions of time equal to the period of time that the tenant under the Prime Lease has to respond to granting Sublandlord any expansion options, renewal options, termination options, or otherwise cure rights of first offer or first refusal; and any notices given provisions by which Sublandlord indemnifies Landlord under the Prime Lease, less two (2) daysagainst actions or omissions of Sublandlord or its agents.
(b) Without limitation of the foregoing:
(i) Except with respect to the Future Alterations described in Section 9(e) above, Subtenant will shall not make any changes, alterations, alterations or additions in or to the Premises, Subleased Premises except those specifically contemplated by this Sublease and as permitted under the Prime Lease and subject to Sublandlord’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed.otherwise expressly provided herein;
(ii) If Subtenant desires to take any action, other action and the Prime Lease requires would require that Sublandlord to obtain the consent of Landlord before undertaking that type any action of actionthe same kind, Subtenant will shall not undertake the action same without the prior written consent of Sublandlord. Sublandlord may condition its consent on the consent of Landlord being obtained and may require that and authorize Subtenant to contact Landlord directly for its consent and that Subtenant take all other steps needed to assure that Sublandlord will have no additional obligations to Landlord under the Prime Lease as a result of such action. Within twenty (20) days of notice from Sublandlord, Subtenant will reimburse Sublandlord for all reasonable out-of-pocket costs, expenses, and attorneys’ fees that Sublandlord incurs in attempting to obtain a consent, other than the Landlord’s Consent, from Landlord.;
(iii) Sublandlord has, with respect to Subtenant, all rights, privileges, options, reservations, and remedies granted or allowed to, or held by, Landlord under the Prime Lease, except to the extent they are inconsistent with, or modified by the provisions of this Sublease, including without limitation, all All rights given to Landlord and its agents and representatives by the Prime Lease to enter the Master Premises shall inure to the benefit of Sublandlord and its agents and representatives with respect to the Subleased Premises, provided the provisions of the Prime Lease Space, upon reasonable under Section 12 of the Prime Lease as to prior notice and accompanied by a representative of Subtenant, as provided therein.minimizing disturbance are observed;
(iv) Sublandlord shall also have all other rights, privileges, options, reservations and remedies granted or allowed to or held by Landlord under the Prime Lease, with the exception of the rights reserved to Landlord under Section 23.2 of the Prime Lease;
(v) Subtenant will shall maintain insurance of the kinds and in the form and amounts required to be maintained by Sublandlord under the Prime Lease. All policies of liability insurance maintained by Subtenant shall name as an additional insureds insured Landlord, SVN Managementthe managing agent of the Building, Inc., a California corporationand the holder of any mortgage of which Subtenant shall receive notice, and Sublandlord and their respective officers, directors, members, managers, directors or partners, as the case may be, and the respective agents and employees of each of them. In additionUpon Sublandlord’s or Landlord’s request, Subtenant will shall furnish Landlord and Sublandlord with evidence certificates of insurance evidencing that Subtenant is carrying the insurance coverage in amounts that Landlord or Sublandlord may reasonably require.required to be carried by Subtenant hereunder; and
(vvi) Neither Subtenant nor Sublandlord will shall not do anything or suffer or permit anything to be done that which could result in a default under the Prime Lease or permit Landlord to cancel the Prime Lease. Sublandlord agrees to hereinafter duly perform all of the terms, covenants and conditions on Sublandlord’s part to be performed as tenant under the Prime Lease except for those of same which have been undertaken by Subtenant pursuant to the terms of this Sublease, including without limitation Sublandlord’s obligation to pay Base Rent (as defined in the Prime Lease) as tenant under the Prime Lease. Sublandlord agrees that it shall not voluntarily surrender, assign (which assignment may only be made subject to this Sublease) cancelled or enter into any amendment of the Prime Lease, during the Term hereof, without obtaining the prior written consent of Subtenantterminated.
(c) Sublandlord represents and warrants to Subtenant that:
(i) the Prime Lease is in full force and effect as of the date hereof, and has not been modified or amended as of that date and the copy attached hereto as Exhibit A is a complete copy of the Prime Lease and First Amendment to Lease;
(ii) Sublandlord is not now in default under any provision of the Prime Lease;
(iii) as of the Effective Date, no notice has been received of a default by Sublandlord under the terms of the Prime Lease; and
(iv) to the best of Sublandlord’s actual knowledge, Landlord is not, as of the date hereof, in default in the performance or observance of its obligations under the Prime Lease.
(d) Despite Notwithstanding anything contained in this Sublease herein or in the Prime Lease that may appear to be to the contrary, Sublandlord and Subtenant hereby agree thatas follows:
(i) Rent will Subtenant shall not assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Sublease or any interest of Subtenant in this Sublease, by operation of law or otherwise, or permit the use of the Subleased Premises or any part thereof by any persons other than Subtenant and Subtenant’s employees, or sublet the Subleased Premises or any part thereof, without the prior written consent of Landlord and Sublandlord (which consent of Sublandlord shall not be unreasonably withheld, conditioned or delayed); provided, however, that, subject to the terms of the Prime Lease, Subtenant may assign or sublease all or a portion of the Subleased Premises to an affiliated entity that is under common control with Subtenant, or is a wholly owned subsidiary of Subtenant (it being agreed that no such assignment or sublease shall release the original Subtenant from liability for all obligations of Subtenant under this Sublease);
(ii) Neither rental nor other payments hereunder shall ▇▇▇▇▇ by reason of any damage to or destruction of the Subleased Premises, the Master Premises or the Building or any part thereof, unless, and then only to the extent that, rent rental and such other payments actually ▇▇▇▇▇ under the Prime Lease with respect to the Premises.Subleased Premises on account of such event;
(iiiii) Subtenant is shall not entitled have any right to any portion of the proceeds of any award for a condemnation or other taking, or a conveyance in lieu of a condemnation or takingthereof, of all or any portion of the Building, the Prime Lease Space, Master Premises or the Subleased Premises, but provided, however that Subtenant may shall have the right to pursue a separate action its own claim against the applicable governmental condemning authority for an award with respect the value of its personal property and trade fixtures installed in the Subleased Premises and for relocation expenses provided Sublandlord is permitted to do so pursuant to the taking of any of Subtenant’s trade fixtures or other removable property or to Subtenant’s costs and expenses of relocation as a result terms of the condemnation or other taking.Prime Lease;
(iiiiv) except as expressly set forth in this Sublease, Subtenant is shall not entitled have any right to exercise or have Sublandlord exercise any option under the Prime Lease, including, without limitation, any option to terminate or extend the term of the Prime Lease or lease additional space.; and
(ivv) If Subject to Section 6(a) above, as between Sublandlord and Subtenant, in the terms event of any conflict between the terms, conditions and provisions of the Prime Lease conflict with the terms and of this Sublease, the terms terms, conditions and provisions of this Sublease control shall, in all instances, govern and control. Should Landlord elect to attorn to Subtenant in the event of the termination, rejection or early termination of the Prime Lease, then the provisions of the Sublease as between Sublandlord modified by the terms of that certain Consent to Sublease given by Landlord for this Sublease shall govern and Subtenantcontrol.
(ed) It is expressly understood and agreed that Sublandlord does not assume and shall not have any of the obligations or liabilities of Landlord under the Prime Lease and that Sublandlord is not making the representations or warranties, if any, made by Landlord in the Prime Lease. With respect to work, services, repairs, repairs and restoration or the performance of other obligations required of Landlord under the Prime Lease, Sublandlord’ ’s sole obligation is with respect thereto shall be promptly to request the same, upon either verbal, in the case of urgent circumstances (to be followed up in writing), or written request from Subtenant, and to use reasonable efforts to obtain the same from Landlord. All reasonable out-of-pocket costs and expenses, including, without limitation, attorneys’ fees, incurred by Sublandlord in attempting at no expense to enforce Landlord’s obligations and liabilities under the Prime Lease as aforesaid shall be reimbursed by Subtenant within twenty (20) days of notice from Sublandlord, and shall be deemed Rent due and payable under this Sublease. Sublandlord shall not be liable in damages damages, nor shall rent ▇▇▇▇▇ hereunder, for or on account of any failure by Landlord to perform the obligations and duties imposed on it under the Prime Lease, unless such failure by Landlord is occasioned or excused by acts or omissions of Sublandlord, in which case Sublandlord shall be responsible for the necessary work to repair or restore services under the Sublease.
(fe) Nothing contained in this Sublease shall be construed to create privity of estate or contract between Subtenant and Landlord, except (i) the agreements of Subtenant in Sections 10 and 11 hereof in favor of Landlord, and then only to the extent of the same, and (ii) the provisions of the Consent to Sublease, and then only to the extent provided there.
Appears in 1 contract
Sources: Sublease (Capitalsource Inc)
The Prime Lease. (a) This Sublease and all rights of Subtenant under this Sublease hereunder and with respect to the Subleased Premises are subject and subordinate to the terms, conditions, conditions and provisions of the Prime Lease, except for the provisions of the Prime Lease except as they conflict directly with this Sublease or are deemed not applicable to this Sublease pursuant to this Section 10(a). Subtenant hereby assumes and agrees to perform faithfully and be bound by, with respect to the Subleased Premises, all of Sublandlord’s obligations, covenants, agreements, agreements and liabilities under the Prime Lease and all terms, conditions, provisions, provisions and restrictions contained in the Prime Lease, except to the extent set forth in the preceding sentence, and Lease except:
(i) for the payment of Base Rent (each rent in amounts other than as defined or used set forth in the Prime Lease)this Sublease;
(ii) that, except as set forth in Section 9(a) above, neither Sublandlord nor that Subtenant needs shall not have any obligation or right to construct or install tenant improvements;leasehold improvements except as may be expressly provided herein; and
(iii) that none the following provisions of the Prime Lease do not apply to this Sublease: any provisions in the Prime Lease allowing or purporting to allow any rights or options of lease expansion, reduction, cancellation, or extension, or Sublandlord any rent concessions or abatements or construction allowances, apply to this Sublease; and
(iv) Subtenant has a period allowances and any provisions of time equal to the period of time that the tenant under the Prime Lease has to respond to granting Sublandlord any expansion options, renewal options, termination options, or otherwise cure any notices given by Landlord under the Prime Lease, less two (2) daysrights of first offer or first refusal.
(b) Without limitation of the foregoing:
(i) Except with respect to the Future Alterations described in Section 9(e) above, Subtenant will shall not make any changes, alterations, alterations or additions in or to the Premises, Subleased Premises except as permitted under the Prime Lease and subject to Sublandlord’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed.otherwise expressly provided herein;
(ii) If Subtenant desires to take any action, other action and the Prime Lease requires would require that Sublandlord to obtain the consent of Landlord before undertaking that type any action of actionthe same kind, Subtenant will shall not undertake the action same without the prior written consent of Sublandlord. Sublandlord may condition its consent on the consent of Landlord being obtained and may require that Subtenant to contact Landlord directly for its consent and that Subtenant take all other steps needed to assure that Sublandlord will have no additional obligations to Landlord under the Prime Lease as a result of such action. Within twenty (20) days of notice from Sublandlord, Subtenant will reimburse Sublandlord for all reasonable out-of-pocket costs, expenses, and attorneys’ fees that Sublandlord incurs in attempting to obtain a consent, other than the Landlord’s Consent, from Landlord.;
(iii) Sublandlord has, with respect to Subtenant, all rights, privileges, options, reservations, and remedies granted or allowed to, or held by, Landlord under the Prime Lease, except to the extent they are inconsistent with, or modified by the provisions of this Sublease, including without limitation, all All rights given to Landlord and its agents and representatives by the Prime Lease to enter the Prime Lease Space, upon reasonable notice Master Premises shall inure to the benefit of Sublandlord and accompanied by a representative of Subtenant, as provided therein.its agents and representatives with respect to the Subleased Premises;
(iv) Sublandlord shall also have all other rights, privileges, options, reservations and remedies granted or allowed to or held by Landlord under the Prime Lease;
(v) Subtenant will shall maintain insurance of the kinds and in the amounts required to be maintained by Sublandlord under the Prime Lease. All policies of liability insurance maintained by Subtenant shall name as additional insureds Landlord, SVN Management, Inc., a California corporation, Landlord and Sublandlord and their respective officers, directors, members, managers, directors or partners, as the case may be, and the respective agents and employees of each of them. In additionSimultaneously with the execution of this Sublease and thereafter not later than thirty (30) days before any scheduled date of expiration of such insurance, Subtenant will shall furnish Landlord and Sublandlord with evidence certificates of insurance evidencing that Subtenant is carrying the insurance coverage in amounts that Landlord or Sublandlord may reasonably require.required to be carried by Subtenant hereunder; and
(vvi) Neither Subtenant nor Sublandlord will shall not do anything or suffer or permit anything to be done that which could result in a default under the Prime Lease or permit Landlord to cancel the Prime Lease. Sublandlord agrees to hereinafter duly perform all of the terms, covenants and conditions on Sublandlord’s part to be performed as tenant under the Prime Lease except for those of same which have been undertaken by Subtenant pursuant to the terms of this Sublease, including without limitation Sublandlord’s obligation to pay Base Rent (as defined in the Prime Lease) as tenant under the Prime Lease. Sublandlord agrees that it shall not voluntarily surrender, assign (which assignment may only be made subject to this Sublease) cancelled or enter into any amendment of the Prime Lease, during the Term hereof, without obtaining the prior written consent of Subtenantterminated.
(c) Sublandlord represents and warrants to Subtenant that:
(i) the Prime Lease is in full force and effect as of the date hereof, and has not been modified or amended as of that date and the copy attached hereto as Exhibit A is a complete copy of the Prime Lease and First Amendment to Lease;
(ii) Sublandlord is not now in default under any provision of the Prime Lease;
(iii) as of the Effective Date, no notice has been received of a default by Sublandlord under the terms of the Prime Lease; and
(iv) to the best of Sublandlord’s actual knowledge, Landlord is not, as of the date hereof, in default in the performance or observance of its obligations under the Prime Lease.
(d) Despite Notwithstanding anything contained in this Sublease herein or in the Prime Lease that may appear to be to the contrary, Sublandlord and Subtenant hereby agree thatas follows:
(i) Rent will Subtenant shall not assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Sublease or any interest of Subtenant in this Sublease, by operation of law or otherwise, or permit the use of the Subleased Premises or any part thereof by any persons other than Subtenant and Subtenant’s employees, or sublet the Subleased Premises or any part thereof, without the prior written consent of Prime Landlord and Sublandlord (which consent of Sublandlord shall not be unreasonably withheld, conditioned or delayed);
(ii) Neither rental nor other payments hereunder shall ▇▇▇▇▇ by reason of any damage to or destruction of the Subleased Premises, the Master Premises or the Building or any part thereof, unless, and then only to the extent that, rent rental and such other payments actually ▇▇▇▇▇ under the Prime Lease with respect to the Premises.Subleased Premises on account of such event;
(iiiii) Subtenant is shall not entitled have any right to any portion of the proceeds of any award for a condemnation or other taking, or a conveyance in lieu of a condemnation or takingthereof, of all or any portion of the Building, the Prime Lease Space, Master Premises or the Subleased Premises, but Subtenant may pursue a separate action against the applicable governmental authority for an award with respect to the taking of any of Subtenant’s trade fixtures or other removable property or to Subtenant’s costs and expenses of relocation as a result of the condemnation or other taking.;
(iiiiv) except as expressly set forth in this Sublease, Subtenant is shall not entitled have any right to exercise or have Sublandlord exercise any option under the Prime Lease, including, without limitation, any option to terminate or extend the term of the Prime Lease or lease additional space.; and
(ivv) If Subject to Section 6(a) above, as between Sublandlord and Subtenant, in the terms event of any conflict between the terms, conditions and provisions of the Prime Lease conflict with the terms and of this Sublease, the terms terms, conditions and provisions of this Sublease control as between Sublandlord shall, in all instances, govern and Subtenantcontrol.
(ed) It is expressly understood and agreed that Sublandlord does not assume and shall not have any of the obligations or liabilities of Landlord under the Prime Lease and that Sublandlord is not making the representations or warranties, if any, made by Landlord in the Prime Lease. With respect to work, services, repairs, repairs and restoration or the performance of other obligations required of Landlord under the Prime Lease, Sublandlord’ ’s sole obligation is with respect thereto shall be to request the same, upon written request from Subtenant, and to use reasonable efforts to obtain the same from Landlord. All reasonable out-of-pocket costs and expenses, including, without limitation, attorneys’ fees, incurred by Sublandlord in attempting at no expense to enforce Landlord’s obligations and liabilities under the Prime Lease as aforesaid shall be reimbursed by Subtenant within twenty (20) days of notice from Sublandlord, and shall be deemed Rent due and payable under this Sublease. Sublandlord shall not be liable in damages damages, nor shall rent ▇▇▇▇▇ hereunder, for or on account of any failure by Landlord to perform the obligations and duties imposed on it under the Prime Lease, unless, and then only to the extent that, rental and such other payments actually ▇▇▇▇▇ under the Prime Lease with respect to the Subleased Premises on account of such failure.
(fe) Nothing contained in this Sublease shall be construed to create privity of estate or contract between Subtenant and Landlord, except the agreements of Subtenant in Sections 10 and 11 hereof in favor of Landlord, and then only to the extent of the same.
Appears in 1 contract
Sources: Sublease (Capitalsource Inc)
The Prime Lease. (a) This Sublease and all rights of Subtenant under this Sublease hereunder and with respect to the Premises are subject to the terms, conditions, conditions and provisions of the Prime Lease, except for the provisions of the Prime Lease except as they conflict directly with this Sublease or are deemed not applicable to this Sublease pursuant to this Section 10(a). Subtenant hereby assumes and agrees to perform faithfully and be bound by, with respect to the Premises, all of Sublandlord’s obligations, covenants, agreements, agreements and liabilities under the Prime Lease and all terms, conditions, provisions, provisions and restrictions contained in the Prime Lease, except to the extent set forth in the preceding sentence, and except:
(i) for the payment of Base Rent (each as defined or used in the Prime Lease);
(ii) that, except as set forth in Section 9(a) above, neither Sublandlord nor Subtenant needs to construct or install tenant improvements;
(iii) that none of the provisions in the Prime Lease allowing or purporting to allow any rights or options of lease expansion, reduction, cancellation, or extension, or any rent concessions or construction allowances, apply to this Sublease; and
(iv) Subtenant has a period of time equal to the period of time that the tenant under the Prime Lease has to respond to or otherwise cure any notices given by Landlord under the Prime Lease, less two (2) days.
(b) Without limitation of the foregoing:
(i) Except with respect In the event that Subtenant desires to the Future Alterations described in Section 9(e) above, Subtenant will not make any changes, alterations, alterations or additions in or improvements to the Premises, except as permitted Subtenant shall comply with the provisions and requirements of the Prime Lease with respect to such alterations or improvements, including, without limitation, obtaining any consent of the Landlord which may be required under the Prime Lease and subject to Lease. In the event that the Landlord’s consent is required in connection with any proposed alteration or improvement, Subtenant shall also obtain Sublandlord’s prior approval of such alteration or improvement, which approval shall not be unreasonably withheld, conditioned or delayed by Sublandlord;
(ii) If Subtenant desires to take any other action and the Prime Lease would require that Sublandlord obtain the consent of Landlord before undertaking any action of the same kind, Subtenant shall not undertake the same without the prior written consentconsent of Sublandlord, which consent shall not be unreasonably withheld, conditioned or delayed.
(ii) If Subtenant desires to take any action, and the Prime Lease requires Sublandlord to obtain the consent of Landlord before undertaking that type of action, Subtenant will not undertake the action without the prior written consent of Sublandlord. Sublandlord may condition its consent on the consent of Landlord being obtained and may require that Subtenant to contact Landlord directly for its such consent and that Subtenant take all other steps needed to assure that Sublandlord will have no additional obligations to Landlord under the Prime Lease as a result of such action. Within twenty (20) days of notice from Sublandlord, Subtenant will reimburse Sublandlord for pay all reasonable out-of-pocket costs, expenses, costs and attorneys’ fees that Sublandlord incurs in attempting to obtain a expenses associated with requesting such consent, other than the Landlord’s Consent, from Landlord.;
(iii) Sublandlord has, with respect to Subtenant, all rights, privileges, options, reservations, and remedies granted or allowed to, or held by, Landlord under the Prime Lease, except to the extent they are inconsistent with, or modified by the provisions of this Sublease, including without limitation, all All rights given to Landlord and its agents and representatives by the Prime Lease to enter the premises covered by the Prime Lease Space, upon reasonable notice shall inure to the benefit of Sublandlord and accompanied by a representative of Subtenant, as provided therein.their respective agents and representatives with respect to the Premises;
(iv) To the extent not inconsistent with the terms of this Sublease, Sublandlord shall also have all other rights, and all privileges, options, reservations and remedies, granted or allowed to, or held by, Landlord under the Prime Lease;
(v) Subtenant will shall maintain insurance of the kinds and in the amounts required to be maintained by Sublandlord under the Prime Lease. All policies of liability insurance maintained by Subtenant shall name as additional insureds Landlord, SVN Management, Inc., a California corporation, the Landlord and Sublandlord and their respective officers, directors, members, managers, directors or partners, as the case may be, and the respective agents and employees of each of them. In addition, Subtenant will furnish Landlord and Sublandlord with evidence of the insurance coverage in amounts that Landlord or Sublandlord may reasonably require.;
(vvi) Neither Subtenant nor Sublandlord will shall not do anything or suffer or permit anything to be done that which could result in a default under the Prime Lease or permit Landlord to cancel the Prime Lease. Sublandlord agrees to hereinafter duly perform all of the terms, covenants and conditions on Sublandlord’s part to be performed as tenant under the Prime Lease except for those of same which have been undertaken by Subtenant pursuant to the terms of this Sublease, including without limitation Sublandlord’s obligation to pay Base Rent (as defined in the Prime Lease) as tenant under the Prime Lease. Sublandlord agrees that it shall not voluntarily surrender, assign (which assignment may only be made subject to this Sublease) cancelled or enter into any amendment of the Prime Lease, during the Term hereof, without obtaining the prior written consent of Subtenant.
(c) Sublandlord represents and warrants to Subtenant that:
(i) the Prime Lease is in full force and effect as of the date hereof, and has not been modified or amended as of that date and the copy attached hereto as Exhibit A is a complete copy of the Prime Lease and First Amendment to Lease;
(ii) Sublandlord is not now in default under any provision of the Prime Lease;
(iii) as of the Effective Date, no notice has been received of a default by Sublandlord under the terms of the Prime Leaseterminated; and
(ivvii) Subtenant shall have the right to the best install signage in accordance with Section 40 of Sublandlord’s actual knowledge, Landlord is not, as of the date hereof, in default in the performance or observance of its obligations under the Prime Lease.
(dc) Despite Notwithstanding anything contained in this Sublease herein or in the Prime Lease which may appear to be to the contrary, Sublandlord and Subtenant hereby agree thatas follows:
(i) Rent will Subtenant shall not assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Sublease or any interest of Subtenant in this Sublease, by operation of law or otherwise, or permit the use of the Premises or any part thereof by any persons other than Subtenant and Subtenant’s employees, or sublet the Premises or any part thereof without (i) the prior written consent of Sublandlord which consent shall not be unreasonably withheld, conditioned or delayed and (ii) if required by the terms of the Prime Lease, the prior written consent of the Landlord;
(ii) neither rental nor other payments hereunder shall ▇▇▇▇▇ by reason of any damage to or destruction of the Premises Premises, the premises subject to the Prime Lease, or the Building or any part thereof, unless, and then only to the extent that, rent rental and such other payments actually ▇▇▇▇▇ under the Prime Lease with respect to the Premises.Premises on account of such event;
(iiiii) Subtenant is shall not entitled have any right to any portion of the proceeds of any award for a condemnation or other taking, or a conveyance in lieu of a condemnation or takingthereof, of all or any portion of the Building, Building or the Premises except to the extent that Sublandlord has a right to such proceeds pursuant to the terms of the Prime Lease Space, or the Premises, but Subtenant may pursue a separate action against the applicable governmental authority for an award with respect to the taking of any of Subtenant’s trade fixtures or other removable property or to Subtenant’s costs and expenses of relocation as a result of the condemnation or other taking.Lease;
(iiiiv) except as expressly set forth in this Sublease, Subtenant is shall not entitled have any right to exercise or have Sublandlord exercise any option under the Prime Lease, including, without limitation, any option to terminate or extend the term of the Prime Lease or right of first offer to lease additional space.; and
(ivv) If In the terms event of any conflict between the terms, conditions and provisions of the Prime Lease conflict with the terms and of this Sublease, the terms terms, conditions and provisions of this Sublease control as between Sublandlord shall, in all instances, govern and Subtenantcontrol.
(ed) It is expressly understood and agreed that Sublandlord does not assume and shall not have any of the obligations or liabilities of Landlord under the Prime Lease and that Sublandlord is not making the representations or warranties, if any, made by Landlord in the Prime Lease. With respect to work, services, repairs, repairs and restoration or the performance of other obligations required of Landlord under the Prime Lease, Sublandlord’ sole obligation is ’s only obligations with respect thereto shall be to promptly request the same, upon written request from Subtenant, and to use commercially reasonable efforts to obtain the same from Landlord, any costs related to such efforts to be paid by Subtenant. All reasonable out-of-pocket costs and expensesIf Sublandlord fails to use such efforts, including, without limitation, attorneys’ fees, incurred by Sublandlord in attempting to enforce Landlord’s obligations and liabilities under the Prime Lease as aforesaid Subtenant shall be reimbursed by Subtenant within twenty (20) days of notice entitled to seek to obtain same from Sublandlord, and shall be deemed Rent due and payable under this SubleaseLandlord. Sublandlord shall not be liable in damages damages, nor shall rent ▇▇▇▇▇ hereunder, for or on account of any failure by Landlord to perform the obligations and duties imposed on it under the Prime Lease; provided however, Subtenant shall be entitled any abatement rights that Sublandlord actually receives as tenant under the Prime Lease.
(fe) Nothing contained in this Sublease shall be construed to create privity of estate or contract between Subtenant and Landlord, except the agreements of Subtenant in Sections 10 and 11 hereof in favor of Landlord, and then only to the extent of the same.
(f) Sublandlord warrants and represents to Subtenant the following, each of which warranties and representations shall be deemed remade and repeated as of the Commencement Date: (i) the copy of the Prime Lease attached hereto as Exhibit A is a true and complete copy of the Prime Lease including all amendments thereto, (ii) the Prime Lease is in full force and effect, (iii) Sublandlord has not received a notice of default or notice of termination with respect to the Lease which has not been cured, (iv) Sublandlord is neither in default of nor has Sublandlord breached any of its material covenants, agreements or obligations under the Prime Lease, (v) to Sublandlord’s knowledge, Landlord is neither in default of nor has Landlord breached any of its material covenants, agreements or obligations under the Prime Lease, (vi) Sublandlord’s interest in the Prime Lease has not been conveyed, transferred, assigned, pledged or otherwise encumbered, and (vii) all amounts due and payable by Sublandlord under the Lease, including any Base Rent and Additional Rent, have been paid through August 31, 2004.
(g) Subject to Subtenant’s obligations hereunder, Sublandlord shall, in its capacity as tenant under the Prime Lease, perform and fulfill all of its covenants, obligations and agreements under the Prime Lease in accordance with the provisions thereof in all material respects, and shall not do anything which would cause the Prime Lease to be terminated or forfeited. Sublandlord shall indemnify and hold Subtenant harmless from and against any and all claims, liabilities, losses, damage, demands, expenses (including, without limitation, reasonable attorney’s fees), actions and causes of action of any kind whatsoever that Subtenant may suffer, incur or be liable by reason of any breach or default on the part of Sublandlord or its employees or agents, in its capacity as tenant under the Prime Lease which is not caused by Subtenant or its default hereunder, by reason of which the Lease may be terminated or forfeited. Sublandlord covenants that it will not enter into any agreement that will modify or amend the Prime Lease so as to adversely affect Subtenant’s right to use and occupy the Subleased Premises or any other rights of Subtenant under this Sublease, or increase or materially affect the obligations of Subtenant under this Sublease. Further, Sublandlord will promptly provide Subtenant with copies of all written notices of default that Sublandlord delivers to, or receives from, the Landlord under the Prime Lease.
(h) Subtenant shall not be responsible for constructing or completing any of the tenant improvements set forth in Exhibit D to the Prime Lease.
Appears in 1 contract
Sources: Sublease (Bio Key International Inc)
The Prime Lease. (a) 4.1. This Sublease agreement is a SUBLEASE under a lease dated February 1, 1999, between SUBLESSOR and all rights OVERLANDLORD pursuant to which SUBLESSOR is the holder of Subtenant the lessee interest. SUBLESSEE acknowledges the receipt of a copy of the PRIME LEASE from SUBLESSOR. It is understood and agreed by the parties hereto that this SUBLEASE and the liability of both SUBLESSOR and SUBLESSEE hereunder are expressly conditioned and predicated upon and shall not become effective unless and until SUBLESSOR herein has obtained from the OVERLANDLORD such written consent and approval of this SUBLEASE as may be required under this Sublease and with respect to the Premises are PRIME LEASE.
4.2. This SUBLEASE is expressly subject to the terms, conditions, terms and provisions of the Prime Lease, except for the provisions of the Prime Lease except as they conflict directly with this Sublease or are deemed not applicable to this Sublease pursuant to this Section 10(a). Subtenant assumes and agrees to perform faithfully and be bound by, with respect to the Premises, all of Sublandlord’s obligations, covenants, agreements, and liabilities under the Prime Lease and all terms, conditions, provisions, and restrictions contained in the Prime LeasePRIME LEASE and, except to the extent set forth in the preceding sentence, such terms and except:
(i) for the payment of Base Rent (each as defined or used in the Prime Lease);
(ii) that, except as set forth in Section 9(a) above, neither Sublandlord nor Subtenant needs to construct or install tenant improvements;
(iii) that none of the provisions in the Prime Lease allowing or purporting to allow any rights or options of lease expansion, reduction, cancellation, or extension, or any rent concessions or construction allowances, apply to this Sublease; and
(iv) Subtenant has a period of time equal are specifically contrary to the period express written provisions of time that the tenant under the Prime Lease has to respond to or otherwise cure any notices given by Landlord under the Prime Leasethis SUBLEASE, less two (2) days.
(b) Without limitation of the foregoing:
(i) Except with respect to the Future Alterations described in Section 9(e) above, Subtenant will not make any changes, alterations, or additions in or to the Premises, except as permitted under the Prime Lease and subject to Sublandlord’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed.
(ii) If Subtenant desires to take any action, and the Prime Lease requires Sublandlord to obtain the consent of Landlord before undertaking that type of action, Subtenant will not undertake the action without the prior written consent of Sublandlord. Sublandlord may condition its consent on the consent of Landlord and may require that Subtenant contact Landlord directly for its consent and that Subtenant take all other steps needed to assure that Sublandlord will have no additional obligations to Landlord under the Prime Lease as a result of such action. Within twenty (20) days of notice from Sublandlord, Subtenant will reimburse Sublandlord for all reasonable out-of-pocket costs, expenses, and attorneys’ fees that Sublandlord incurs in attempting to obtain a consent, other than the Landlord’s Consent, from Landlord.
(iii) Sublandlord has, with respect to Subtenant, all rights, privileges, options, reservations, and remedies granted or allowed to, or held by, Landlord under the Prime Lease, except to the extent they are inconsistent with, or modified by case the provisions of this SubleaseSUBLEASE shall control, including without limitation, all rights given to Landlord such terms and its agents and representatives provisions of the PRIME LEASE are hereby incorporated by the Prime Lease to enter the Prime Lease Space, upon reasonable notice and accompanied by a representative reference as part of Subtenant, as provided thereinthis SUBLEASE.
(iv) Subtenant will maintain insurance of the kinds and in the amounts required to be maintained by Sublandlord under the Prime Lease. All policies of liability insurance maintained by Subtenant shall name as additional insureds Landlord, SVN Management, Inc., a California corporation, and Sublandlord and their respective officers, directors, members, managers, or partners, as the case may be, and the respective agents and employees of each of them. In addition, Subtenant will furnish Landlord and Sublandlord with evidence of the insurance coverage in amounts that Landlord or Sublandlord may reasonably require.
(v) Neither Subtenant nor Sublandlord will do anything or suffer or permit anything to be done that could result in a default under the Prime Lease or permit Landlord to cancel the Prime Lease. Sublandlord agrees to hereinafter duly perform all of the terms, covenants and conditions on Sublandlord’s part to be performed as tenant under the Prime Lease except for those of same which have been undertaken by Subtenant pursuant to the terms of this Sublease, including without limitation Sublandlord’s obligation to pay Base Rent (as defined in the Prime Lease) as tenant under the Prime Lease. Sublandlord agrees that it shall not voluntarily surrender, assign (which assignment may only be made subject to this Sublease) or enter into any amendment of the Prime Lease, during the Term hereof, without obtaining the prior written consent of Subtenant.
(c) Sublandlord represents and warrants to Subtenant that:
(i) the Prime Lease is in full force and effect as of the date hereof, and has not been modified or amended as of that date and the copy attached hereto as Exhibit A is a complete copy of the Prime Lease and First Amendment to Lease;
(ii) Sublandlord is not now in default under any provision of the Prime Lease;
(iii) as of the Effective Date, no notice has been received of a default by Sublandlord under the terms of the Prime Lease; and
(iv) to the best of Sublandlord’s actual knowledge, Landlord is not, as of the date hereof, in default in the performance or observance of its obligations under the Prime Lease.
(d) Despite anything contained in this Sublease or in the Prime Lease to the contrary, Sublandlord and Subtenant agree that:
(i) Rent will not ▇▇▇▇▇ by reason of any damage to or destruction of the Premises unless, and then only to the extent that, rent and other payments actually ▇▇▇▇▇ under the Prime Lease with respect to the Premises.
(ii) Subtenant is not entitled to any portion of the proceeds of any award for a condemnation or other taking, or a conveyance in lieu of a condemnation or taking, of all or any portion of the Building, the Prime Lease Space, or the Premises, but Subtenant may pursue a separate action against the applicable governmental authority for an award with respect to the taking of any of Subtenant’s trade fixtures or other removable property or to Subtenant’s costs and expenses of relocation as a result of the condemnation or other taking.
(iii) except as expressly set forth in this Sublease, Subtenant is not entitled to exercise or have Sublandlord exercise any option under the Prime Lease, including, without limitation, any option to terminate or extend the term of the Prime Lease or lease additional space.
(iv) If the terms of the Prime Lease conflict with the terms of this Sublease, the terms of this Sublease control as between Sublandlord and Subtenant.
(e) Sublandlord does not assume the obligations or liabilities of Landlord under the Prime Lease and is not making the representations or warranties, if any, made by Landlord in the Prime Lease4.3. With respect to work, services, repairs, repairs and restoration or the performance of other obligations required of Landlord the OVERLANDLORD under the Prime LeasePRIME LEASE, Sublandlord’ SUBLESSOR herein, does not undertake and shall have no obligation to perform any of the same. SUBLESSOR'S sole obligation is with respect thereto shall be to request the same, upon written after request from Subtenantby SUBLESSEE, and to use reasonable efforts send all notices required under the PRIME LEASE to obtain the OVERLANDLORD. If the OVERLANDLORD does not comply with its obligations under the PRIME LEASE, SUBLESSEE, as its own expense, shall have the right to enforce the performance of such obligations against OVERLANDLORD (but not against SUBLESSOR) in its own name or in the name of SUBLESSOR herein (as required or permitted by applicable law, but in any event without cost or expense to SUBLESSOR) but only to the extent permitted by the PRIME LEASE and SUBLESSEE shall indemnify, exonerate and hold SUBLESSOR harmless from and against any loss, cost, expense, damages or liability that SUBLESSOR may suffer or incur as a result thereof. SUBLESSOR shall cooperate with SUBLESSEE and (to the extent requested by SUBLESSEE in writing) shall take or refrain from taking all actions reasonably necessary to further the intent of his provision, provided that SUBLESSEE reimburses SUBLESSOR for all costs and expenses incurred by SUBLESSOR in connection therewith.
4.4. Notwithstanding anything herein contained to the contrary, if the PRIME LEASE terminates during the term hereof for any reason whatsoever, this SUBLEASE shall terminate upon such termination of the PRIME LEASE with the same from Landlord. All reasonable out-of-pocket costs force and expenses, including, without limitation, attorneys’ fees, incurred by Sublandlord in attempting to enforce Landlord’s obligations and liabilities under effect as if such termination date had been named herein as the Prime Lease as aforesaid shall be reimbursed by Subtenant within twenty (20) days date of notice from Sublandlord, and shall be deemed Rent due and payable under this Sublease. Sublandlord shall not be liable in damages for or on account of any failure by Landlord to perform the obligations and duties imposed on it under the Prime Leaseexpiration hereof.
(f) Nothing contained in this Sublease shall be construed to create privity of estate or contract between Subtenant and Landlord.
Appears in 1 contract
The Prime Lease. (a) This Sublease and all rights of Subtenant under this Sublease hereunder and with respect to the Sublease Premises are subject to the terms, conditions, conditions and provisions of the Prime Lease, except for the provisions of the Prime Lease except as they conflict directly with this Sublease or are deemed not applicable to this Sublease pursuant to this Section 10(a). Subtenant hereby assumes and agrees to perform faithfully and be bound by, with respect to the Sublease Premises, all of Sublandlord’s 's obligations, covenantscove-nants, agreements, agreements and liabilities under the Prime Lease and all terms, conditionscondi-tions, provisions, provisions and restrictions re-strictions contained in the Prime Lease, except to the extent set forth in the preceding sentence, and Lease except:
(i) for the payment of Base Rent "Rental" (each as such term is defined or used in paragraph 2 of the Prime Lease);
(ii) that, except as set forth in Section 9(a) above, neither Sublandlord nor that Subtenant needs shall not have any obliga-tions to construct con-struct or install tenant improvements;improvements except as may be provided herein; and
(iii) that none the following provisions of the Prime Lease do not apply to this Sublease: any provisions in the Prime Lease allowing or purporting to allow any rights or options of lease expansion, reduction, cancellation, or extension, or Subland-lord any rent concessions conces-sions or construction allowancesabatements or constr▇▇-▇▇▇▇ ▇▇▇▇wances, apply any provisions allowing Sublandlord to this Sublease; and
(iv) Subtenant has a period extend or renew the term of time equal to the period of time that the tenant under the Prime Lease has to respond to or otherwise cure any notices given by Landlord under the Prime Lease, less two (2) daysany provisions of the Prime Lease granting any option to purchase or lease the Building or any other space in the Project.
(b) Without limitation of the foregoing:
(i) Except with respect to the Future Alterations described in Section 9(e) above, Subtenant will shall not make any changes, alterations, alterations or additions in or to the Premises, Sublease Premises except as permitted under otherwise expressly provided herein on Exhibit B. In connection therewith, Sublandlord and Subtenant acknowledge and agree that Subtenant desires to make certain alterations, additions and/or improvements to the Premises following its occupancy thereof. In connection with such work (hereinafter referred to as the "Subtenant Work"), such work shall be performed at the sole cost and expense of Subtenant and shall strictly conform to all the terms and provisions of the Prime Lease Lease. Subtenant shall obtain the approval of both the Landlord and subject Sublandlord with respect to Sublandlord’s any and all aspects of the Subtenant Work prior written consent, which consent to commencing same. Subtenant shall not be unreasonably withheldrequired to remove or otherwise reverse any changes, conditioned alterations or delayedadditions at the end of the Sublease, provided Landlord and Sublandlord have approved the changes, alterations or additions as stated above, and all changes, alterations or additions will become the property of Landlord or Sublandlord at the end of the Sublease unless further arrangements are made between Subtenant and Landlord to continue Subtenant's occupancy of the Premises.
(ii) If Subtenant desires to take any action, other action and the Prime Lease requires would require that Sublandlord to obtain the consent of Landlord before undertaking that type any action of actionthe same kind, Subtenant will shall not undertake the action same without the prior written consent of Sublandlord. Sublandlord may condition its consent on the consent of Landlord being obtained and may require that Subtenant to contact Landlord directly for its consent and that Subtenant take all other steps needed to assure that Sublandlord will have no additional obligations to Landlord under the Prime Lease as a result of such action. Within twenty (20) days of notice from Sublandlord, Subtenant will reimburse Sublandlord for all reasonable out-of-pocket costs, expenses, and attorneys’ fees that Sublandlord incurs in attempting to obtain a consent, other than the Landlord’s Consent, from Landlord.;
(iii) All rights given to Landlord and its agents and repre-sentatives by the Prime Lease to enter the Sublease Premises shall inure to the benefit of Sublandlord has, and their respective agents and representa-tives with respect to Subtenant, the Sublease Premises;
(iv) Sublandlord shall also have all other rights, and all privileges, options, reservationsreservations and remedies, and remedies granted grant-ed or allowed toallow▇▇ ▇▇, or held by, Landlord under the Prime Lease, except to the extent they are inconsistent with, or modified by the provisions of this Sublease, including without limitation, all rights given to Landlord and its agents and representatives by the Prime Lease to enter the Prime Lease Space, upon reasonable notice and accompanied by a representative of Subtenant, as provided therein.;
(ivv) Subtenant will shall maintain insurance of the kinds and in the amounts required to be maintained by Sublandlord under the Prime Lease. All policies of liability insurance maintained by Subtenant insur-ance shall name as additional insureds Landlord, SVN Management, Inc., a California corporation, the Landlord and Sublandlord and their respective officers, directors, members, managers, direc-tors or partners, as the case may be, and the respective respec-tive agents and employees employ-ees of each of them. In addition, Subtenant will furnish Landlord and Sublandlord with evidence of the insurance coverage in amounts that Landlord or Sublandlord may reasonably require.; and
(vvi) Neither Subtenant nor Sublandlord will shall not do anything or suffer or permit anything to be done that which could result in a default under the Prime Lease or permit Landlord to cancel the Prime Lease. Sublandlord agrees to hereinafter duly perform all of the terms, covenants and conditions on Sublandlord’s part to be performed as tenant under the Prime Lease except for those of same which have been undertaken by Subtenant pursuant to the terms of this Sublease, including without limitation Sublandlord’s obligation to pay Base Rent (as defined in the Prime Lease) as tenant under the Prime Lease. Sublandlord agrees that it shall not voluntarily surrender, assign (which assignment may only be made subject to this Sublease) canceled or enter into any amendment of the Prime Lease, during the Term hereof, without obtaining the prior written consent of Subtenantterminated.
(c) Sublandlord represents and warrants to Subtenant that:
(i) the Prime Lease is in full force and effect as of the date hereof, and has not been modified or amended as of that date and the copy attached hereto as Exhibit A is a complete copy of the Prime Lease and First Amendment to Lease;
(ii) Sublandlord is not now in default under any provision of the Prime Lease;
(iii) as of the Effective Date, no notice has been received of a default by Sublandlord under the terms of the Prime Lease; and
(iv) to the best of Sublandlord’s actual knowledge, Landlord is not, as of the date hereof, in default in the performance or observance of its obligations under the Prime Lease.
(d) Despite Notwithstanding anything contained in this Sublease herein or in the Prime Lease which may appear to be to the contrary, Sublandlord and Subtenant hereby agree thatas follows:
(i) Rent will Subtenant shall not ▇▇▇assign, mortgage, pledge, hypoth-ecate or otherwise transfer or permit the transfer of this Sublease or any interest of Subtenant in this Sub-lease, by operation of law or otherwise, or permit the use of the Sublease Premises or any part thereof by any per-sons other than Subtenant and Subtenant's employees, or sublet the Sublease Premises or any part thereof;
(ii) neither rental nor other payments hereunder shall abate by reason ▇▇ by reason of any ▇ny damage to or destruction of the Premises Sublease Premises, the Premises, or the Building or any part thereof, unless, and then only to the extent that, rent rental and such other payments actually ▇▇▇▇▇ abate under the Prime Lease with respect to the Premises.Sublease Premises on account of such event;
(iiiii) Subtenant is shall not entitled have any right to any portion of the proceeds of any award for a condemnation condemna-tion or other taking, or a conveyance in lieu of a condemnation or takingthereof, of all or any portion of the Building, the Prime Lease Space, Premises or the Sublease Premises, but Subtenant may pursue a separate action against the applicable governmental authority for an award with respect to the taking of any of Subtenant’s trade fixtures or other removable property or to Subtenant’s costs and expenses of relocation as a result of the condemnation or other taking.;
(iiiiv) except as expressly set forth in this Sublease, Subtenant is shall not entitled have any right to exercise or have Sublandlord exercise any option under the Prime Lease, including, without limitation, any option to terminate or extend the term of the Prime Lease or lease additional addi-tional space.; and
(ivv) If In the terms event of any conflict between the terms, con-ditions and provisions of the Prime Lease conflict with the terms and of this Sublease, the terms terms, conditions and provisions of this Sublease control as between Sublandlord shall, in all instances, govern and Subtenantcontrol.
(ed) It is expressly understood and agreed that Sublandlord does not assume and shall not have any of the obligations or liabilities of Landlord under the Prime Lease and that Sublandlord is not making the representations or warrantieswar-ranties, if any, made by Landlord in the Prime Lease. With respect to work, servicesser-vices, repairs, repairs and restoration or the performance of other obligations required of Landlord under the Prime Lease, Sublandlord’ 's sole obligation is with respect thereto shall be to request the same, upon written request from Subtenant, and to use reasonable efforts efforts, at Subtenant's sole cost and expense, to obtain the same from Landlord. All reasonable out-of-pocket costs and expenses, including, without limitation, attorneys’ fees, incurred by Sublandlord in attempting to enforce Landlord’s obligations and liabilities under the Prime Lease as aforesaid shall be reimbursed by Subtenant within twenty (20) days of notice from Sublandlord, and shall be deemed Rent due and payable under this Sublease. Sublandlord shall not be liable in damages damages, nor shall rent abate hereunder, for or on account of any ▇▇▇ failure by Landlord to perform the obligations and duties imposed on it under the Prime Lease. Sublandlord and Subtenant acknowledge and agree that any repair, maintenance and/or replacement obligations with respect to the Sublease Premises which are the responsibility of the Sublandlord, as tenant under the Prime Lease, shall be performed by Subtenant at Subtenant's sole cost and expense. In the event that a condition exists in the Sublease Premises that Landlord is obligated to repair under the terms of the Prime Lease, Subtenant shall so advise Sublandlord, and Sublandlord, in turn, shall promptly advise Landlord thereof. At Subtenant's request, in the event that Landlord fails to fulfill any repair or maintenance obligation under the terms of the Prime Lease with respect to the Sublease Premises, Sublandlord shall use its reasonable efforts to have Landlord fulfill such repair and maintenance obligations, all of which reasonable efforts shall at be Subtenant's sole cost and expense.
(fe) Nothing contained in this Sublease shall be construed to create privity of estate or contract between Subtenant and Landlord, except the agree-ments of Subtenant in Sections 10 and 11 hereof in favor of Landlord, and then only to the extent of the same.
Appears in 1 contract
Sources: Sublease (Spacedev Inc)
The Prime Lease. (a) This Except as expressly set forth below, this Sublease and all rights of Subtenant under this Sublease hereunder and with respect to the Sublease Premises are subject to the terms, conditions, conditions and provisions of the Prime Lease. Subtenant shall be entitled to exercise and enjoy all of the rights and benefits of Sublandlord, except for as tenant, under the Prime Lease, subject to all of the terms and provisions of the Prime Lease and except as they conflict directly with otherwise provided in this Sublease or are deemed not applicable to this Sublease pursuant to this Section 10(a)Sublease. Subtenant hereby assumes and agrees to perform faithfully and be bound by, with respect to the Sublease Premises, all of Sublandlord’s 's obligations, covenants, agreements, agreements and liabilities as tenant under the Prime Lease and all terms, conditions, provisions, provisions and restrictions contained in the Prime Lease, except to Lease arising from and after the extent set forth in the preceding sentence, and date hereof except:
(i) : for the payment of Base Rent (each as defined or used in Rental to be paid buy Sublandlord under Article 1 paragraph K of the Prime Lease);
(ii) that, except as set forth in Section 9(a) above, neither Sublandlord nor Subtenant needs to construct or install tenant improvements;
(iii) that none of the provisions in the Prime Lease allowing or purporting to allow any rights or options of lease expansion, reduction, cancellation, or extension, or any rent concessions or construction allowances, apply to this Sublease; and
(iv) Subtenant has a period of time equal to the period of time that the tenant under the Prime Lease has to respond to or otherwise cure any notices given by Landlord under the Prime Lease, less two (2) days.
(b) Without limitation of the foregoing:
(i) Except with respect to the Future Alterations described in Section 9(e) above, Subtenant will shall not make any changesalteration, alterations, additions or additions improvements in or to the Premises, Sublease Premises except as permitted under in accordance with the provisions of the Prime Lease and subject to Sublandlord’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayedLease.
(ii) If Subtenant desires to take any action, action and the Prime Lease requires would require that Sublandlord to obtain the consent of Landlord before undertaking that type an action of actionthe same kind, Sublandlord may require Subtenant to contact Landlord directly for such consent. Further, Subtenant will shall not undertake the such action without the prior written consent of Sublandlord. , not to be unreasonably withheld, and Sublandlord may condition its consent on the consent of Landlord and may require that Subtenant contact Landlord directly for its consent and that Subtenant take all other steps needed to assure that Sublandlord will have no additional obligations to Landlord under the Prime Lease as a result of such action. Within twenty (20) days of notice from Sublandlord, Subtenant will reimburse Sublandlord for all reasonable out-of-pocket costs, expenses, and attorneys’ fees that Sublandlord incurs in attempting to obtain a consent, other than the Landlord’s Consent, from Landlordbeing obtained.
(iii) Sublandlord has, with respect to Subtenant, shall also have all rights, privileges, options, reservationsreservations and remedies, and remedies granted or allowed to, or held by, Landlord under the Prime Lease, except to the extent they are inconsistent with, or modified by the provisions of this Sublease, including without limitation, all rights given to Landlord and its agents and representatives by the Prime Lease to enter the Prime Lease Space, upon reasonable notice and accompanied by a representative of Subtenant, as provided therein.
(iv) Subtenant will shall maintain all insurance of the kinds and in the amounts required to be maintained by Sublandlord under the Prime Lease. Subtenant shall furnish evidence satisfactory to Landlord and Sublandlord of the maintenance of such insurance and shall use its best efforts to obtain a written obligation on the part of each insurance company to notify Landlord and Sublandlord at least thirty (30) days prior to the cancellation of such insurance. All policies of liability insurance maintained carried by Subtenant shall name as additional insureds Sublandlord, Landlord, SVN Management, Inc., a California corporation, and Sublandlord and their respective officers, directors, members, managers, or partners, as the case may be, and the respective agents and employees mortgagees of each Landlord, as their interest may appear. Prior to taking possession of them. In additionthe Sublease Premises, Subtenant will furnish Landlord shall deliver copies of insurance certificates to both Sublandlord and Landlord, and such certificates shall state that the applicable policies cannot be canceled without at least thirty (30) days prior notice to Sublandlord with evidence of the insurance coverage in amounts that Landlord or Sublandlord may reasonably requireand Landlord.
(v) Neither Subtenant nor Sublandlord will shall not do anything or suffer or permit anything to be done that could would result in a default under the Prime Lease or permit Landlord to cancel the Prime Lease. Sublandlord agrees to hereinafter duly perform all of the terms, covenants and conditions on Sublandlord’s part to be performed as tenant under the Prime Lease except for those of same which have been undertaken by Subtenant pursuant to the terms of this Sublease, including without limitation Sublandlord’s obligation to pay Base Rent (as defined in the Prime Lease) as tenant under the Prime Lease. Sublandlord agrees that it shall not voluntarily surrender, assign (which assignment may only be made subject to this Sublease) canceled or enter into any amendment of the Prime Lease, during the Term hereof, without obtaining the prior written consent of Subtenantterminated.
(c) Sublandlord represents and warrants to Subtenant that:
(i) the Prime Lease is in full force and effect as of the date hereof, and has not been modified or amended as of that date and the copy attached hereto as Exhibit A is a complete copy of the Prime Lease and First Amendment to Lease;
(ii) Sublandlord is not now in default under any provision of the Prime Lease;
(iii) as of the Effective Date, no notice has been received of a default by Sublandlord under the terms of the Prime Lease; and
(iv) to the best of Sublandlord’s actual knowledge, Landlord is not, as of the date hereof, in default in the performance or observance of its obligations under the Prime Lease.
(d) Despite Notwithstanding anything contained in this Sublease herein or in the Prime Lease that may appear to the contrary, Sublandlord and Subtenant hereby agree thatas follows:
(i) Subtenant shall not assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Sublease or any interest of Subtenant in this Sublease, by operation of law or otherwise, or permit the use of the Sublease Premises or any part thereof by any persons other than Subtenant and Subtenant's employees, or sublet the Sublease Premises or any part thereof without the prior consent of the Sublandlord which shall not be unreasonably withheld, and any attempt to do any of the foregoing without the prior express written consent of Sublandlord shall be void and of no effect.
(ii) Neither Base Rent will not ▇▇▇▇▇ nor other payments due or coming due hereunder shall abate by reason of any damage to or destruction of t▇▇ ▇▇blease Premises, or the Premises Building or any part thereof, unless, and then only to the extent that, rent rental and such other payments actually ▇▇▇▇▇ abate under the Prime Lease with respect to the PremisesSubl▇▇▇▇ Premises on account of such event.
(iiiii) Subtenant is shall not entitled have any right to any portion of the proceeds of any award for a condemnation or other taking, or a conveyance in lieu of a condemnation or takingthereof, of all or any portion of the BuildingBuilding or the Sublease Premises, except that Subtenant shall be entitled to appear, claim, prove and receive in the condemnation proceeding such award as may be made as represents the loss or damage to Subtenant's trade fixtures and removable personal property, removal or relocation costs, and the unamortized balance of any Building Nonstandard Work or alterations installed in the Sublease Premises by Subtenant, and any incidental damages, all at Subtenant's expense.
(iv) To the extent that the Prime Lease Spaceimposes obligations on the tenant thereunder that are greater than the obligations imposed on Subtenant under this Sublease, or the Premisesobligations imposed by the Prime Lease shall be deemed to supplement the obligations imposed by this Sublease. To the extent that the Prime Lease imposes obligations on the tenant thereunder that conflict with the obligations of Subtenant under this Sublease, but Subtenant may pursue a separate action against the applicable governmental authority for an award with respect to obligations imposed by such Prime Lease shall supersede the taking of any of Subtenant’s trade fixtures or other removable property or to Subtenant’s costs and expenses of relocation as a result of the condemnation or other takingobligations imposed by this Sublease.
(iiiv) except Except as expressly set forth in this Sublease, Subtenant is not entitled to exercise or have Sublandlord exercise any option under the Prime Lease, including, without limitation, any option to terminate or extend the term of the Prime Lease or lease additional space.
(iv) If the terms of the Prime Lease conflict with the terms of this Sublease, the terms of this Sublease control as between Sublandlord and Subtenant.
(e) . Sublandlord does not assume and shall not have any of the obligations or liabilities of Landlord under the Prime Lease and Sublandlord is not making the representations or warranties, if any, made by Landlord in the Prime Lease. With respect to work, services, repairs, repairs and restoration or the performance of other obligations required of Landlord under the Prime Lease, Sublandlord’ 's sole obligation is with respect thereto shall be to request the same, upon written request from Subtenant, and to use reasonable efforts to obtain the same from Landlord. All reasonable out-of-pocket costs and expenses, including, without limitation, attorneys’ fees, incurred by Sublandlord in attempting to enforce Landlord’s obligations and liabilities under the Prime Lease as aforesaid shall be reimbursed by Subtenant within twenty (20) days of notice from Sublandlord, and shall be deemed Rent due and payable under this Sublease. Sublandlord shall not be liable in damages damages, nor shall rent abate hereunder, for or on account of for any failure by Landlord ▇▇ ▇▇ndlord to perform the obligations and duties imposed on it under the Prime Lease, except, and only to the extent that, rent abates under the Prime Lease on account of such event.
(f) Nothing contained in this Sublease shall be construed to create privity of estate or contract between Subtenant and Landlord.
Appears in 1 contract
Sources: Sublease (Ipayment Inc)
The Prime Lease. (a) This Sublease and all rights of Subtenant under this Sublease hereunder and with respect to the Premises are subject to the terms, conditions, conditions and provisions of the Prime Lease, except for the provisions of the Prime Lease except as they conflict directly with this Sublease or are deemed not applicable to this Sublease pursuant to this Section 10(a). Subtenant hereby assumes and agrees to perform faithfully and be bound by, with respect to the Premises, all of Sublandlord’s obligations, covenants, agreements, agreements and liabilities under the Prime Lease and all terms, conditions, provisions, provisions and restrictions contained in the Prime Lease, except to the extent set forth in the preceding sentence, and Lease except:
(i) for the payment of “Base Rent Rent” (each as such term is defined or used in the Prime Lease);
(ii) that, except as set forth in Section 9(a) above, neither Sublandlord nor that Subtenant needs shall not have any obligations to construct or install tenant improvements;improvements except as may be provided herein, and
(iii) that none the following provisions of the Prime Lease do not apply to this Sublease: any provisions in the Prime Lease allowing or purporting to allow any rights or options of lease expansion, reduction, cancellation, or extension, or Sublandlord any rent concessions or abatements or construction or refurbishment allowances, apply any provisions allowing Sublandlord to extend or renew the term of the Prime Lease (provided if this Sublease; and
(iv) Sublease is then in force and Subtenant has a period remains in possession of time equal the Premises, any election or right of Sublandlord to renew or extend shall not abrogate or affect Subtenant’s right to extend with Landlord as set forth in the period Consent Agreement), any provisions of time that the tenant Prime Lease granting any option to purchase or lease the Building or any other space in the Project, any right to audit any costs passed through under the Prime Lease has (including, without limitation, the provisions of Section 2.D.(4) of the Prime Lease), any right to respond receive an abatement of rent in connection with an interruption of utilities (including, without limitation, the provisions of Section 4.F. of the Prime Lease) other than as may be expressly set forth in this Sublease, any right to terminate the Lease as a result of a casualty or otherwise cure fire (including, without limitation, any notices given by Landlord provision set forth in Section 9.A. of the Prime Lease) other than as may be expressly set forth in this Sublease, any right to any allowance granted under the Prime Lease as set forth in Section 5.G. of the Prime Lease, less two any rights deriving from a default under the Prime Lease by the Landlord thereunder (2) daysincluding, without limitation, the provisions of Section 26.J. of the Prime Lease), any extension option as set forth in Section 30 of the Prime Lease, any right of first offer set forth in Section 36 of the Prime Lease, or any rights with respect to the Tanabe Building as set forth in Section 37 of the Prime Lease.
(b) Without limitation of the foregoing:
(i) Except with respect to the Future Alterations described in Section 9(e) above, Subtenant will shall not make any changes, alterations, alterations or additions in or to the Premises, Premises except as permitted under otherwise expressly provided herein or in the Prime Lease Consent Agreement; provided, however, the foregoing shall not limit or restrict the right of Subtenant to obtain the consent of Sublandlord to any such changes, alterations or additions (such obligations shall be satisfied if the Consent Agreement contains the consent of Sublandlord to such changes, alterations or additions). In connection therewith, Sublandlord and subject Subtenant acknowledge and agree that Subtenant desires to Sublandlord’s prior written consentmake certain alterations, additions and/or improvements to the Premises following its occupancy thereof. In connection with such work (hereinafter referred to as the “Subtenant Work”), such work shall be performed at the sole cost and expense of Subtenant, shall be performed by a licensed contractor which consent shall is reasonably acceptable to Sublandlord and Landlord, pursuant to plans and specifications which have been approved by both Sublandlord and Landlord (which approval will not be unreasonably withheld, conditioned withheld or delayed) and shall otherwise strictly conform to all the terms and provisions of the Prime Lease. Subtenant shall obtain the approval of both the Landlord and Sublandlord with respect to any and all aspects of the Subtenant Work prior to commencing same. Sublandlord agrees to respond to any request for approval of any Subtenant Work within a reasonable period of time.
(ii) If Subtenant desires to take any action, other action and the Prime Lease requires and/or the Consent Agreement would require that Sublandlord to obtain the consent of Landlord before undertaking that type any action of actionthe same kind, Subtenant will shall not undertake the action same without the prior written consent of Sublandlord. Sublandlord may condition its consent on the consent of Landlord being obtained and may require that Subtenant to contact Landlord directly for its consent and that Subtenant take all other steps needed to assure that Sublandlord will have no additional obligations to Landlord under the Prime Lease as a result of such action. Within twenty (20) days of notice from Sublandlord, Subtenant will reimburse Sublandlord for all reasonable out-of-pocket costs, expenses, and attorneys’ fees that Sublandlord incurs in attempting to obtain a consent, other than the Landlord’s Consent, from Landlord.;
(iii) All rights given to Landlord and its agents and representatives by the Prime Lease and/or the Consent Agreement to enter the Premises shall inure to the benefit of Sublandlord has, and their respective agents and representatives with respect to Subtenant, the Premises;
(iv) Sublandlord shall also have all other rights, and all privileges, options, reservationsreservations and remedies, and remedies granted or allowed to, or held by, Landlord under the Prime Lease, except to Lease and/or the extent they are inconsistent with, Consent Agreement or modified by the provisions of this Sublease, including without limitation, all rights given granted to Landlord and its agents and representatives by in the Prime Lease to enter the Prime Lease Space, upon reasonable notice and accompanied by a representative of Subtenant, as provided therein.Consent Agreement;
(ivv) Subtenant will shall maintain insurance of the kinds and in the amounts required to be maintained by Sublandlord under the Prime LeaseLease as well as set forth in the Consent Agreement. All policies of liability insurance maintained by Subtenant shall name as additional insureds Landlord, SVN Management, Inc., a California corporation, the Landlord and Sublandlord and their respective officers, directors, members, managers, directors or partners, as the case may be, and the respective agents and employees of each of them. In addition, Subtenant will furnish Landlord and Sublandlord with evidence of the insurance coverage in amounts that Landlord or Sublandlord may reasonably require.; and
(vvi) Neither Subtenant nor Sublandlord will shall not do anything or suffer or permit anything to be done that which could result in a default under the Prime Lease or permit Landlord to cancel the Prime LeaseLease to be canceled or terminated.
(c) Notwithstanding anything contained herein or in the Prime Lease which may appear to be to the contrary, Sublandlord and Subtenant hereby agree as follows:
(i) Subtenant shall not assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Sublease or any interest of Subtenant in this Sublease, by operation of law or otherwise, or permit the use of the Premises or any part thereof by any persons other than Subtenant and Subtenant’s employees, or sublet the Premises or any part thereof. Notwithstanding the foregoing, Subtenant shall have the right to assign this Sublease or sub-sublet all or any portion of the Premises to an entity into which Subtenant has merged or consolidated or to an entity to which substantially all of Subtenant’s assets are conveyed (collectively a “Corporate Transaction”) without the consent of Sublandlord agrees so long as such assignee or sub-subtenant has a net worth reasonably acceptable to hereinafter duly perform Sublandlord and provided that Subtenant delivers not less than thirty (30) days prior written notice to Sublandlord and Landlord, which notice shall include information satisfactory to Sublandlord and Landlord in order to determine the net worth both of the original Subtenant named herein and of the successor subtenant immediately prior to such assignment of sub-sublet. Subtenant shall otherwise have the right to assign this Sublease or sublet all or any portion of the Premises in accordance with the terms and provisions of the Prime Lease and Sublandlord shall have all of the termssame rights as the Landlord in connection therewith. Further, covenants and conditions on any rights granted to Subtenant herein to assign this Sublease or sub-sublet all or any portion of the Premises without the Sublandlord’s part consent shall be subject to be performed as tenant the rights and obligations of the Landlord under the Prime Lease except for those of same which have been undertaken by Subtenant pursuant to the terms consent thereto. In connection with any assignment of this SubleaseSublease or sub-sublet of all or any portion of the Premises as permitted Subtenant hereinabove, including without limitation Sublandlord’s obligation Subtenant shall remit to pay Base Sublandlord fifty percent (50%) of any and all Excess Rent (as defined in the Prime Lease) as tenant under the Prime Lease. Sublandlord agrees that it shall not voluntarily surrender, assign (which assignment may only be made subject to this Sublease) or enter into any amendment of the Prime Lease, during the Term hereof, without obtaining the prior written consent of Subtenantreceived by Subtenant in connection with such transfer.
(c) Sublandlord represents and warrants to Subtenant that:
(i) the Prime Lease is in full force and effect as of the date hereof, and has not been modified or amended as of that date and the copy attached hereto as Exhibit A is a complete copy of the Prime Lease and First Amendment to Lease;
(ii) Sublandlord is not now in default under any provision of the Prime Lease;
(iii) as of the Effective Date, no notice has been received of a default by Sublandlord under the terms of the Prime Lease; and
(iv) to the best of Sublandlord’s actual knowledge, Landlord is not, as of the date hereof, in default in the performance or observance of its obligations under the Prime Lease.
(d) Despite anything contained in this Sublease or in the Prime Lease to the contrary, Sublandlord and Subtenant agree that:
(i) Rent will not Neither rental nor other payments hereunder shall ▇▇▇▇▇ by reason of any damage to or destruction of the Premises Premises, or the Building or any part thereof, unless, and then only to the extent that, rent rental and such other payments actually ▇▇▇▇▇ under the Prime Lease with respect to the Premises.Premises on account of such event and Sublandlord and Subtenant acknowledge and agree that in the event monthly Rent (as defined in the Prime Lease) is abated pursuant to the provisions of Section 4.F. of the Prime Lease, then Subtenant shall be entitled to a consequent abatement of rent due under this Sublease to the extent that such monthly Rent (as defined in the Prime Lease) actually abates under the Prime Lease;
(iiiii) Sublandlord and Subtenant acknowledge and agree that in the event the Prime Lease permits the Tenant thereunder to terminate the Prime Lease in the event of any casualty to the Premises, then except as set forth hereinbelow, in no event shall Sublandlord, as the Tenant under the Prime Lease be restricted in so terminating the Prime Lease, provided, however, so long as (a) Subtenant is not entitled then in default under this Sublease after written notice and past any cure period provided under this Sublease, and (b) Subtenant then has a tangible net worth in excess of Twenty Million Dollars ($20,000,000.00) as evidenced by financial statements reasonably satisfactory to any portion of Sublandlord, in no event shall Sublandlord, as the proceeds of any award for a condemnation or other takingTenant under the Prime Lease, or a conveyance in lieu of a condemnation or taking, of all or any portion of the Building, elect to so terminate the Prime Lease Spacewithout obtaining the consent or approval from Subtenant as to such termination. Notwithstanding the foregoing, in no event shall the right of Sublandlord to elect to so terminate the Prime Lease be limited or restricted in the Premises, but event Sublandlord would have the right to terminate the Prime Lease as set forth in paragraph 9.A thereof in the circumstance where the time to restore any such casualty would exceed two (2) months and the restoration work would begin during the last twelve (12) months of the Term of the Prime Lease if (a) Sublandlord provides prior notice of such election to Subtenant may pursue and (b) such termination right is conditioned upon Subtenant having a separate action against written agreement with Landlord to continue in possession and occupy the applicable governmental authority for an award with respect to the taking of any Premises without interruption through exercise of Subtenant’s trade fixtures or other removable property or option to Subtenant’s costs and expenses of relocation as a result of the condemnation or other taking.
(iii) except as expressly extend set forth in this Sublease, the Consent Agreement;
(iv) Subtenant is shall not entitled have any right to exercise or have Sublandlord exercise any option under the Prime Lease, including, without limitation, any option to terminate or extend the term of the Prime Lease or lease additional space.space (provided, Sublandlord and Subtenant acknowledge and agree that the foregoing shall not limit or restrict any such options and rights that may be granted to Subtenant directly from Landlord in the Consent Agreement so long as Sublandlord incurs no liability or obligation in connection therewith); and
(ivv) If In the terms event of any conflict between the terms, conditions and provisions of the Prime Lease conflict with the terms and of this Sublease, the terms terms, conditions and provisions of this Sublease control shall, in all instances, govern and control. In the event of any conflict between the terms, conditions and provisions of this Sublease and the Consent Agreement, as between Sublandlord and Subtenant, the terms, conditions and provisions of this Sublease shall, in all instances, govern and control; provided, however, Sublandlord and Subtenant acknowledge and agree that as between Landlord and Subtenant, the terms, conditions and provisions of the Consent Agreement shall, in all instances, govern and control.
(ed) It is expressly understood and agreed that Sublandlord does not assume and shall not have any of the obligations or liabilities of Landlord under the Prime Lease and that Sublandlord is not making the representations representations, warranties or warrantiesindemnifications, if any, made by Landlord in the Prime Lease. With respect to work, services, repairs, repairs and restoration or the performance of other obligations required of Landlord under the Prime Lease, Sublandlord’ ’s sole obligation is with respect thereto shall be to request the same, upon written request from Subtenant, and to use reasonable efforts efforts, at Subtenant’s sole cost and expense, to obtain the same from Landlord. All reasonable out-of-pocket costs and expenses, including, without limitation, attorneys’ fees, incurred by Sublandlord in attempting to enforce Landlord’s obligations and liabilities under the Prime Lease as aforesaid shall be reimbursed by Subtenant within twenty (20) days of notice from Sublandlord, and shall be deemed Rent due and payable under this Sublease. Sublandlord shall not be liable in damages damages, nor shall rent ▇▇▇▇▇ hereunder, for or on account of any failure by Landlord to perform the obligations and duties imposed on it under the Prime Lease. Sublandlord and Subtenant acknowledge and agree that any repair, maintenance and/or replacement obligations with respect to the Premises which are the responsibility of the Sublandlord, as tenant under the Prime Lease, shall be performed by Subtenant at Subtenant’s sole cost and expense. In the event that a condition exists in the Premises that Landlord is obligated to repair under the terms of the Prime Lease, Subtenant shall so advise Sublandlord, and Sublandlord, in turn, shall promptly advise Landlord thereof. At Subtenant’s request, in the event that Landlord fails to fulfill any repair or maintenance obligation under the terms of the Prime Lease with respect to the Premises, Sublandlord shall use its reasonable efforts to have Landlord fulfill such repair and maintenance obligations, all of which reasonable efforts shall at be Subtenant’s sole cost and expense.
(fe) Nothing Except for the Consent Agreement nothing contained in this Sublease shall be construed to create privity of estate or contract between Subtenant and Landlord, except the agreements of Subtenant in Sections 10 and 11 hereof in favor of Landlord, and then only to the extent of the same.
Appears in 1 contract
Sources: Sublease (Nuvasive Inc)
The Prime Lease. (a) Sublandlord hereby represents and warrants that as of the date this Sublease is executed by Sublandlord, (i) Sublandlord has not received any notice of default under the Prime Lease from Landlord that remains uncured, and (ii) Sublandlord has not given a notice of default to Landlord under the terms of the Prime Lease that remains uncured. This Sublease and all rights of Subtenant under this Sublease hereunder and with respect to the Premises are subject to the terms, conditions, conditions and provisions of the Prime Lease, except for the provisions of the Prime Lease except as they conflict directly with this Sublease or are deemed not applicable to this Sublease pursuant to this Section 10(a). Subtenant hereby assumes and agrees to perform faithfully and be bound by, with respect to the Premises, all of Sublandlord’s 's obligations, covenants, agreements, agreements and liabilities under the Prime Lease and all terms, conditions, provisions, provisions and restrictions contained in the Prime Lease, except to the extent set forth in the preceding sentence, and Lease except:
(i) for the payment of "Monthly Base Rent Rent" (each as such term is defined or used in the Prime Lease);
(ii) that, except as set forth in Section 9(a) above, neither Sublandlord nor that Subtenant needs shall not have any obligations to construct or install tenant improvements;improvements except as may be provided herein; and
(iii) that none the following provisions of the Prime Lease do not apply to this Sublease: any provisions in the Prime Lease allowing or purporting to allow any rights or options of lease expansion, reduction, cancellation, or extension, or Sublandlord any rent concessions or abatements or construction allowances, apply any provisions allowing Sublandlord to this Sublease; and
(iv) Subtenant has a period extend or renew the term of time equal to the period of time that the tenant under the Prime Lease has (including, without limitation, Paragraph 3(b) of the Prime Lease), any provisions of the Prime Lease providing for any representations and/or warranties with respect to respond Hazardous Materials (including, without limitation, Paragraph 8(d) of the Prime Lease), any provisions relating to warranties regarding improvements within the Premises (including, without limitation, Paragraph 14(d) of the Prime Lease), any rights granted to terminate the Prime Lease due to an interruption in utilities (including, without limitation, Paragraph 17 of the Prime Lease, any provisions permitting any right of self-help, offset or otherwise cure termination in the event of any notices given default by Landlord under the terms and provisions of the Prime Lease (including, without limitation, the provisions of the last paragraph of Paragraph 23 of the Prime Lease), less two any rights to install signage without obtaining the consent of the Sublandlord and/or Landlord (2including, without limitation, Paragraph 34 of the Prime Lease), any option to purchase the Building or other real property (including, without limitation, Paragraphs 41, 43 and 44 of the Prime Lease), any option to lease additional premises (including, without limitation, Paragraph 42 of the Prime Lease) daysand any right to terminate the Prime Lease (including, without limitation, Paragraph 47 of the Prime Lease), any rights granted for the use of the roof of the Building (including, without limitation, Paragraph 48 of the Prime Lease), any right to install a generator (including, without limitation, Paragraph 49 of the Prime Lease) and any provisions of the Work Letter Agreement attached to the Prime Lease as Exhibit C thereto.
(b) Without limitation of the foregoing:
(i) Except with respect to the Future Alterations described in Section 9(e) above, Subtenant will shall not make any changes, alterations, alterations or additions in or to the Premises, Premises except as permitted under otherwise expressly provided herein. In connection therewith, Sublandlord and Subtenant acknowledge and agree that Subtenant may desire to make certain alterations, additions and/or improvements to the Premises following its occupancy thereof. In connection with such work (hereinafter referred to as the "Subtenant Work"), such work shall be performed at the sole cost and expense of Subtenant and shall strictly conform to all the terms and provisions of the Prime Lease. In connection with Subtenant's Work, Sublandlord and Subtenant acknowledge and agree that attached hereto as Exhibit "C" is a floor plan layout of the Premises which depicts the work which Subtenant desires to perform in the Premises. Sublandlord hereby consents to such floor plan layout, provided, however (i) such consent shall not limit or restrict the obligation of Subtenant to obtain the consent of Landlord and Sublandlord to all other aspects of such work, including, without limitation, the plans and specifications therefor, the contractors performing same and any other item which is required to be approved by Landlord and/or Sublandlord pursuant to the terms and provisions of the Prime Lease and/or this Sublease (and Subtenant acknowledges and agrees that such work shall require such consent), (ii) Subtenant shall be required to perform all such work in strict compliance with the terms and provisions of the Prime Lease and subject this Sublease, (iii) all such work shall be done at Subtenant's sole cost and expense, and (iv) Subtenant hereby covenants and agrees that Subtenant shall be responsible, at Subtenant's sole cost and expense, to remove such items of Subtenant's Work as reasonably required by Landlord and/or Sublandlord (as to Sublandlord’s , Sublandlord hereby covenants and agrees that within a reasonable period of time following Sublandlord's review of the construction plans and specifications for Subtenant's Work, Sublandlord shall notify Subtenant of those items of Subtenant's Work which shall be required to be removed at the end of the term of this Sublease) and Subtenant shall also be responsible to repair any damage to the Premises arising as a result of the removal of same. Subtenant shall obtain the written approval of both the Landlord and Sublandlord with respect to any and all aspects of the Subtenant Work prior written consent, which consent to commencing same. Sublandlord hereby covenants and agrees that it shall not unreasonably withhold, condition or delay its consent to any such alterations, additions and/or improvements to the Premises desired to be unreasonably withheldmade by Subtenant. Notwithstanding anything in this Sublease to the contrary, conditioned Subtenant hereby acknowledges and agrees that in no event shall it have the right to install any access way or delayed.doorway from the Storage Space to the lobby of the Building;
(ii) If Subtenant desires to take any action, other action and the Prime Lease requires would require that Sublandlord to obtain the consent of Landlord before undertaking that type any action of actionthe same kind, Subtenant will shall not undertake the action same without the prior written consent of Sublandlord. Sublandlord may condition its consent on the consent of Landlord being obtained and may require that Subtenant to contact Landlord directly for its consent and that Subtenant take all other steps needed to assure that Sublandlord will have no additional obligations to Landlord under the Prime Lease as a result of such action. Within twenty (20) days of notice from Sublandlord, Subtenant will reimburse Sublandlord for all reasonable out-of-pocket costs, expenses, and attorneys’ fees that Sublandlord incurs in attempting to obtain a consent, other than the Landlord’s Consent, from Landlord.;
(iii) Sublandlord has, with respect to Subtenant, all rights, privileges, options, reservations, and remedies granted or allowed to, or held by, Landlord under the Prime Lease, except to the extent they are inconsistent with, or modified by the provisions of this Sublease, including without limitation, all All rights given to Landlord and its agents and representatives by the Prime Lease to enter the Prime Lease SpacePremises shall inure to the benefit of Sublandlord and their respective agents and representatives with respect to the Premises, upon reasonable notice and accompanied by a representative of SubtenantSubtenant shall also have all the rights, and all privileges, options, reservations and remedies, granted or allowed to, or held by, Sublandlord, as provided therein.Tenant, under the Prime Lease, all of which rights, privileges, options, reservations and remedies in favor of Subtenant shall be limited as set forth in this Sublease;
(iv) Sublandlord shall also have all other rights, and all privileges, options, reservations and remedies, granted or allowed to, or held by, Landlord under the Prime Lease;
(v) Subtenant will shall maintain insurance of the kinds and in the amounts required to be maintained by Sublandlord under the Prime Lease. All policies of liability insurance maintained by Subtenant shall name as additional insureds Landlord, SVN Management, Inc., a California corporation, the Landlord and Sublandlord and their respective officers, directors, members, managers, directors or partners, as the case may be, and the respective agents and employees of each of them. In addition, Subtenant will furnish Landlord and Sublandlord with evidence of the insurance coverage in amounts that Landlord or Sublandlord may reasonably require.; and
(vvi) Neither Subtenant nor Sublandlord will shall not do anything or suffer or permit anything to be done that which could result in a default under the Prime Lease or permit Landlord to cancel the Prime Lease. Sublandlord agrees to hereinafter duly perform all of the terms, covenants and conditions on Sublandlord’s part to be performed as tenant under the Prime Lease except for those of same which have been undertaken by Subtenant pursuant to the terms of this Sublease, including without limitation Sublandlord’s obligation to pay Base Rent (as defined in the Prime Lease) as tenant under the Prime Lease. Sublandlord agrees that it shall not voluntarily surrender, assign (which assignment may only be made subject to this Sublease) canceled or enter into any amendment of the Prime Lease, during the Term hereof, without obtaining the prior written consent of Subtenantterminated.
(c) Sublandlord represents and warrants to Subtenant that:
(i) the Prime Lease is in full force and effect as of the date hereof, and has not been modified or amended as of that date and the copy attached hereto as Exhibit A is a complete copy of the Prime Lease and First Amendment to Lease;
(ii) Sublandlord is not now in default under any provision of the Prime Lease;
(iii) as of the Effective Date, no notice has been received of a default by Sublandlord under the terms of the Prime Lease; and
(iv) to the best of Sublandlord’s actual knowledge, Landlord is not, as of the date hereof, in default in the performance or observance of its obligations under the Prime Lease.
(d) Despite Notwithstanding anything contained in this Sublease herein or in the Prime Lease which may appear to be to the contrary, Sublandlord and Subtenant hereby agree thatas follows:
(i) Rent will not ▇▇▇▇▇ Subtenant shall not, without the prior written consent of Sublandlord, assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Sublease or any interest of Subtenant in this Sublease, by reason operation of any damage to law or destruction otherwise, or permit the use of the Premises unlessor any part thereof by any persons other than Subtenant and Subtenant's employees, and then only or sublet the Premises or any part thereof. Sublandlord shall not unreasonably withhold, condition or delay its consent to the extent that, rent and other payments actually ▇▇▇▇▇ under the Prime Lease with respect to the Premises.
any such transfer if (ii1) Subtenant is not entitled to then in default under any portion of the proceeds of any award for a condemnation or other taking, or a conveyance in lieu of a condemnation or taking, of all or any portion of the Building, the Prime Lease Space, or the Premises, but Subtenant may pursue a separate action against the applicable governmental authority for an award with respect to the taking of any of Subtenant’s trade fixtures or other removable property or to Subtenant’s costs terms and expenses of relocation as a result of the condemnation or other taking.
(iii) except as expressly set forth in this Sublease, Subtenant is not entitled to exercise or have Sublandlord exercise any option under the Prime Lease, including, without limitation, any option to terminate or extend the term of the Prime Lease or lease additional space.
(iv) If the terms of the Prime Lease conflict with the terms conditions of this Sublease, (2) the terms of this Sublease control as between Sublandlord and Subtenant.
proposed transferee is sufficiently creditworthy, in Sublandlord's sole determination, (e3) Sublandlord does not assume the obligations or liabilities of Landlord under the Prime Lease and proposed transferee is not making the representations or warranties, if any, made by Landlord in the Prime Lease. With respect to work, services, repairs, and restoration or the performance a competitor of other obligations required of Landlord under the Prime Lease, Sublandlord’ sole obligation is to request the same, upon written request from Subtenant, and to use reasonable efforts to obtain the same from Landlord. All reasonable out-of-pocket costs and expenses, including, without limitation, attorneys’ fees, incurred by Sublandlord in attempting to enforce Landlord’s obligations and liabilities under the Prime Lease as aforesaid shall be reimbursed by Subtenant within twenty (20) days of notice from Sublandlord, and shall be deemed Rent due and payable under this Sublease. Sublandlord shall not be liable in damages for or on account of any failure by Landlord to perform the obligations and duties imposed on it under the Prime Lease.
(f) Nothing contained in this Sublease shall be construed to create privity of estate or contract between Subtenant and Landlord.
Appears in 1 contract
Sources: Sublease (Mai Systems Corp)
The Prime Lease. (a) This Sublease and all rights of Subtenant under this Sublease hereunder and with respect to the Subleased Premises are subject and subordinate to the terms, conditions, conditions and provisions of the Prime Lease, except for the provisions of the Prime Lease except as they conflict directly with this Sublease or are deemed not applicable to this Sublease pursuant to this Section 10(a). Subtenant hereby assumes and agrees to perform faithfully and be bound by, with respect to the Subleased Premises, all of Sublandlord’s obligations, covenants, agreements, agreements and liabilities under the Prime Lease and all terms, conditions, provisions, provisions and restrictions contained in the Prime Lease, except to the extent set forth in the preceding sentence, and Lease except:
(i) for the payment of Base Rent (each Rent, Operating Expenses, and Real Estate Taxes in amounts other than as defined or used set forth in the Prime Lease)this Sublease;
(ii) that, except as set forth in Section 9(a) above, neither Sublandlord nor that Subtenant needs shall not have any obligation or right to construct or install tenant improvements;leasehold improvements except as may be expressly provided herein; and
(iii) that none the following provisions of the Prime Lease do not apply to this Sublease: (A) any provisions in the Prime Lease allowing or purporting to allow any rights or options of lease expansion, reduction, cancellation, or extension, or Sublandlord any rent concessions or abatements or construction allowances, apply to this Sublease; and
(ivB) Subtenant has a period any provisions of time equal to the period of time that the tenant under the Prime Lease has to respond to granting Sublandlord any expansion options, renewal options, termination options, or otherwise cure rights of first offer or first refusal, and (C) any notices given by Landlord under provisions in the Prime Lease, less two (2) daysLease that relate solely to the portion of the Master Premises that does not include the Subleased Premises or any other rights granted to Subtenant hereunder.
(b) Without limitation of the foregoing:
(i) Except with respect to the Future Alterations described in Section 9(e) above, Subtenant will shall not make any changes, alterations, alterations or additions in or to the Subleased Premises, except the Subtenant Work or as permitted under otherwise expressly provided herein, without the Prime Lease and subject to Sublandlord’s prior written consentconsent of Sublandlord, which consent shall not be unreasonably withheld, conditioned conditioned, or delayed.;
(ii) If Subtenant desires to take any action, other action and the Prime Lease requires would require that Sublandlord to obtain the consent of Landlord before undertaking that type any action of actionthe same kind, Subtenant will shall not undertake the action same without the prior written consent of Sublandlord. Sublandlord may condition its consent on the consent of Landlord being obtained and may require that Subtenant to contact Landlord directly for its consent and that Subtenant take all other steps needed to assure that Sublandlord will have no additional obligations to Landlord under the Prime Lease as a result of such action. Within twenty (20) days of notice from Sublandlord, Subtenant will reimburse Sublandlord for all reasonable out-of-pocket costs, expenses, and attorneys’ fees that Sublandlord incurs in attempting to obtain a consent, other than the Landlord’s Consent, from Landlord.;
(iii) Sublandlord has, with respect to Subtenant, all rights, privileges, options, reservations, and remedies granted or allowed to, or held by, Landlord under the Prime Lease, except to the extent they are inconsistent with, or modified by the provisions of this Sublease, including without limitation, all All rights given to Landlord and its agents and representatives by the Prime Lease to enter the Prime Lease Space, upon reasonable notice Master Premises shall inure to the benefit of Sublandlord and accompanied by a representative of Subtenant, as provided therein.its agents and representatives with respect to the Subleased Premises;
(iv) Sublandlord shall also have all other rights, privileges, options, reservations and remedies granted or allowed to or held by Landlord under the Prime Lease;
(v) With respect to the insurance required to be maintained under clause (2) of Section 13.3(a) of the Prime Lease, Subtenant’s obligations shall be limited to maintaining all-risk property insurance for the full replacement value of the Furniture and Subtenant’s fixtures and personal property located within the Subleased Premises (“Subtenant’s Property Insurance”). Subtenant will shall otherwise maintain insurance of the kinds and in the amounts required to be maintained by Sublandlord under the Prime Lease. All policies of liability insurance maintained by Subtenant shall name as additional insureds Landlord, SVN Management, Inc., a California corporation, Landlord and Sublandlord and their respective officers, directors, members, managers, directors or partners, as the case may be, and the respective agents and employees of each of them. In additionAll policies of insurance maintained by Subtenant in connection with this Sublease or the Subleased Premises will be written as primary policy coverage and not contributing to or in excess of any coverage which Landlord and/or Sublandlord may carry. Upon the earlier of the Commencement Date or Subtenant’s entry into the Subleased Premises to perform the Subtenant Work and thereafter not later than thirty (30) days before any scheduled date of expiration of such insurance, Subtenant will shall furnish Landlord and Sublandlord with evidence certificates of insurance evidencing that Subtenant is carrying the insurance coverage required to be carried by Subtenant hereunder. If Sublandlord elects to reconstruct the Subleased Premises following a casualty in amounts that Landlord or Sublandlord may reasonably require.accordance with the Prime Lease, Subtenant shall use any available proceeds of Subtenant’s Property Insurance to reconstruct, repair, and replace Subtenant’s fixtures and personal property located within the Subleased Premises;
(vvi) Neither Subtenant nor Sublandlord will shall not do anything or suffer or permit anything to be done that which could result in a default under the Prime Lease or permit Landlord to cancel the Prime Lease. Sublandlord agrees to hereinafter duly perform all of the terms, covenants and conditions on Sublandlord’s part to be performed as tenant under the Prime Lease except for those to be cancelled or terminated; and
(vii) Sublandlord shall promptly deliver to Subtenant any notice of same which have been undertaken default received by Sublandlord from Landlord; and Subtenant shall promptly deliver to Sublandlord any notice of default received by Subtenant pursuant to the terms of this Sublease, including without limitation Sublandlord’s obligation to pay Base Rent (as defined in the Prime Lease) as tenant under the Prime Lease. Sublandlord agrees that it shall not voluntarily surrender, assign (which assignment may only be made subject to this Sublease) or enter into any amendment of the Prime Lease, during the Term hereof, without obtaining the prior written consent of Subtenantfrom Landlord.
(c) Sublandlord represents and warrants to Subtenant that:
(i) the Prime Lease is in full force and effect as of the date hereof, and has not been modified or amended as of that date and the copy attached hereto as Exhibit A is a complete copy of the Prime Lease and First Amendment to Lease;
(ii) Sublandlord is not now in default under any provision of the Prime Lease;
(iii) as of the Effective Date, no notice has been received of a default by Sublandlord under the terms of the Prime Lease; and
(iv) to the best of Sublandlord’s actual knowledge, Landlord is not, as of the date hereof, in default in the performance or observance of its obligations under the Prime Lease.
(d) Despite Notwithstanding anything contained in this Sublease herein or in the Prime Lease that may appear to be to the contrary, Sublandlord and Subtenant hereby agree thatas follows:
(i) Rent will Subtenant shall not assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Sublease or any interest of Subtenant in this Sublease, by operation of law or otherwise, or permit the use of the Subleased Premises or any part thereof by any persons other than Subtenant and Subtenant’s employees, or sublet the Subleased Premises or any part thereof, without the prior written consent of Landlord and Sublandlord (which consent of Sublandlord shall not be unreasonably withheld, conditioned or delayed);
(ii) Neither rental nor other payments hereunder shall ▇▇▇▇▇ by reason of any damage to or destruction of the Subleased Premises, the Master Premises or the Building or any part thereof, unless, and then only to the extent that, rent rental and such other payments actually ▇▇▇▇▇ under the Prime Lease with respect to the Premises.Subleased Premises on account of such event;
(iiiii) Subtenant is shall not entitled have any right to any portion of the proceeds of any award for a condemnation or other taking, or a conveyance in lieu of a condemnation or takingthereof, of all or any portion of the Building, the Prime Lease Space, Master Premises or the Subleased Premises, but Subtenant may pursue a separate action against the applicable governmental authority for an award with respect to the taking of any of Subtenant’s trade fixtures or other removable property or to Subtenant’s costs and expenses of relocation as a result of the condemnation or other taking.;
(iiiiv) except as expressly set forth in this Sublease, Subtenant is shall not entitled have any right to exercise or have Sublandlord exercise any option under the Prime Lease, including, without limitation, any option to terminate or extend the term of the Prime Lease or lease additional space.; and
(ivv) If Subject to Section 6(a) above, as between Sublandlord and Subtenant, in the terms event of any conflict between the terms, conditions and provisions of the Prime Lease conflict with the terms and of this Sublease, the terms terms, conditions and provisions of this Sublease control as between Sublandlord shall, in all instances, govern and Subtenantcontrol.
(ed) It is expressly understood and agreed that Sublandlord does not assume and shall not have any of the obligations or liabilities of Landlord under the Prime Lease and that Sublandlord is not making the representations or warranties, if any, made by Landlord in the Prime Lease. With respect to work, services, repairs, repairs and restoration or the performance of other obligations required of Landlord under the Prime Lease, Sublandlord’ ’s sole obligation is with respect thereto shall be to request the same, upon written request from Subtenant, and to use reasonable efforts to obtain the same from Landlord. All Landlord (including taking such reasonable out-of-pocket costs and expenses, including, without limitation, attorneys’ fees, incurred by Sublandlord in attempting actions as may necessary to enforce LandlordSublandlord’s obligations and liabilities rights under the Prime Lease as aforesaid shall be reimbursed by Subtenant within twenty (20) days of notice from Lease), at no expense to Sublandlord, and shall be deemed Rent due and payable under this Sublease. Sublandlord shall not be liable in damages damages, nor shall rent ▇▇▇▇▇ hereunder, for or on account of any failure by Landlord to perform the obligations and duties imposed on it under the Prime Lease.
(fe) Nothing contained in this Sublease shall be construed to create privity of estate or contract between Subtenant and Landlord, except the agreements of Subtenant in Sections 10 and 11 hereof in favor of Landlord, and then only to the extent of the same.
Appears in 1 contract
Sources: Sublease (Capitalsource Inc)
The Prime Lease. (a) This Sublease and all rights of Subtenant under this Sublease hereunder and with respect to the Subleased Premises are subject and subordinate to the terms, conditions, conditions and provisions of the Prime Lease, except for the provisions of the Prime Lease except as they conflict directly with this Sublease or are deemed not applicable to this Sublease pursuant to this Section 10(a). Subtenant hereby assumes and agrees to perform faithfully and be bound by, with respect to the Subleased Premises, all of Sublandlord’s obligations, covenants, agreements, agreements and liabilities under the Prime Lease and all terms, conditions, provisions, provisions and restrictions contained in the Prime Lease, except to the extent set forth in the preceding sentence, and Lease except:
(i) for the payment of Base Rent (each rent in amounts other than as defined or used set forth in the Prime Lease);this Sublease; and
(ii) that, except as set forth in Section 9(a) above, neither Sublandlord nor Subtenant needs to construct or install tenant improvements;
(iii) that none the following provisions of the Prime Lease do not apply to this Sublease: any provisions in the Prime Lease allowing or purporting to allow any rights or options of lease expansion, reduction, cancellation, or extension, or Sublandlord any rent concessions or abatements (other than abatements based upon future events, such as casualty, condemnation or failure to provide utilities or services) or construction allowances, apply to this Sublease; and
(iv) Subtenant has a period allowances and any provisions of time equal to the period of time that the tenant under the Prime Lease has to respond to granting Sublandlord any expansion options, renewal options, termination options, or otherwise cure any notices given by Landlord under the Prime Lease, less two (2) daysrights of first offer or first refusal.
(b) Without limitation of the foregoing:
(i) Except Subtenant shall not have any obligation or right to construct or install leasehold improvements, alterations or additions without the prior written consent of Landlord as specified in the Prime Lease and the prior written consent of Sublandlord, which approval of Sublandlord shall not be unreasonably withheld, conditioned or delayed. Sublandlord agrees to use commercially reasonable efforts to assist Subtenant in obtaining any such approval from Landlord with respect to any matter that has been approved by Sublandlord. Notwithstanding the foregoing, provided Tenant gives Landlord and Sublandlord prior written notice, Tenant may install in the Subleased Premises, without obtaining Landlord’s or Sublandlord’s prior written consent the following (the “Cosmetic Alterations”): (i) painting, carpeting and wallcoverings, and (ii) minor, nonstructural Alterations of a decorative nature, except that with respect to the Future Alterations described items set forth in Section 9(ethe foregoing clause (ii) abovethe value of such improvements (as reasonably determined by Landlord or Sublandlord) shall be less than Fifteen Thousand Dollars ($15,000.00) for each alteration, and such improvements shall not require a building permit;
(ii) If Subtenant will not make desires to take any changes, alterations, or additions in or to the Premises, except as permitted under other action and the Prime Lease and subject to Sublandlord’s would require that Sublandlord obtain the consent of Landlord before undertaking any action of the same kind, Subtenant shall not undertake the same without the prior written consentconsent of Sublandlord, which consent shall not be unreasonably withheld, conditioned or delayed.
(ii) If Subtenant desires delayed with respect to take any action, and matters as to which Landlord is required by the Prime Lease requires Sublandlord not to obtain the consent of Landlord before undertaking that type of action, Subtenant will not undertake the action without the prior written consent of Sublandlordunreasonably withhold its consent. Sublandlord may condition its consent on the consent of Landlord and may require that Subtenant contact Landlord directly for its consent and that Subtenant take all other steps needed to assure that Sublandlord will have no additional obligations to Landlord under the Prime Lease as a result of such action. Within twenty (20) days of notice from Sublandlord, Subtenant will reimburse Sublandlord for all reasonable out-of-pocket costs, expenses, and attorneys’ fees that Sublandlord incurs in attempting to obtain a consent, other than the Landlord’s Consent, from Landlord.being obtained;
(iii) Sublandlord has, with respect to Subtenant, all rights, privileges, options, reservations, and remedies granted or allowed to, or held by, Landlord under the Prime Lease, except to the extent they are inconsistent with, or modified by the provisions of this Sublease, including without limitation, all All rights given to Landlord and its agents and representatives by the Prime Lease to enter the Prime Lease Space, upon reasonable notice Master Premises shall inure to the benefit of Sublandlord and accompanied by a representative of Subtenant, as provided therein.its agents and representatives with respect to the Subleased Premises;
(iv) Sublandlord shall also have all other rights, privileges, options, reservations and remedies granted or allowed to or held by Landlord under the Prime Lease;
(v) Subtenant will shall maintain insurance of the kinds and in the amounts required to be maintained by Sublandlord under the Prime Lease. All policies of liability insurance maintained by Subtenant shall name as additional insureds Landlord, SVN Management, Inc., a California corporation, Landlord and Sublandlord and their respective officers, directors, members, managers, directors or partners, as the case may be, and the respective agents and employees of each of them. In additionUpon Sublandlord’s request, Subtenant will shall furnish Landlord and Sublandlord with evidence certificates of insurance evidencing that Subtenant is carrying the insurance coverage in amounts that Landlord or Sublandlord may reasonably require.required to be carried by Subtenant hereunder; and
(vvi) Neither Subtenant nor Sublandlord will shall not do anything or suffer or permit anything to be done that which could result in a default under the Prime Lease or permit Landlord to cancel the Prime Lease. Sublandlord agrees to hereinafter duly perform all of the terms, covenants and conditions on Sublandlord’s part to be performed as tenant under the Prime Lease except for those of same which have been undertaken by Subtenant pursuant to the terms of this Sublease, including without limitation Sublandlord’s obligation to pay Base Rent (as defined in the Prime Lease) as tenant under the Prime Lease. Sublandlord agrees that it shall not voluntarily surrender, assign (which assignment may only be made subject to this Sublease) cancelled or enter into any amendment of the Prime Lease, during the Term hereof, without obtaining the prior written consent of Subtenantterminated.
(c) Sublandlord represents and warrants to Subtenant that:
(i) the Prime Lease is in full force and effect as of the date hereof, and has not been modified or amended as of that date and the copy attached hereto as Exhibit A is a complete copy of the Prime Lease and First Amendment to Lease;
(ii) Sublandlord is not now in default under any provision of the Prime Lease;
(iii) as of the Effective Date, no notice has been received of a default by Sublandlord under the terms of the Prime Lease; and
(iv) to the best of Sublandlord’s actual knowledge, Landlord is not, as of the date hereof, in default in the performance or observance of its obligations under the Prime Lease.
(d) Despite Notwithstanding anything contained in this Sublease herein or in the Prime Lease that may appear to be to the contrary, Sublandlord and Subtenant hereby agree thatas follows:
(i) Rent will Subtenant shall not assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Sublease or any interest of Subtenant in this Sublease, by operation of law or otherwise, or permit the use of the Subleased Premises or any part thereof by any persons other than Subtenant and Subtenant’s employees, or sublet the Subleased Premises or any part thereof, without the prior written consent of Prime Landlord and Sublandlord (which consent of Sublandlord shall not be unreasonably withheld, conditioned or delayed);
(ii) Neither rental nor other payments hereunder shall ▇▇▇▇▇ by reason of any damage to or destruction of the Premises Subleased Premises, the Master Premises, or the Building or any part thereof, or any interruption in the supply of utilities or services, unless, and then only to the extent that, rent rental and such other payments actually ▇▇▇▇▇ under the Prime Lease with respect to the Premises.Subleased Premises on account of such event;
(iiiii) Subtenant is shall not entitled have any right to any portion of the proceeds of any award for a condemnation or other taking, or a conveyance in lieu of a condemnation or takingthereof, of all or any portion of the Building, the Prime Lease Space, Master Premises or the Subleased Premises, but Subtenant may pursue a separate action against the applicable governmental authority for an award with respect to the taking of any of Subtenant’s trade fixtures or other removable property or to Subtenant’s costs and expenses of relocation as a result of the condemnation or other taking.;
(iiiiv) except as expressly set forth in this Sublease, Subtenant is shall not entitled have any right to exercise or have Sublandlord exercise any option under the Prime Lease, including, without limitation, any option to terminate or extend the term of the Prime Lease or lease additional space.; and
(ivv) If Subject to Section 6(a) above, as between Sublandlord and Subtenant, in the terms event of any conflict between the terms, conditions and provisions of the Prime Lease conflict with the terms and of this Sublease, the terms terms, conditions and provisions of this Sublease control as between Sublandlord shall, in all instances, govern and Subtenantcontrol.
(ed) It is expressly understood and agreed that Sublandlord does not assume and shall not have any of the obligations or liabilities of Landlord under the Prime Lease and that Sublandlord is not making the representations or warranties, if any, made by Landlord in the Prime Lease. With respect to work, services, repairs, repairs and restoration or the performance of other obligations required of Landlord under the Prime Lease, Sublandlord’ ’s sole obligation is with respect thereto shall be to request the same, upon written request from Subtenant, and to use reasonable efforts to obtain the same from Landlord. All reasonable out-of-pocket costs and expenses, including, without limitation, attorneys’ fees, incurred by Sublandlord in attempting to enforce Landlord’s obligations and liabilities under the Prime Lease as aforesaid shall be reimbursed by Subtenant within twenty (20) days of notice from Sublandlord, and shall be deemed Rent due and payable under this Sublease. Sublandlord shall not be liable in damages damages, nor shall rent ▇▇▇▇▇ hereunder (except as provided in Section 6(c)(ii) above), for or on account of any failure by Landlord to perform the obligations and duties imposed on it under the Prime Lease.
(fe) Nothing contained in this Sublease shall be construed to create privity of estate or contract between Subtenant and Landlord, except the agreements of Subtenant in Sections 10 and 11 hereof in favor of Landlord, and then only to the extent of the same.
Appears in 1 contract
Sources: Sublease (Capitalsource Inc)
The Prime Lease. (a) This Sublease and Sublessee shall comply with all rights obligations of Subtenant “Lessee” under this Sublease and the Prime Lease with respect to the Subleased Premises are subject to the terms, conditions, and provisions Sublessee’s use of the Prime Lease, except for the provisions of the Prime Lease except as they conflict directly with this Sublease or are deemed not applicable to this Sublease pursuant to this Section 10(a). Subtenant assumes and agrees to perform faithfully and be bound by, with respect to the Premises, all of Sublandlord’s obligations, covenants, agreements, and liabilities under the Prime Lease and all terms, conditions, provisions, and restrictions contained in the Prime Lease, except to the extent set forth in the preceding sentence, and except:
(i) for the payment of Base Rent (each as defined or used in the Prime Lease)common areas;
(ii) that, except as set forth in Section 9(a) above, neither Sublandlord nor Subtenant needs to construct or install tenant improvements;
(iii) that none of the provisions in the Prime Lease allowing or purporting to allow any rights or options of lease expansion, reduction, cancellation, or extension, or any rent concessions or construction allowances, apply to this Sublease; and
(iv) Subtenant has a period of time equal to the period of time that the tenant under the Prime Lease has to respond to or otherwise cure any notices given by Landlord under the Prime Lease, less two (2) days.
(b) Without limitation of the foregoing:
(i) Except with respect to the Future Alterations described in Section 9(e) above, Subtenant will Sublessee shall not make any changes, alterations, alterations or additions in or to the Subleased Premises, except as permitted under by this Sublease or as otherwise permitted by Sublessor in its reasonable discretion;
(c) If Sublessee desires to take any action and the Prime Lease and subject to Sublandlord’s would require that Sublessor obtain the consent of Lessor before undertaking any action of the same kind, Sublessee shall not undertake the same without the prior written consentconsent of Sublessor, which consent shall not be unreasonably withheld, conditioned or delayed.
(ii) If Subtenant desires to take any action, and the Prime Lease requires Sublandlord to obtain the consent of Landlord before undertaking provided that type of action, Subtenant will not undertake the action without the prior written consent of Sublandlord. Sublandlord Sublessor may condition its consent on the consent of Landlord Lessor being obtained and may require that Subtenant Sublessee to contact Landlord Lessor directly for its consent and that Subtenant take all other steps needed to assure that Sublandlord will have no additional obligations to Landlord under the Prime Lease as a result of such action. Within twenty (20) days of notice from Sublandlord, Subtenant will reimburse Sublandlord for all reasonable out-of-pocket costs, expenses, and attorneys’ fees that Sublandlord incurs in attempting to obtain a consent, other than the Landlord’s Consent, from Landlord.;
(iiid) Sublandlord has, with respect to Subtenant, all rights, privileges, options, reservations, and remedies granted or allowed to, or held by, Landlord under the Prime Lease, except to the extent they are inconsistent with, or modified by the provisions of this Sublease, including without limitation, all All rights given to Landlord and its agents and representatives Lessor by the Prime Lease to enter the Prime Lease Space, upon reasonable notice Subleased Premises shall also inure to the benefit of Sublessor and accompanied by a representative of Subtenant, as provided therein.its agents and representatives with respect to the Subleased Premises;
(ive) Subtenant will Sublessor shall also have all other rights, privileges, options, reservations and remedies granted, allowed or held by Lessor under the Prime Lease;
(f) Sublessee shall maintain insurance of the kinds and in the amounts required to be maintained by Sublandlord “Lessee” under the Prime Lease, and shall provide Sublessor with copies of all insurance policies, binders, and all communications received from the Sublessee’s insurance companies. All policies of liability insurance maintained by Subtenant shall name as additional insureds Landlord, SVN Management, Inc., a California corporation, the Lessor and Sublandlord Sublessor and their respective officers, directors, members, managers, or partners, as the case may be, directors and the respective agents and employees of each of them. In addition, Subtenant will furnish Landlord and Sublandlord with evidence of the insurance coverage in amounts that Landlord or Sublandlord may reasonably require.agents;
(vg) Neither Subtenant nor Sublandlord will Sublessee shall not do anything or suffer or permit anything to be done that which could result in a default under the Prime Lease or permit Landlord to cancel the Prime Lease. Sublandlord agrees to hereinafter duly perform all of the terms, covenants and conditions on Sublandlord’s part to be performed as tenant under the Prime Lease except for those to be canceled or terminated;
(h) Sublessee shall not assign, sublet, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of same which have been undertaken by Subtenant pursuant to the terms this Sublease or any interest of Sublessee in this Sublease, including by operation of law or otherwise, or permit the use of the Subleased Premises or any part thereof by any persons other than Sublessee and Sublessee’s employees without limitation SublandlordSublessor’s obligation prior written consent, which consent may be withheld or granted at Sublessor’s reasonable discretion. Notwithstanding the foregoing, Sublessee shall have the right to pay Base Rent (as defined in assign this Sublease, sublet the Prime Lease) as tenant Subleased Premises, or otherwise transfer Sublessee’s interest under the Prime Lease. Sublandlord agrees Sublease to: (i) any parent, affiliate or subsidiary entity of Sublessee, (ii) any entity resulting from a merger, spin off or split up involving Sublessee or its parent entity, if any, (iii) any person or entity acquiring substantially all of Sublessee’s assets or stock, or (iv) any franchisee of Sublessee or Sublessee’s parent, provided, however, that it no such assignment or sublease shall not voluntarily surrender, assign (which assignment may only be made subject release Sublessee from its obligations under this Sublease unless such release is consented to this Sublease) or enter into any amendment of the Prime Lease, during the Term hereof, without obtaining the prior written consent of Subtenantby Sublessor in writing.
(c) Sublandlord represents and warrants to Subtenant that:
(i) the Prime Lease is in full force and effect as of the date hereof, and has not been modified or amended as of that date and the copy attached hereto as Exhibit A is a complete copy of the Prime Lease and First Amendment to Lease;
(ii) Sublandlord is not now in default under any provision of the Prime Lease;
(iii) as of the Effective Date, no notice has been received of a default by Sublandlord under the terms of the Prime Lease; and
(iv) to the best of Sublandlord’s actual knowledge, Landlord is not, as of the date hereof, in default in the performance or observance of its obligations under the Prime Lease.
(d) Despite anything contained in this Sublease or in the Prime Lease to the contrary, Sublandlord and Subtenant agree that:
(i) Neither Base Rent will not nor Additional Rent shall ▇▇▇▇▇ by reason of any damage to or destruction destructions of the Premises unlessSubleased Premises, the Building, or any part thereof, unless and then only to the extent that, rent that rental and such other payments actually ▇▇▇▇▇ under the Prime Lease with respect to the Premises.
(ii) Subtenant is not entitled to any portion Subleased Premises on account of such event. To the proceeds of any award for a condemnation or other taking, or a conveyance in lieu of a condemnation or taking, of all or any portion of the Building, extent that Sublessor under the Prime Lease Spacebecomes entitled to a rent abatement or reduction under the terms of the Prime Lease by reason of fire, casualty, interruption of services, condemnation or otherwise, and the Premises, but Subtenant may pursue a separate action against same results in Sublessor being fully or partially relieved of the applicable governmental authority for an award obligation to pay rent with respect to the taking of any of Subtenant’s trade fixtures or other removable property or to Subtenant’s costs and expenses of relocation as a result of Subleased Premises, Sublessee shall be similarly relieved hereunder and, if Sublessee has already paid the condemnation or other taking.rent in question, rebated accordingly;
(iiij) except as expressly set forth in this SubleaseSublessee shall not have any right to exercise, Subtenant is not entitled or require Sublessor to exercise or have Sublandlord exercise exercise, any option under the Prime Lease, including, including without limitation, any option to terminate or extend the term of the Prime Lease or Lease; provided, however, that if Sublessee exercises the Option and Sublessor does not exercise its Option under the Prime Lease, then this Sublease shall be a direct lease additional space.between Sublessee and Lessor, as described in the Consent attached to this Sublease as Exhibit “C”;
(ivk) If In the terms event of any conflict between the terms, conditions and provisions of the Prime Lease conflict with the terms and of this Sublease, the terms terms, conditions and provisions of this Sublease control as between Sublandlord shall, in all instances, govern and Subtenant.control;
(el) Sublandlord Sublessor does not assume and shall not have any of the obligations or liabilities of Landlord Lessor under the Prime Lease and Lease. Sublessor is not making the representations or warranties, if any, made by Landlord Lessor in the Prime Lease. With respect to work, services, repairs, repairs and restoration or the performance of other obligations required of Landlord Lessor under the Prime Lease, Sublandlord’ Sublessor’s sole obligation is with respect thereto shall be to request the same, upon written request from SubtenantSublessee, and to use reasonable efforts to obtain the same from LandlordLessor. All reasonable out-of-pocket costs and expenses, including, without limitation, attorneys’ fees, incurred by Sublandlord in attempting to enforce Landlord’s obligations and liabilities under the Prime Lease as aforesaid shall be reimbursed by Subtenant within twenty (20) days of notice from Sublandlord, and shall be deemed Rent due and payable under this Sublease. Sublandlord Sublessor shall not be liable in damages damages, nor shall rent ▇▇▇▇▇ under this Sublease, for or on account of any failure by Landlord Lessor to perform the obligations and duties imposed on it under the Prime Lease.;
(fm) Sublessor represents and warrants to Sublessee that the Prime Lease is unmodified and in full force and effect and that, to its knowledge, no default exists on the part of any party to the Prime Lease; and
(n) Nothing contained in this Sublease shall be construed to create privity of estate or contract between Subtenant Sublessee and LandlordLessor.
Appears in 1 contract
Sources: Sublease (Encore Capital Group Inc)
The Prime Lease. (a) This Sublease and all rights of Subtenant under this Sublease hereunder and with respect to the Premises are subject to the terms, conditions, conditions and provisions of the Prime Lease, except for the provisions of the Prime Lease except as they conflict directly with this Sublease or are deemed not applicable to this Sublease pursuant to this Section 10(a). Subtenant hereby assumes and agrees to perform faithfully and be bound by, with respect to the Premises, all of Sublandlord’s obligations, covenants, agreements, agreements and liabilities under the Prime Lease and all terms, conditions, provisions, provisions and restrictions contained in the Prime Lease; and Subtenant shall be entitled to all rights, except privileges, options, reservations and remedies granted or allowed to the extent set forth in the preceding sentenceor held by Sublandlord, and except:
(i) for the payment of “Base Rent Rent” and “Tenant’s Proportionate Share of Base Operating Costs” (each as those terms are defined or used in the Prime Lease);
(ii) that, except as set forth in Section 9(a) above, neither that Sublandlord nor Subtenant needs shall not have any obligations to construct or install tenant improvements;improvements except as may be provided herein; and
(iii) that none the following provisions of the Prime Lease do not apply to this Sublease: any provisions in the Prime Lease allowing or purporting to allow any rights or options of lease expansion, reduction, cancellation, or extension, or Sublandlord any rent concessions or construction allowances, apply to this Sublease; and
(iv) Subtenant has a period any provisions of time equal to the period of time that the tenant under the Prime Lease has to respond to or otherwise cure dealing with Sublandlord’s security deposit, any notices given by Landlord under provisions of the Prime LeaseLease dealing with the initial construction and buildout of the Building, less two Sections 35, 37B, 37E, Exhibit D (2except as between Sublandlord and Subtenant) days.and Exhibit F.
(b) Without limitation of the foregoing:
(i) Except with respect to the Future Alterations described in Section 9(e) above, Subtenant will shall not make any changes, alterations, alterations or additions in or to the Premises, Premises except as permitted under allowed in Section 12 of the Prime Lease and subject to Sublandlord’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed.Lease;
(ii) If Subtenant desires to take any action, other action and the Prime Lease requires would require that Sublandlord to obtain the consent of Landlord before undertaking that type any action of actionthe same kind, Subtenant will shall not undertake the action same without the prior written consent of Sublandlord, which shall not be unreasonably withheld or delayed. Sublandlord may condition its consent on the consent of Landlord being obtained and may require that Subtenant to contact Landlord directly for its consent and that Subtenant take all other steps needed to assure that Sublandlord will have no additional obligations to Landlord under the Prime Lease as a result of such action. Within twenty (20) days of notice from Sublandlord, Subtenant will reimburse Sublandlord for all reasonable out-of-pocket costs, expenses, and attorneys’ fees that Sublandlord incurs in attempting to obtain a consent, other than the Landlord’s Consent, from Landlord.;
(iii) Sublandlord has, with respect to Subtenant, all rights, privileges, options, reservations, and remedies granted or allowed to, or held by, Landlord under the Prime Lease, except to the extent they are inconsistent with, or modified by the provisions of this Sublease, including without limitation, all All rights given to Landlord and its agents and representatives by the Prime Lease to enter the premises covered by the Prime Lease Space, upon reasonable notice shall inure to the benefit of Sublandlord and accompanied by a representative of Subtenant, as provided therein.their respective agents and representatives with respect to the Premises;
(iv) Sublandlord shall also have all other rights, and all privileges, options, reservations and remedies, granted or allowed to, or held by, Landlord under the Prime Lease;
(v) Subtenant will shall maintain insurance of the kinds and in the amounts required to be maintained by Sublandlord under the Prime LeaseLease covering Subtenant and Subtenant’s use of the Premises. All policies of liability insurance maintained by Subtenant shall name as additional insureds Landlord, SVN Management, Inc., a California corporation, the Landlord and other parties required under the Prime Lease and Sublandlord and their respective officers, directors, members, managers, the following persons or partners, entities: eBay Inc. and C▇▇▇▇▇▇ & W▇▇▇▇▇▇▇▇ or such managing agent as the case may be, and the respective agents and employees of each of them. In addition, Subtenant will furnish Landlord and Sublandlord with evidence of the insurance coverage in amounts that Landlord or Sublandlord may reasonably require.from time to time designate for the Building; and
(vvi) Neither Subtenant nor Sublandlord will shall not do anything or suffer or permit anything to be done that which could result in a default under the Prime Lease or permit Landlord to cancel the Prime Lease. Sublandlord agrees to hereinafter duly perform all of the terms, covenants and conditions on Sublandlord’s part to be performed as tenant under the Prime Lease except for those of same which have been undertaken by Subtenant pursuant to the terms of this Sublease, including without limitation Sublandlord’s obligation to pay Base Rent (as defined in the Prime Lease) as tenant under the Prime Lease. Sublandlord agrees that it shall not voluntarily surrender, assign (which assignment may only be made subject to this Sublease) cancelled or enter into any amendment of the Prime Lease, during the Term hereof, without obtaining the prior written consent of Subtenantterminated.
(c) Notwithstanding anything contained herein or in the Prime Lease which may appear to be to the contrary, Sublandlord represents and warrants to Subtenant thathereby agree as follows:
(i) Subtenant shall not assign, mortgage, pledge, hypothecate or otherwise transfer or permit the Prime Lease is transfer of this Sublease or any interest of Subtenant in full force and effect as this Sublease, by operation of law or otherwise, or permit the use of the date hereofPremises or any part thereof by any persons other than Subtenant and Subtenant’s employees, or sublet the Premises or any part thereof; provided, however, (A) Sublandlord agrees not to withhold its consent unreasonably to a sublease by Subtenant which is also reasonably acceptable to Prime Landlord and (B) Subtenant shall pay Sublandlord seventy-five percent (75%) of any consideration it receives from a sublease which exceeds, on a pro rata basis, rent payable under this Sublease after deducting reasonable sublease costs. Notwithstanding the foregoing, Sublandlord’s consent shall not be required for, and has not been modified no consideration shall be due to Sublandlord in connection with, any assignment, sublease or amended as other transfer in connection with any merger or acquisition involving initial Subtenant, any sale or acquisition of that date and the copy attached hereto as Exhibit A is a complete copy all or substantially all of the Prime Lease and First Amendment assets of initial Subtenant or to Lease;
any entity which controls, is controlled by or is under common control with initial Subtenant (ii) Sublandlord is not now in default under any provision of the Prime Lease;
(iii) as of the Effective Date, no notice has been received of a default by Sublandlord under the terms of the Prime Lease; and
(iv“Permitted Transferee”) to the best extent consent and payment of Sublandlord’s actual knowledge, Landlord consideration is not, as of the date hereof, in default in the performance or observance of its obligations not required under the Prime Lease.
(dii) Despite anything contained in this Sublease or in the Prime Lease to the contrary, Sublandlord and Subtenant agree that:
(i) Rent will not ▇neither rental nor other payments hereunder shall a▇▇▇▇ by reason of any damage to or destruction of the Premises Premises, the premises subject to the Prime Lease, or the Building or any part thereof, unless, and then only to the extent that, rent rental and such other payments actually ▇a▇▇▇▇ under the Prime Lease with respect to the Premises.Premises on account of such event;
(iiiii) Subtenant is shall not entitled have any right to any portion of the proceeds of any award for a condemnation or other taking, or a conveyance in lieu of a condemnation or takingthereof, of all or any portion of the Building, the premises subject to the Prime Lease Space, or the Premises, but except Subtenant may pursue shall be entitled to a separate action against proportionate share of any proceeds received by Sublandlord based on the applicable governmental authority for an award with respect ratio of the area of the Premises taken to the taking of any of Subtenant’s trade fixtures or other removable property or to Subtenant’s costs and expenses of relocation as a result of total premises leased under the condemnation or other taking.Prime Lease;
(iiiiv) except as expressly set forth in this Sublease, Subtenant is shall not entitled have any right to exercise or have Sublandlord exercise any option under the Prime Lease, including, without limitation, any option to terminate or extend the term of the Prime Lease or lease additional space.; and
(ivv) If In the terms event of any conflict between the terms, conditions and provisions of the Prime Lease conflict with the terms and of this Sublease, the terms terms, conditions and provisions of this Sublease control as between Sublandlord shall, in all instances, govern and Subtenantcontrol.
(ed) It is expressly understood and agreed that Sublandlord does not assume and shall not have any of the obligations or liabilities of Landlord under the Prime Lease and that Sublandlord is not making the representations or warranties, if any, made by Landlord in the Prime Lease. With respect to work, services, repairs, repairs and restoration or the performance of other obligations required of Landlord under the Prime Lease, Sublandlord’ ’s sole obligation is with respect thereto shall be to request the same, upon written request from Subtenant, and to use reasonable efforts to obtain the same from Landlord. All reasonable out-of-pocket costs and expenses, including, without limitation, attorneys’ fees, incurred by Sublandlord in attempting to enforce Landlord’s obligations and liabilities under the Prime Lease as aforesaid shall be reimbursed by Subtenant within twenty (20) days of notice from Sublandlord, and shall be deemed Rent due and payable under this Sublease. Sublandlord shall not be liable in damages damages, nor shall rent a▇▇▇▇ hereunder, for or on account of any failure by Landlord to perform the obligations and duties imposed on it under the Prime Lease.
(fe) Nothing contained in this Sublease shall be construed to create privity of estate or contract between Subtenant and Landlord, except the agreements in Section and 12 hereof, and then only to the extent of the same.
Appears in 1 contract
Sources: Sublease Agreement (Intervoice Inc)
The Prime Lease. (a) This Sublease and all rights of Subtenant under this Sublease hereunder and with respect to the Premises are subject to the terms, conditions, conditions and provisions of the Prime Lease, except for the provisions of the Prime Lease except as they conflict directly with this Sublease or are deemed not applicable to this Sublease pursuant to this Section 10(a). Subtenant hereby assumes and agrees to perform faithfully and be bound by, with respect to the Premises, all of Sublandlord’s 's obligations, covenants, agreements, agreements and liabilities under the Prime Lease and all terms, conditions, provisions, provisions and restrictions contained in the Prime Lease, except to the extent set forth in the preceding sentence, and Lease except:
(i) for the payment of "Monthly Base Rent Rent" (each as such term is defined or used in the Prime Lease);
(ii) that, except as set forth in Section 9(a) above, neither Sublandlord nor that Subtenant needs shall not have any obligations to construct or install tenant improvements;improvements except as may be provided herein; and
(iii) that none the following provisions of the Prime Lease do not apply to this Sublease: any provisions in the Prime Lease allowing or purporting to allow any rights or options of lease expansion, reduction, cancellation, or extension, or Sublandlord any rent concessions or abatements or construction allowances, apply any provisions allowing Sublandlord to this Sublease; and
extend or renew the term of the Prime Lease (ivincluding, without limitation, Paragraph 3(b) Subtenant has a period of time equal the Prime Lease), any provisions of the Prime Lease providing for any representations and/or warranties with respect to Hazardous Materials (including, without limitation, Paragraph 8(d) of the Prime Lease), any provisions relating to warranties regarding improvements within the Premises (including, without limitation, Paragraph 14(d) of the Prime Lease), any rights granted to terminate the Prime Lease due to an interruption in utilities (including, without limitation, Paragraph 17 of the Prime Lease), any provisions permitting any right of self-help, offset or termination in the event of any default by Landlord under the terms and provisions of the Prime Lease (including, without limitation, the provisions of the last paragraph of Paragraph 23 of the Prime Lease), any rights to install signage without obtaining the consent of the Sublandlord and/or Landlord (including, without limitation, Paragraph 34 of the Prime Lease), any option to purchase the Building or other real property (including, without limitation, Paragraphs 41, 43 and 44 of the Prime Lease), any option to lease additional premises (including, without limitation, Paragraph 42 of the Prime Lease) and any right to terminate the Prime Lease (including, without limitation, Paragraph 47 of the Prime Lease), and any provisions of the Work Letter Agreement attached to the period Prime Lease as Exhibit C thereto. Sublandlord acknowledges and agrees that Subtenant shall specifically have all rights of time that the tenant Sublandlord under the Prime Lease has as such rights pertain to respond the Premises (i) for the use of the roof of the Building (including, without limitation, such rights as arise under Paragraph 48 of the Prime Lease as applied to or otherwise cure any notices given by Landlord the Premises), and (ii) to install a generator to serve the Building (including, without limitation, such rights as arise under Paragraph 49 of the Prime Lease), less two (2) dayssuch generator to be installed within the area located on the attached Exhibit "C".
(b) Without limitation of the foregoing:
(i) Except with respect to the Future Alterations described in Section 9(e) above, Subtenant will shall not make any changes, alterations, alterations or additions in or to the Premises, Premises except as permitted under otherwise expressly provided herein. In connection therewith, Sublandlord and Subtenant acknowledge and agree that Subtenant may desire to make certain alterations, additions and/or improvements to the Premises following its occupancy thereof. In connection with such work (hereinafter referred to as the "Subtenant Work"), such work shall be performed at the sole cost and expense of Subtenant (subject to the rent abatement provided by Sublandlord in lieu of a construction allowance) and shall strictly conform to all the terms and provisions of the Prime Lease and subject to Sublandlord’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed.this Sublease;
(ii) If Subtenant desires to take any action, other action and the Prime Lease requires would require that Sublandlord to obtain the consent of Landlord before undertaking that type any action of actionthe same kind, Subtenant will shall not undertake the action same without the prior written consent of Sublandlord. Sublandlord may condition its consent on the consent of Landlord being obtained and may require that Subtenant to contact Landlord directly for its consent and that Subtenant take all other steps needed to assure that Sublandlord will have no additional obligations to Landlord under the Prime Lease as a result of such action. Within twenty (20) days of notice from Sublandlord, Subtenant will reimburse Sublandlord for all reasonable out-of-pocket costs, expenses, and attorneys’ fees that Sublandlord incurs in attempting to obtain a consent, other than the Landlord’s Consent, from Landlord.;
(iii) Sublandlord has, with respect to Subtenant, all rights, privileges, options, reservations, and remedies granted or allowed to, or held by, Landlord under the Prime Lease, except to the extent they are inconsistent with, or modified by the provisions of this Sublease, including without limitation, all All rights given to Landlord and its agents and representatives by the Prime Lease to enter the Prime Lease SpacePremises shall inure to the benefit of Sublandlord and their respective agents and representatives with respect to the Premises, upon reasonable notice and accompanied by a representative of SubtenantSubtenant shall also have all the rights, and all privileges, options, reservations and remedies, granted or allowed to, or held by, Sublandlord, as provided therein.Tenant, under the Prime Lease, all of which rights, privileges, options, reservations and remedies in favor of Subtenant shall be limited as set forth in this Sublease;
(iv) Sublandlord shall also have all other rights, and all privileges, options, reservations and remedies, granted or allowed to, or held by, Landlord under the Prime Lease;
(v) Subtenant will shall maintain insurance of the kinds and in the amounts required to be maintained by Sublandlord under the Prime Lease. All policies of liability insurance maintained by Subtenant shall name as additional insureds Landlord, SVN Management, Inc., a California corporation, the Landlord and Sublandlord and their respective officers, directors, members, managers, directors or partners, as the case may be, and the respective agents and employees of each of them. In addition, Subtenant will furnish Landlord and Sublandlord with evidence of the insurance coverage in amounts that Landlord or Sublandlord may reasonably require.; and
(vvi) Neither Subtenant nor Sublandlord will shall not do anything or suffer or permit anything to be done that which could result in a default under the Prime Lease or permit Landlord to cancel the Prime Lease. Sublandlord agrees to hereinafter duly perform all of the terms, covenants and conditions on Sublandlord’s part to be performed as tenant under the Prime Lease except for those of same which have been undertaken by Subtenant pursuant to the terms of this Sublease, including without limitation Sublandlord’s obligation to pay Base Rent (as defined in the Prime Lease) as tenant under the Prime Lease. Sublandlord agrees that it shall not voluntarily surrender, assign (which assignment may only be made subject to this Sublease) canceled or enter into any amendment of the Prime Lease, during the Term hereof, without obtaining the prior written consent of Subtenantterminated.
(c) Sublandlord represents and warrants to Subtenant that:
(i) the Prime Lease is in full force and effect as of the date hereof, and has not been modified or amended as of that date and the copy attached hereto as Exhibit A is a complete copy of the Prime Lease and First Amendment to Lease;
(ii) Sublandlord is not now in default under any provision of the Prime Lease;
(iii) as of the Effective Date, no notice has been received of a default by Sublandlord under the terms of the Prime Lease; and
(iv) to the best of Sublandlord’s actual knowledge, Landlord is not, as of the date hereof, in default in the performance or observance of its obligations under the Prime Lease.
(d) Despite Notwithstanding anything contained in this Sublease herein or in the Prime Lease which may appear to be to the contrary, Sublandlord and Subtenant hereby agree thatas follows:
(i) Rent will not ▇▇▇▇▇ Subtenant shall not, without the prior written consent of Sublandlord, assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Sublease or any interest of Subtenant in this Sublease, by reason operation of any damage to law or destruction otherwise, or permit the use of the Premises unlessor any part thereof by any persons other than Subtenant and Subtenant's employees, and then only or sublet the Premises or any part thereof. Sublandlord shall not unreasonably withhold, condition or delay its consent to the extent that, rent and other payments actually ▇▇▇▇▇ under the Prime Lease with respect to the Premises.
any such transfer if (ii1) Subtenant is not entitled to then in default under any portion of the proceeds of any award for a condemnation or other taking, or a conveyance in lieu of a condemnation or taking, of all or any portion of the Building, the Prime Lease Space, or the Premises, but Subtenant may pursue a separate action against the applicable governmental authority for an award with respect to the taking of any of Subtenant’s trade fixtures or other removable property or to Subtenant’s costs terms and expenses of relocation as a result of the condemnation or other taking.
(iii) except as expressly set forth in this Sublease, Subtenant is not entitled to exercise or have Sublandlord exercise any option under the Prime Lease, including, without limitation, any option to terminate or extend the term of the Prime Lease or lease additional space.
(iv) If the terms of the Prime Lease conflict with the terms conditions of this Sublease, (2) the terms of this Sublease control as between Sublandlord and Subtenant.
proposed transferee is sufficiently creditworthy, in Sublandlord's sole determination, (e3) Sublandlord does not assume the obligations or liabilities of Landlord under the Prime Lease and proposed transferee is not making the representations a competitor of Sublandlord or warranties, if any, made by Landlord in the Prime Lease. With respect to work, services, repairsis a governmental agency, and restoration or the performance of other obligations required of Landlord under the Prime Lease, Sublandlord’ sole obligation is to request the same, upon written request from Subtenant, and to use reasonable efforts to obtain the same from Landlord. All reasonable out-of-pocket costs and expenses, including, without limitation, attorneys’ fees, incurred by Sublandlord in attempting to enforce Landlord’s obligations and liabilities under the Prime Lease as aforesaid shall be reimbursed by Subtenant within twenty (204) days of notice from Sublandlord, and shall be deemed Rent due and payable under this Sublease. Sublandlord shall not be liable in damages for or on account of any failure by Landlord to perform the obligations and duties imposed on it under the Prime Lease.
(f) Nothing contained in this Sublease shall be construed to create privity of estate or contract between Subtenant and Landlord.the
Appears in 1 contract
Sources: Sublease (Western Digital Corp)
The Prime Lease. (a) This Sublease and all rights of Subtenant under this Sublease --------------- hereunder and with respect to the Demised Premises are subject to the terms, conditions, conditions and provisions of the Prime Lease, except for the provisions . Sublessee shall have all of the Prime Lease except as they conflict directly with this Sublease or are deemed not applicable rights of Sublessor vis a vis the Landlord to this Sublease pursuant to this Section 10(a). Subtenant assumes and agrees to perform faithfully and be bound by, with respect to enforce the Premises, all of Sublandlord’s obligations, covenants, agreements, and liabilities under the Prime Lease and all terms, conditions, provisions, and restrictions contained in the Prime Lease, except to the extent set forth in the preceding sentence, and except:
(i) for the payment of Base Rent (each as defined or used in the Prime Lease);
(ii) that, except as set forth in Section 9(a) above, neither Sublandlord nor Subtenant needs to construct or install tenant improvements;
(iii) that none obligations of the provisions in the Prime Lease allowing or purporting to allow any rights or options of lease expansion, reduction, cancellation, or extension, or any rent concessions or construction allowances, apply to this Sublease; and
(iv) Subtenant has a period of time equal to the period of time that the tenant under the Prime Lease has to respond to or otherwise cure any notices given by Landlord under the Prime Lease, less two (2) days.
(b) Without limitation of the foregoing:
(i) Except with respect to the Future Alterations described in Section 9(e) above, Subtenant will not make any changes, alterations, or additions in or to the Premises, except as permitted under the Prime Lease and subject to Sublandlord’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed.
(ii) If Subtenant if Sublease desires to take any action, including structural changes within the Demised Premises, and the Prime Lease requires Sublandlord to would require the Sublessor obtain the consent of Landlord the Prime Lessor before undertaking that type any action of actionthe same kind, Subtenant will Sublessee shall not undertake the action same without the prior written consent of SublandlordSublessor. Sublandlord Sublessor may condition its consent on the consent of Landlord the Prime Lessor being obtained, and may require that Subtenant Sublessee to contact Landlord the Prime Lessor directly for such consent but Sublessor shall not otherwise unreasonably withhold, delay or condition its consent and that Subtenant take all other steps needed to assure that Sublandlord will have no additional obligations to Landlord under the Prime Lease as a result of such action. Within twenty (20) days of notice from Sublandlord, Subtenant will reimburse Sublandlord for all reasonable out-of-pocket costs, expenses, and attorneys’ fees that Sublandlord incurs in attempting to obtain a consent, other than the Landlord’s Consent, from Landlord.;
(iiiii) Sublandlord has, with respect to Subtenant, Sublessor shall also have all rights, and all privileges, options, reservationsreservations and remedies, and remedies granted or allowed to, or held by, Landlord the Prime Lessor under the Prime Lease to the extent that the exercise of those rights is not inconsistent with the terms of the Sublease;
(iii) Sublessee shall maintain insurance of the kinds required to be maintained by Sublessor under the Prime Lease and including any rights of self insurance subject to the Net Worth Requirement under the Prime Lease, except to and the extent they are inconsistent with, or modified by the provisions consent of this Sublease, including without limitation, all rights given to Landlord and its agents and representatives by the Prime Lease to enter the Prime Lease Space, upon reasonable notice and accompanied by a representative of Subtenant, as provided therein.
(iv) Subtenant will maintain insurance of the kinds and in the amounts required to be maintained by Sublandlord under the Prime LeaseLessor. All policies of liability insurance maintained by Subtenant shall name the Prime Lessor and Sublessor as additional insureds Landlordinsured and all physical damage insurance shall insure Prime Lessor as its interest may appear; provided, SVN Management, Inc., a California corporationthat Sublessee shall not be entitled to any insurance proceeds from policies which may be carried by Sublessor, and Sublandlord if Sublessor is required to repair or restore improvements and their respective officersbetterments to the Demised Premises insured by Sublessee, directorsSublessee shall make available all insurance proceeds for such repair or restoration to Prime Lessor; provided, membershowever, managersthat at the election of Sublessee, or partners, as Sublessor will maintain the case may beinsurance required to be maintained under the Prime Lease, and Sublessee shall reimburse Sublessor therefore at the respective agents rate of Forty Seven Thousand Two Hundred Fifty and employees no/100 Dollars (47,250.00) per annum payable in equal monthly installment of Three Thousand Nine Hundred Thirty Seven and 50/100 Dollars ($3,937.50) in advance on the first of each of them. In addition, Subtenant will furnish Landlord and Sublandlord with evidence of the insurance coverage in amounts that Landlord or Sublandlord may reasonably require.calendar month;
(viv) Neither Subtenant Sublessor nor Sublandlord will Sublessee shall do anything or suffer or permit anything to be done that could result which results in a default under the Prime Lease or permit Landlord to cancel the Prime Lease. Sublandlord agrees to hereinafter duly perform all of the terms, covenants and conditions on Sublandlord’s part to be performed as tenant under the Prime Lease except for those of same which have been undertaken by Subtenant pursuant to the terms of this Subleasebe canceled or terminated. Sublessor shall not attempt or agree to amend modify, including without limitation Sublandlord’s obligation to pay Base Rent (as defined in cancel or reject the Prime Lease) as tenant under the Prime Lease. Sublandlord agrees that it shall not voluntarily surrender, assign (which assignment may only be made subject to this Sublease) or enter into any amendment of the Prime Lease, during the Term hereof, Lease without obtaining the prior written consent of SubtenantSublessee which may be withheld or granted in Sublessor's sole discretion.
(c) Sublandlord represents Notwithstanding anything contained herein or in the Prime Lease which may appear to be to the contrary, Sublessor and warrants to Subtenant that:Sublessee hereby agree as follows
(i) Sublessee shall not assign, or otherwise transfer or permit the Prime Lease is in full force and effect as transfer of the date hereofSublease or any interest of Sublessee in this Sublease, and has not been modified by operation of law or amended as of that date and otherwise, or permit the copy attached hereto as Exhibit A is a complete copy use of the Prime Lease Demised Premises or any part thereof by any persons other than Sublessee and First Amendment Sublessee's employees, or sublet the Demised Premises or any part thereof, except to Leasethe extent Sublessor gives consent to a subletting or assignment; provided that no consent shall be required for a full or partial assignment of this Sublease or a sub-sublease of all or any portion of the Demised Premises to an entity which controls, is controlled by or under common control with the Sublessee. Sublessor agrees that it will not unreasonably withhold, delay or condition its consent to a proposed subletting or assignment for which its consent is required, provided that Sublessee shall remain liable under this Sublease;
(ii) Sublandlord is not now in default under any provision of the Prime Lease;
(iii) as of the Effective Date, no notice has been received of a default by Sublandlord under the terms of the Prime Lease; and
(iv) to the best of Sublandlord’s actual knowledge, Landlord is not, as of the date hereof, in default in the performance or observance of its obligations under the Prime Lease.
(d) Despite anything contained in this Sublease or in the Prime Lease to the contrary, Sublandlord and Subtenant agree that:
(i) Rent will not neither rental nor other payments hereunder shall ▇▇▇▇▇ by reason of any damage to or destruction of all or part of the Demised Premises or the Building unless, and then only to the extent that, rent and other payments actually ▇▇▇▇▇ abates under the Prime Lease with respect to the Premises.
(ii) Subtenant is not entitled to any portion Demised Premises on account of the proceeds of any award for a condemnation or other taking, or a conveyance in lieu of a condemnation or taking, of all or any portion of the Building, the Prime Lease Space, or the Premises, but Subtenant may pursue a separate action against the applicable governmental authority for an award with respect to the taking of any of Subtenant’s trade fixtures or other removable property or to Subtenant’s costs and expenses of relocation as a result of the condemnation or other taking.such event;
(iii) except as expressly set forth in this Subleasethe event of any conflict between the terms, Subtenant is not entitled to exercise or have Sublandlord exercise any option under the Prime Lease, including, without limitation, any option to terminate or extend the term conditions and provisions of the Prime Lease or lease additional space.
(iv) If the terms of the Prime Lease conflict with the terms and of this Sublease, the terms terms, conditions and provisions of this Sublease control as between Sublandlord shall govern and Subtenantcontrol.
(ed) Sublandlord Except as provided herein it is expressly understood and agreed that Sublessor does not assume and shall not have any of the obligations or liabilities of Landlord the Prime Lessor under the Prime Lease and that Sublessor is not making the representations or warranties, if any, made by Landlord the Prime Lessor in the Prime prime Lease. With respect to work, services, repairs, repairs and restoration restorations or the performance of other obligations required of Landlord the Prime Lessor under the Prime Lease, Sublandlord’ Sublessor's sole obligation is with respect thereto shall be to request the same, upon written request from SubtenantSublessee, and to use reasonable diligent efforts to obtain abtain the same from Landlordthe Prime Lessor. All reasonable out-of-pocket costs and expenses, including, without limitation, attorneys’ fees, incurred by Sublandlord in attempting Sublessor shall have the right to enforce Landlord’s deal directly with the Prime Lessor concerning the performance of Prime Lessor's obligations and liabilities under the Prime Lease as aforesaid shall be reimbursed by Subtenant within twenty (20) days of notice from Sublandlord, and shall be deemed Rent due and payable under this SubleaseLease. Sublandlord Sublessor shall not be liable in damages damages, nor shall rent ▇▇▇▇▇ hereunder, for or on account of any failure by Landlord the Prime Lessor to perform the obligations and duties imposed on it under the Prime Lease, except as set forth in Section 6(c)(ii) above.
(fe) Nothing contained in this Sublease Sublessor shall be construed use its best commercially reasonable efforts to create privity obtain an agreement from Prime Lessor for the benefit of estate or contract between Subtenant Sublessee, that Prime Lessor shall give written notice of any default under the Prime Lease to Sublessee and Landlordthereafter Sublessee shall have fifteen (15) days to cure such default.
Appears in 1 contract
Sources: Sublease (Mohawk Industries Inc)
The Prime Lease. (a) This Sublease is and shall be at all rights of Subtenant under this Sublease times subject and with respect subordinate to the Premises are subject to Prime Lease. Except as set forth herein, all of the terms, conditions, terms and provisions of the Prime LeaseLease are incorporated by reference as if fully rewritten herein, except for the provisions and Subtenant shall be entitled to all of the Prime Lease except as they conflict directly with this Sublease or are deemed not applicable to this Sublease pursuant to this Section 10(a). Subtenant assumes and agrees to perform faithfully and be bound bybenefits, with respect to the Premises, all of Sublandlord’s obligations, covenants, agreements, and liabilities under the Prime Lease and all terms, conditions, provisions, and restrictions contained in the Prime Lease, except to the extent set forth in the preceding sentence, and except:
(i) for the payment of Base Rent (each as defined or used in the Prime Lease);
(ii) that, except as set forth in Section 9(a) above, neither Sublandlord nor Subtenant needs to construct or install tenant improvements;
(iii) that none of the provisions in the Prime Lease allowing or purporting to allow any rights or options of lease expansion, reduction, cancellation, or extension, or any rent concessions or construction allowances, apply to this Sublease; and
(iv) Subtenant has a period of time equal to the period of time that the tenant under the Prime Lease has to respond to or otherwise cure any notices given by Landlord under the Prime Lease, less two (2) days.
(b) Without limitation of the foregoing:
(i) Except with respect to the Future Alterations described in Section 9(e) above, Subtenant will not make any changes, alterations, or additions in or to the Premises, except as permitted under the Prime Lease and subject to Sublandlord’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed.
(ii) If Subtenant desires to take any action, and the Prime Lease requires Sublandlord to obtain the consent of Landlord before undertaking that type of action, Subtenant will not undertake the action without the prior written consent of Sublandlord. Sublandlord may condition its consent on the consent of Landlord and may require that Subtenant contact Landlord directly for its consent and that Subtenant take all other steps needed to assure that Sublandlord will have no additional obligations to Landlord under the Prime Lease as a result of such action. Within twenty (20) days of notice from Sublandlord, Subtenant will reimburse Sublandlord for all reasonable out-of-pocket costs, expenses, and attorneys’ fees that Sublandlord incurs in attempting to obtain a consent, other than the Landlord’s Consent, from Landlord.
(iii) Sublandlord has, with respect to Subtenant, all rights, privileges, options, reservations, and remedies granted or allowed to, or held by, Landlord under the Prime Lease, except to the extent they are inconsistent with, or modified by the provisions of this Sublease, including without limitation, all rights given to Landlord and its agents and representatives by the Prime Lease to enter the Prime Lease Space, upon reasonable notice and accompanied by a representative of Subtenant, as provided therein.
(iv) Subtenant will maintain insurance of the kinds and in the amounts required to be maintained by Sublandlord under the Prime Lease. All policies of liability insurance maintained by Subtenant shall name as additional insureds Landlord, SVN Management, Inc., a California corporation, and Sublandlord and their respective officers, directors, members, managers, or partners, as the case may be, and the respective agents and employees of each of them. In addition, Subtenant will furnish Landlord and Sublandlord with evidence of the insurance coverage in amounts that Landlord or Sublandlord may reasonably require.
(v) Neither Subtenant nor Sublandlord will do anything or suffer or permit anything to be done that could result in a default under the Prime Lease or permit Landlord to cancel the Prime Lease. Sublandlord agrees to hereinafter duly perform all of the termsconditions and obligations of, covenants and conditions on Sublandlord’s part to be performed the Sublandlord as tenant under the Prime Lease as it relates to the Subleased Premises, except as otherwise provided herein.
(b) The terms, conditions and respective obligations of Sublandlord and Subtenant to each other under this Sublease shall be the terms and conditions of the Prime Lease except for those provisions of same the Prime Lease which have been undertaken are directly contradicted by Subtenant pursuant to this Sublease, in which event the terms of this Sublease, including without limitation Sublandlord’s obligation to pay Base Rent (as defined in the Prime Lease) as tenant under the Prime Lease. Sublandlord agrees that it Sublease shall not voluntarily surrender, assign (which assignment may only be made subject to this Sublease) or enter into any amendment of the Prime Lease, during the Term hereof, without obtaining the prior written consent of Subtenant.
(c) Sublandlord represents and warrants to Subtenant that:
(i) control over the Prime Lease is in full force and effect as for the avoidance of doubt the date hereof, and has not been modified or amended as of that date and the copy attached hereto as Exhibit A is a complete copy Subtenant shall have no obligation with respect to any provisions of the Prime Lease and First Amendment which would be construed to Lease;
(ii) Sublandlord is not now in default under have Subtenant perform any provision act as respects, or which relates to, any portion of the Prime Lease;
Premises not subleased hereunder (iiii.e. the Additional Space) as of and Subtenant shall have no obligation to comply with the Effective Date, no notice has been received of a default by Sublandlord under the terms following provisions of the Prime Lease; and
to wit: Article 3, Article 17, Article 22, Article 31, Article 40, Article 41 (ivexcept for section 41.07), Article 49, sections 32.01(b)(iii) and 32.01(b)(iv), Exhibits B, E and F and the Lease Modification, Extension And Additional Space Agreement, but excluding all references to the best extension of the Term of the Prime Lease which shall be applicable to this Sublease. Subject to the foregoing, for the purposes of this Sublease, wherever in the Prime Lease the word “Landlord” is used, it shall be deemed to mean Sublandlord, and wherever in the Prime Lease the word “Tenant” is used, it shall be deemed to mean Subtenant. Notwithstanding the foregoing, Subtenant acknowledges and agrees that Sublandlord shall not be deemed a guarantor of the performance by Prime Landlord of Prime Landlord’s obligations under the Prime Lease, and that Subtenant shall look solely to Prime Landlord for the performance of Prime Landlord’s obligations and Sublandlord’s actual knowledge, sole obligation with respect thereto shall be to request Prime Landlord is not, as of the date hereof, in default in the performance or observance of to perform its obligations under the Prime Lease. It is likewise agreed that Sublandlord shall have no liability to Subtenant for any default or other act of Prime Landlord under the Prime Lease (so long as Prime Landlord’s acts are not the result, directly or indirectly, of any act or omission of Sublandlord or any third party claiming under or through Sublandlord other than Subtenant) and that Sublandlord shall not be obligated to provide any services to Subtenant or otherwise perform any obligations in connection with this Sublease except as specifically set forth herein.
(c) During the term of this Sublease, Subtenant does hereby expressly assume and agree to perform and comply with, for the benefit of Sublandlord and Prime Landlord, the obligations of Sublandlord under the Prime Lease to the extent that such obligations are not excluded by the terms of this Sublease and are applicable to the Subleased Premises.
(d) Despite anything contained in If the Prime Lease terminates through any event that is not caused by a default of Subtenant or Sublandlord under this Sublease, this Sublease shall be deemed to have been terminated on the date that is one (1) day prior to the date of termination of the Prime Lease, and the parties hereto shall be relieved of any further liability or obligation under this Sublease, except that any prepaid portion of Base Rent or additional rents not yet earned by Sublandlord shall be promptly returned to Subtenant. If the Prime Lease terminates, in no event shall Sublandlord be required to act beyond its obligations as tenant in the Prime Lease to the contrary, or as Sublandlord and Subtenant agree that:
(i) Rent will not ▇▇▇▇▇ by reason of any damage to or destruction of the Premises unless, and then only to the extent that, rent and other payments actually ▇▇▇▇▇ under the Prime Lease with respect to the Premises.
(ii) Subtenant is not entitled to any portion of the proceeds of any award for a condemnation or other taking, or a conveyance in lieu of a condemnation or taking, of all or any portion of the Building, the Prime Lease Space, or the Premises, but Subtenant may pursue a separate action against the applicable governmental authority for an award with respect to the taking of any of Subtenant’s trade fixtures or other removable property or to Subtenant’s costs and expenses of relocation as a result of the condemnation or other taking.
(iii) except as expressly set forth in this Sublease, Subtenant is not entitled to exercise or have Sublandlord exercise any option under the Prime Lease, including, without limitation, any option to terminate or extend the term of the Prime Lease or lease additional space.
(iv) If the terms of the Prime Lease conflict with the terms of this Sublease, the terms of this Sublease control as between Sublandlord and Subtenant.
(e) Sublandlord does not assume the obligations or liabilities of Landlord under the Prime Lease and is not making the representations or warranties, if any, made by Landlord in the Prime Lease. With respect to work, services, repairs, and restoration or the performance of other obligations required of Landlord under the Prime Lease, Sublandlord’ sole obligation is to request the same, upon written request from Subtenant, and to use reasonable efforts to obtain the same from Landlord. All reasonable out-of-pocket costs and expenses, including, without limitation, attorneys’ fees, incurred by Sublandlord in attempting to enforce Landlord’s obligations and liabilities under the Prime Lease as aforesaid shall be reimbursed by Subtenant within twenty (20) days of notice from Sublandlord, and shall be deemed Rent due and payable under this Sublease. Sublandlord shall not be liable in damages for or on account of any failure by Landlord to perform the obligations and duties imposed on it under the Prime Lease.
(f) Nothing contained in this Sublease shall be construed to create privity of estate or contract between Subtenant and Landlord.
Appears in 1 contract
The Prime Lease. (a) This Sublease and all rights of Subtenant under this Sublease hereunder and with respect to the Premises are subject and subordinate to the terms, conditions, conditions and provisions of the Prime Lease, except for the provisions of Lease and to all matters to which the Prime Lease except as they conflict directly with this Sublease is or are deemed not applicable to this Sublease pursuant to this Section 10(a)shall be subject and subordinate. Subtenant hereby assumes and agrees to perform faithfully and be bound by, with respect to the Premises, all of Sublandlord’s 's obligations, covenants, agreements, agreements and liabilities under the Prime Lease and all terms, conditions, provisions, provisions and restrictions contained in the Prime Lease, except to the extent set forth in the preceding sentence, and except:
(i) for the payment of "Base Rent Rent" (each as defined or used in the Prime Lease);, it being understand that Subtenant's corresponding obligations are set forth in Section 3 of this Sublease; and
(ii) that, except as set forth in Section 9(a) above, neither Sublandlord nor Subtenant needs that the following provisions of the Prime Lease do not apply to construct or install tenant improvements;
this Sublease: (iii) that none of the any provisions in the Prime Lease allowing or purporting to allow any rights or options of lease expansion, reduction, cancellation, or extension, or Sublandlord any rent concessions or construction allowances, apply to this Sublease; and
and (iv) Subtenant has a period any provisions which grants to Sublandlord any option to expand the Premises, extend the term of time equal to the period of time that the tenant under the Prime Lease has to respond to or otherwise cure any notices given by Landlord under the Prime Lease, less two (2) daysother option.
(b) Without limitation of the foregoing:
(i) Except Whenever the consent or approval of Landlord is required with respect to any matter pertaining to the Prime Lease, Subtenant shall also obtain the prior written consent or approval of Sublandlord with respect to the Future Alterations described subject matter. It is hereby agreed that in Section 9(e) above, Subtenant will not make the event Landlord disapproves of any changes, alterations, or additions in or manner pertaining to the PremisesPrime Lease, except as permitted under such disapproval shall be reasonable grounds for Sublandlord's disapproval of the Prime Lease and subject to Sublandlord’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed.matter;
(ii) If Subtenant desires to take any action, other action and the Prime Lease requires would require that Sublandlord to obtain the consent of Landlord before undertaking that type any action of actionthe same kind, Subtenant will shall not undertake the action same without the prior written consent of Sublandlord. Sublandlord may condition its consent on the consent of Landlord being obtained and may require that Subtenant to contact Landlord directly for its consent and that Subtenant take all other steps needed to assure that Sublandlord will have no additional obligations to Landlord under the Prime Lease as a result of such action. Within twenty (20) days of notice from Sublandlord, Subtenant will reimburse Sublandlord for all reasonable out-of-pocket costs, expenses, and attorneys’ fees that Sublandlord incurs in attempting to obtain a consent, other than the Landlord’s Consent, from Landlord.;
(iii) Sublandlord has, with respect to Subtenant, all rights, privileges, options, reservations, and remedies granted or allowed to, or held by, Landlord under the Prime Lease, except to the extent they are inconsistent with, or modified by the provisions of this Sublease, including without limitation, all All rights given to Landlord and its agents and representatives by the Prime Lease to enter the Prime Lease Space, upon reasonable notice Premises shall inure to the benefit of Sublandlord and accompanied by a representative of Subtenant, as provided therein.their respective agents and representatives with respect to the Premises;
(iv) Sublandlord shall also have all rights, privileges, options, reservations and remedies with respect to this Sublease, the Premises and Subtenant, to the same extent, granted or allowed to, or held by, Landlord under the Prime Lease with respect to the Prime Lease, the Premises and Sublandlord; and Subtenant will shall also have all rights, privileges, options, reservations and remedies with respect to this Sublease, the Premises and Sublandlord, to the same extent, granted or allowed to, or held by, Sublandlord as tenant under the Prime Lease with respect to this Sublease, the Premises and Sublandlord except as otherwise provided to the contrary in this Sublease;
(v) Subtenant shall maintain insurance of the kinds and in the amounts required to be maintained by Sublandlord under the Prime Lease. All policies of liability insurance maintained by Subtenant shall name as additional insureds Landlord, SVN Management, Inc., a California corporation, Landlord and Sublandlord and their respective officers, directors, members, managers, directors or partners, as the case may be, and the respective agents and employees of each of them. In addition, Subtenant will furnish Landlord and Sublandlord with evidence of the insurance coverage in amounts that Landlord or Sublandlord may reasonably require.; and
(vvi) Neither Subtenant nor Sublandlord will shall not do anything or suffer or permit anything to be done that which could result in a default under the Prime Lease or permit Landlord to cancel the Prime Lease. Sublandlord agrees to hereinafter duly perform all of the terms, covenants and conditions on Sublandlord’s part to be performed as tenant under the Prime Lease except for those of same which have been undertaken by Subtenant pursuant to the terms of this Sublease, including without limitation Sublandlord’s obligation to pay Base Rent (as defined in the Prime Lease) as tenant under the Prime Lease. Sublandlord agrees that it shall not voluntarily surrender, assign (which assignment may only be made subject to this Sublease) cancelled or enter into any amendment of the Prime Lease, during the Term hereof, without obtaining the prior written consent of Subtenantterminated.
(c) Sublandlord represents It is expressly understood and warrants to Subtenant that:
(i) the Prime Lease is in full force and effect as of the date hereof, and has not been modified or amended as of agreed that date and the copy attached hereto as Exhibit A is a complete copy of the Prime Lease and First Amendment to Lease;
(ii) Sublandlord is not now in default under any provision of the Prime Lease;
(iii) as of the Effective Date, no notice has been received of a default by Sublandlord under the terms of the Prime Lease; and
(iv) to the best of Sublandlord’s actual knowledge, Landlord is not, as of the date hereof, in default in the performance or observance of its obligations under the Prime Lease.
(d) Despite anything contained in this Sublease or in the Prime Lease to the contrary, Sublandlord and Subtenant agree that:
(i) Rent will not ▇▇▇▇▇ by reason of any damage to or destruction of the Premises unless, and then only to the extent that, rent and other payments actually ▇▇▇▇▇ under the Prime Lease with respect to the Premises.
(ii) Subtenant is not entitled to any portion of the proceeds of any award for a condemnation or other taking, or a conveyance in lieu of a condemnation or taking, of all or any portion of the Building, the Prime Lease Space, or the Premises, but Subtenant may pursue a separate action against the applicable governmental authority for an award with respect to the taking of any of Subtenant’s trade fixtures or other removable property or to Subtenant’s costs and expenses of relocation as a result of the condemnation or other taking.
(iii) except as expressly set forth in this Sublease, Subtenant is not entitled to exercise or have Sublandlord exercise any option under the Prime Lease, including, without limitation, any option to terminate or extend the term of the Prime Lease or lease additional space.
(iv) If the terms of the Prime Lease conflict with the terms of this Sublease, the terms of this Sublease control as between Sublandlord and Subtenant.
(e) Sublandlord does not assume and shall not have any of the obligations or liabilities of Landlord under the Prime Lease and that Sublandlord is not making the representations or warranties, if any, made by Landlord in the Prime Lease. With respect to work, services, repairs, repairs and restoration or the performance of other obligations required of Landlord under the Prime Lease, Sublandlord’ 's sole obligation is with respect thereto shall be to request the same, upon written request from following its receipt of Subtenant's request, and to use reasonable efforts to obtain the same from Landlord. All reasonable out-of-pocket costs , and expenses, including, without limitation, attorneys’ fees, incurred by Sublandlord in attempting to otherwise reasonably cooperate with Subtenant (provided such cooperation shall not require the expenditure of funds) to enforce Landlord’s 's obligations and liabilities under or to allow Subtenant to pursue the Prime Lease as aforesaid shall be reimbursed by Subtenant within twenty (20) days of notice from same in Sublandlord, and shall be deemed Rent due and payable under this Sublease's name. Sublandlord shall not be liable in damages damages, nor shall rent ▇▇▇▇▇ hereunder, for or on account of any failure by Landlord to perform the obligations and duties imposed on it under the Prime Lease.
(fd) Nothing contained in this Sublease shall be construed to create privity of estate or contract between Subtenant and Landlord, except the agreements of Subtenant in Section 8 of this Sublease (Cancellation of Lease) and Section 12 of this Sublease (Waiver of Claims and Indemnity) hereof in favor of Landlord, and then only to the extent of the same.
(e) Sublandlord covenants and agrees neither to do nor cause to be done, nor suffer, nor permit any act or thing to be done, which would or might cause the Prime Lease to be canceled, terminated, forfeited or surrendered. Sublandlord shall not enter into any modification or amendment to the Prime Lease which would materially and adversely affect Subtenant's rights or materially increase any obligations of Subtenant hereunder, without the written consent of Subtenant which consent shall not be unreasonably withheld or delayed. Notwithstanding anything contained in this Sublease to the contrary, nothing contained herein shall be construed to preclude Sublandlord from exercising any right to terminate the Prime Lease contained in the Prime Lease, including, without limitation, the right of Sublandlord under Section 3.4 of the Prime Lease to terminate the Prime Lease as of the Early Termination Date (the "Early Termination Option"). Sublandlord and Subtenant acknowledge and agree that it is Sublandlord's intent to exercise the Early Termination Option such that the Prime Lease term would terminate as of March 31, 2007.
Appears in 1 contract
Sources: Sublease (Axeda Systems Inc)
The Prime Lease. (a) This Sublease and all rights of Subtenant under this Sublease hereunder and with respect to the Sublet Premises are subject and subordinate to the terms, conditions, provisions and restrictions of the Prime Lease and Subtenant shall be bound by all of the terms, conditions, provisions and restrictions of the Prime Lease applicable to the Sublet Premises and responsible for performance thereof and compliance therewith, except as explicitly set forth herein. In addition, Subtenant acknowledges that upon a termination of the Prime Lease, except for this Sublease shall terminate, subject, however, to the terms of the Landlord Consent. Except as hereinafter provided, the terms, conditions, provisions and restrictions of the Prime Lease except as they conflict directly with are also incorporated into this Sublease or are deemed not applicable by reference and constitute additional terms and provisions of this Sublease, except that wherever in the Prime Lease the word “Tenant” appears, for purposes of this Sublease, the word “Subtenant” shall be substituted, wherever the word “Landlord” appears, for purposes of this Sublease, the word “Sublandlord” shall be substituted (subject to this the limitations hereinafter provided), wherever the word “Premises” appears, the words “Sublet Premises” shall be substituted, wherever the word “Term” appears, the word “Sublease pursuant Term” shall be substituted, wherever the phrase “Minimum Annual Rent” appears, the phrase “Sublease Base Rent” shall be substituted and wherever the word “Rent” is used, such term shall include, without limitation, Sublease Base Rent and Additional Rent; provided, however, Subtenant shall have no obligations whatsoever with regard to this any part of the Premises other than the Sublet Premises and the lobby reception area per Section 10(a)36 of the Prime Lease. Subtenant hereby assumes and agrees to perform faithfully and be bound by, with respect to the Premises, by all of Sublandlord’s obligations, covenants, agreements, agreements and liabilities under the Prime Lease applicable to the Sublet Premises, and all terms, conditions, provisions, terms and restrictions contained in the Prime Lease, except to the extent set forth in the preceding sentence, and except:
provisions thereof (i) for the payment of Base Rent (each as defined or used in the Prime Lease);
(ii) that, except as set forth in Section 9(a) aboveotherwise specifically provided herein), neither Sublandlord nor Subtenant needs to construct or install tenant improvements;
(iii) that none of the provisions in the Prime Lease allowing or purporting to allow any rights or options of lease expansion, reduction, cancellation, or extension, or any rent concessions or construction allowances, apply to this Sublease; and
(iv) Subtenant has a period of time equal which first arise and relate to the period from and after the date Subtenant takes possession or control of time that portions of the Sublet Premises per Section 2 above, except for the following provisions which are not incorporated into this Sublease by reference: 1(a), 1(d), 1(e), 1(f), 1(g), 1(h), 1(i), 1(m), 2, 28, 29, 30, 31, 32, 33, 37, and Exhibit “F”. For clarification, Sublandlord shall remain liable, as tenant under the Prime Lease has to respond to or otherwise cure any notices given by Landlord under the Prime Lease, less two (2) daysfor all matters or claims accruing or arising prior to the Sublease Commencement Date.
(b) Without limitation of the foregoing:foregoing (and notwithstanding anything to the contrary in any of the provisions of the Prime Lease which are incorporated herein by reference):
(i) Except with respect to the Future Alterations described in Section 9(e) above, Subtenant will shall not make any changes, alterations, decorations, remodels, additions or additions improvements (collectively, “Alterations”) in or to the Premises, except as permitted under the Prime Lease and subject to Sublet Premises without (A) Sublandlord’s prior written consent, which consent shall not may be unreasonably withheldwithheld in Sublandlord’s reasonable discretion, conditioned or delayed.(B) the prior written approval of Landlord to the proposed Alterations and the proposed general contractor performing the Alterations (to the extent required under the Prime Lease), (C) complying with all of the provisions of the Prime Lease with respect to Alterations (including without limitation the provisions of Sections 12 and 21 thereof), (D) payment of all costs and expenses incurred by Sublandlord and Landlord in connection with the Alterations (including any fees payable pursuant to the Prime Lease), and (E) Landlord’s written waiver of any obligation of Sublandlord and/or Subtenant to remove the Alterations at the expiration of the Prime Lease and to repair any damage caused by the removal. Notwithstanding the foregoing, the Alterations depicted on Exhibit E attached hereto and made a part hereof are hereby approved by Sublandlord;
(ii) If Subtenant desires to take any action, other action and the Prime Lease requires would require that Sublandlord to obtain the consent of Landlord before undertaking that type any action of actionthe same kind, Subtenant will shall not undertake the action same without the prior written consent of Sublandlord, which consent shall be given or withheld in accordance with the applicable standard set forth in the Prime Lease (i.e., if the Prime Lease provides Landlord can act in its sole discretion, Sublandlord may act in its sole discretion or if the Prime Lease requires Landlord to be reasonable, Sublandlord must also act reasonably). In all events, Sublandlord may condition its consent on the consent of Landlord being obtained and may require that Sublandlord shall reasonably assist Subtenant contact Landlord directly for its consent and that Subtenant take all other steps needed to assure that Sublandlord will have in obtaining Landlord’s consent, at no additional obligations cost to Landlord under the Prime Lease as a result of such action. Within twenty (20) days of notice from Sublandlord, Subtenant will reimburse so long as Sublandlord for all reasonable out-of-pocket costs, expenses, and attorneys’ fees that Sublandlord incurs in attempting is willing to obtain a consent, other than consent to the Landlord’s Consent, from Landlord.proposed action;
(iii) Sublandlord has, with respect to Subtenant, all rights, privileges, options, reservations, and remedies granted or allowed to, or held by, Landlord under the Prime Lease, except to the extent they are inconsistent with, or modified by the provisions of this Sublease, including without limitation, all All rights given to Landlord and its agents and representatives by the Prime Lease to enter the Prime Lease Space, upon reasonable notice Sublet Premises shall inure to the benefit of Sublandlord and accompanied by a representative of Subtenant, as provided therein.its agents and representatives with respect to the Sublet Premises;
(iv) Sublandlord shall also have all other rights, and all privileges, options, reservations and remedies, granted or allowed to, or held by, Landlord under the Prime Lease with respect to the Sublet Premises;
(v) Subtenant will shall maintain insurance of the kinds and in the amounts required to be maintained by Sublandlord under the Prime Lease with respect to the Sublet Premises. All policies of insurance to be maintained by Subtenant hereunder shall comply with the provisions of the Prime Lease. All policies of liability insurance maintained by Subtenant shall name as additional insureds Landlord, SVN Management, Inc., a California corporation, the Landlord and Sublandlord and their respective officers, directors, members, managers, or partners, as the case may be, and the respective agents and employees of each of them. In addition, Subtenant will furnish Landlord and Sublandlord with evidence of the insurance coverage in amounts that Landlord or Sublandlord may reasonably require.
(v) Neither Subtenant nor Sublandlord will do anything or suffer or permit anything any other parties required to be done that could result in a default so named under the Prime Lease or permit as otherwise requested by Sublandlord. On or prior to the Sublease Commencement Date, Subtenant shall deliver to Sublandlord and Landlord certificates of insurance satisfactory to cancel Sublandlord and Landlord evidencing the coverages required under the Prime Lease. , and forty five (45) days prior to the expiration of any such policies, Subtenant will provide Sublandlord agrees and Landlord with evidence satisfactory to hereinafter duly perform all Sublandlord of the termsrenewal thereof;
(vi) During the Sublease Term, Subtenant covenants and conditions on Sublandlord’s part agrees not to be performed as tenant under violate any of the terms of the Prime Lease except for those of same which have been undertaken by Subtenant pursuant are applicable to the Sublet Premises, the lobby reception area or the Common Areas; and
(vii) Subject to the terms of this SubleaseSublease and Section 41 of the Prime Lease (including any approvals required from Landlord or governmental authorities), including without limitation and otherwise subject to Sublandlord’s obligation consent, not to pay Base Rent be unreasonably withheld, Subtenant may exercise and benefit from Sublandlord’s rights under Section 41 of the Prime Lease dealing with Equipment to be installed on the roof of the Building, provided that Sublandlord hereby reserves the right, for its own use or for subtenants or other occupants of other portions of the Premises, to exercise and benefit from such same rights under Section 41. Therefore, if after the date of this Sublease either Sublandlord or one of its other subtenants or occupants of other portions of the Premises needs the right to install Equipment on the roof of the Building, Subtenant shall reasonably cooperate with Sublandlord to enable such subtenant, other occupant or Sublandlord to install Equipment on the roof of the Building and benefit from the rights under Section 41 and Subtenant may, among other reasonable actions, be required to relocate or modify its Equipment (at Sublandlord’s sole cost and expense) or place its Equipment in a smaller area in providing such reasonable cooperation. Access to the rooftop and the Equipment shall be through part of the Premises outside of the Sublet Premises so Subtenant shall coordinate reasonable access to the rooftop with Sublandlord and the other subtenants and occupants, as defined applicable, and such other subtenants and occupants shall permit Subtenant to reasonably access the rooftop as necessary to exercise its rights under such Section 41.
(c) Notwithstanding anything contained herein or in the Prime Lease) as tenant under Lease which may appear to be to the contrary (or the provisions of the Prime Lease. Lease which have been incorporated by reference), Sublandlord agrees that it shall not voluntarily surrender, assign and Subtenant hereby agree as follows:
(which assignment may only be made subject i) Pursuant to this Sublease) or enter into any amendment Section 18 of the Prime Lease, during the Term hereofas incorporated into this Sublease by reference, among other things, except as provided therein, Subtenant may not transfer, assign, sublet, enter into license or concession agreements, or mortgage or hypothecate this Sublease or any interest therein, without obtaining Sublandlord’s prior consent in each instance, not to be unreasonably withheld, conditioned or delayed, subject to the prior written consent terms and conditions of Subtenant.
(c) Sublandlord represents this Sublease and warrants to Subtenant that:
(i) the Prime Lease Lease. The procedure to be followed in connection with obtaining Sublandlord’s consent is as specified in full force and effect as Section 14 of the date hereof, and has not been modified or amended as of that date and the copy attached hereto as Exhibit A is a complete copy of the Prime Lease and First Amendment to Leasethis Sublease;
(ii) Sublandlord is not now in default under any provision of the Prime Lease;
(iii) as of the Effective Date, no notice has been received of a default by Sublandlord under the terms of the Prime Lease; and
(iv) to the best of Sublandlord’s actual knowledge, Landlord is not, as of the date hereof, in default in the performance or observance of its obligations under the Prime Lease.
(d) Despite anything contained in this Sublease or in the Prime Lease to the contrary, Sublandlord and Subtenant agree that:
(i) Neither Rent will not nor other payments hereunder shall ▇▇▇▇▇ by reason of any damage to or to, destruction of or condemnation with respect to the Sublet Premises or the Building or any part thereof or as the result of any interruption in any services provided to the Sublet Premises, unless, and then only to the extent that, rent rental and such other payments actually ▇▇▇▇▇ under the Prime Lease on account of such event and then such abatement shall be calculated on a proportionate basis by reducing (A) the Sublease Monthly Rent by the same percentage that Minimum Annual Rent is reduced under the Prime Lease and (B) Subtenant’s Proportionate Share by the same percentage that Tenant’s Share is reduced under the Prime Lease; provided, however, that with respect to any reductions in the Premises.Sublease Monthly Rent or Subtenant’s Proportionate Share as provided above, to the extent that the Sublet Premises are not adversely affected by reason of such damage, destruction or condemnation, then any such reductions shall be equitably adjusted to account for the portion of the Sublet Premises affected thereby;
(iiiii) Subtenant is shall not entitled have any right to any portion of the proceeds of any award for a condemnation or other taking, or a conveyance in lieu of a condemnation or takingthereof, of all or any portion of the BuildingBuilding or the Sublet Premises, provided that Subtenant may, to the extent permitted under the Prime Lease SpaceLease, or the Premises, but Subtenant may pursue assert a separate action against the applicable governmental authority claim for an award with respect to the taking of any of Subtenant’s trade moving costs, equipment, merchandise and fixtures or other removable property or to Subtenant’s costs and expenses of relocation as a result of (but not the condemnation or other taking.Personal Property);
(iiiiv) except as expressly set forth in this Sublease, Subtenant is shall not entitled have any right to exercise or have Sublandlord exercise any option under the Prime Lease, including, without limitation, any option to terminate or extend the term of the Prime Lease or lease additional space.space or terminate the Prime Lease;
(ivv) If As between Sublandlord and Subtenant, in the terms event of any conflict between the terms, conditions and provisions of the Prime Lease conflict with the terms and of this Sublease, the terms terms, conditions and provisions of this Sublease control shall, in all instances, govern and control;
(vi) Subtenant is not required to pay Minimum Annual Rent or any additional rental amounts directly to Landlord (as between Subtenant is required to pay Rent to Sublandlord only, except as set forth in Section 4 above); and
(vii) Except as expressly provided herein, any provisions in the Prime Lease allowing or purporting to allow Sublandlord any rent concessions or abatements or construction allowances do not apply to this Sublease.
(d) Sublandlord and SubtenantSubtenant shall each deliver to the other a copy of every notice hereafter received from Landlord affecting or relating to the Sublet Premises, or affecting or relating to the rights and/or obligations hereunder or under the Prime Lease with respect to the Sublet Premises, within five (5) business days following receipt thereof.
(e) It is expressly understood and agreed that notwithstanding the incorporation of certain terms and provisions of the Prime Lease into this Sublease by reference, Sublandlord does not assume and shall not have any of the obligations or liabilities of Landlord under the Prime Lease including, without limitation, for services or the performance of any maintenance or any other act respecting the Sublet Premises which is the responsibility of Landlord under the Prime Lease and that Sublandlord is not making the representations or warrantieswarranties or providing the indemnities, if any, made or provided by Landlord in the Prime Lease. With respect to work, services, repairs, repairs and restoration or the performance of other obligations required of Landlord under the Prime Lease, whether or not such provisions are incorporated into this Sublease by reference, Sublandlord’ ’s sole obligation is with respect thereto shall be to request the same, upon written request from Subtenant, and to use commercially reasonable efforts to obtain the same from Landlord. All reasonable outSuch efforts shall consist of, upon Subtenant’s request, promptly notifying Landlord of its non-of-pocket costs and expenses, including, without limitation, attorneys’ fees, incurred by Sublandlord in attempting to enforce Landlord’s obligations and liabilities performance under the Prime Lease as aforesaid shall be reimbursed by Subtenant within twenty (20) days upon obtaining actual knowledge thereof or upon receipt of notice thereof from Sublandlord, Subtenant) and shall be deemed Rent due and payable requesting that Landlord perform its obligations under this Subleasethe Prime Lease. Sublandlord shall not be liable in damages damages, nor shall Rent ▇▇▇▇▇ hereunder, for or on account of any failure by Landlord to perform the obligations and duties imposed on it under the Prime Lease, unless, and then only to the extent that, rental and other payments actually ▇▇▇▇▇ under the Prime Lease on account of such failure (with such abatement of Sublease Base Rent to be calculated by reducing the Sublease Base Rent by a percentage equal to the percentage by which the Minimum Annual Rent under the Prime Lease is reduced, except to the extent that the Sublet Premises are not adversely affected by such failure by Landlord). Sublandlord shall not be required to pay the cost of or provide any improvements to the Sublet Premises.
(f) Sublandlord will maintain the Prime Lease in full force and effect during the Sublease Term and will not cause or knowingly allow to be caused any default by Sublandlord under the Prime Lease which shall remain uncured at the expiration of the applicable cure period set forth therein and shall indemnify, defend, and hold harmless Subtenant from any loss, cost, liability or expense (including reasonable attorneys’ fees) which may arise as a result of a default by Sublandlord under the Prime Lease, unless such default was the result of a default by Subtenant under this Sublease; provided, however, that nothing contained herein shall be deemed to be obligate Sublandlord to cure any default under the Prime Lease which was caused by any act or omission of Subtenant or any failure of Subtenant to perform the obligations of Sublandlord under the Prime Lease that have been assumed by Subtenant under or incorporated in this Sublease.
(g) Nothing contained in this Sublease shall be construed to create privity of estate or contract between Subtenant and Landlord, except the agreements of Subtenant in Section 4(d), Section 10 and Section 11 hereof in favor of Landlord, and then only to the extent of the same.
(h) Sublandlord hereby represents and warrants as follows:
(i) Attached hereto as Exhibit A is a true, complete, and correct copy of the Prime Lease together with all amendments, modifications, riders and supplements thereto (if any), and other than a subordination, non-disturbance and attornment agreement between Sublandlord, Landlord and Landlord’s lender, there are no other agreements, amendments, modifications, riders, supplements, or other documents relating to the Prime Lease or the Sublet Premises;
(ii) The Prime Lease is in full force and effect, and to the best of Sublandlord’s knowledge, there are no defaults under the Prime Lease, and there are no circumstances which with the passage of time, or giving of notice, or both, would give rise to a default under the Prime Lease;
(iii) Sublandlord has not assigned, mortgaged, pledged, sublet, hypothecated or otherwise encumbered any of its rights or interests in and to the Sublet Premises;
(iv) To the best of Sublandlord’s knowledge, without independent investigation or inquiry, the Premises is free of any Hazardous Materials in quantities that violate Environmental Laws;
(v) Upon advance written notice by Subtenant to Sublandlord specifying a default by Landlord under the Prime Lease which affects the Sublet Premises, Sublandlord shall, at Subtenant’s expense, take all action reasonably necessary to cause the Landlord to comply with the terms of the Prime Lease applicable to the Sublet Premises;
(vi) Sublandlord shal
Appears in 1 contract
Sources: Sublease (CardioNet, Inc.)
The Prime Lease. (a) This Sublease and all rights of Subtenant under this Sublease hereunder and with respect to the Premises are subject to the terms, conditions, conditions and provisions of the Prime Lease, except for the provisions of the Prime Lease except as they conflict directly with this Sublease or are deemed not applicable to this Sublease pursuant to this Section 10(a). Subtenant hereby assumes and agrees to perform faithfully and be bound by, with respect to the Premises, all of Sublandlord’s obligations, covenants, agreements, agreements and liabilities under the Prime Lease and all terms, conditions, provisions, provisions and restrictions contained in the Prime Lease, except to the extent set forth in the preceding sentence, and Lease except:
(i) for the payment of Base Rent and Real Property Taxes (each as those terms are defined or used in the Prime Lease)) and utilities of the Building;
(ii) that, except as set forth in Section 9(a) above, neither Sublandlord nor that Subtenant needs shall not have any obligation to construct or install tenant improvements;, except as may be provided herein; and
(iii) that none the following provisions of the Prime Lease do not apply to this Sublease: any provisions in the Prime Lease allowing allowing, or purporting to allow any rights or options of lease expansionallow, reduction, cancellation, or extension, or Sublandlord any rent concessions or abatements or construction allowances, apply to this Sublease; and
(iv) Subtenant has a period of time equal to the period of time that the tenant under the Prime Lease has to respond to or otherwise cure any notices given by Landlord under the Prime Lease, less two (2) days.
(b) Without limitation of the foregoing:
(i) Except with respect to the Future Alterations described in Section 9(e) above, Subtenant will shall not make any changes, alterations, alterations or additions in or to the Premises, Premises except as permitted under the Prime Lease and subject to Sublandlord’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed.otherwise expressly provided herein;
(ii) If if Subtenant desires to take any action, other action and the Prime Lease requires would require that Sublandlord to obtain the consent of Landlord before undertaking that type any action of actionthe same kind, Subtenant will shall not undertake the action same without the prior written consent of Sublandlord. Sublandlord may condition its consent on the consent of Landlord being obtained and may require that Subtenant to contact Landlord directly for its consent and that Subtenant take all other steps needed to assure that Sublandlord will have no additional obligations to Landlord under the Prime Lease as a result of such action. Within twenty (20) days of notice from Sublandlord, Subtenant will reimburse Sublandlord for all reasonable out-of-pocket costs, expenses, and attorneys’ fees that Sublandlord incurs in attempting to obtain a consent, other than the Landlord’s Consent, from Landlord.;
(iii) Sublandlord has, with respect to Subtenant, all rights, privileges, options, reservations, and remedies granted or allowed to, or held by, Landlord under the Prime Lease, except to the extent they are inconsistent with, or modified by the provisions of this Sublease, including without limitation, all All rights given to Landlord and its agents and representatives by the Prime Lease to enter the premises covered by the Prime Lease Space, upon reasonable notice shall inure to the benefit of Sublandlord and accompanied by a representative of Subtenant, as provided therein.their respective agents and representatives with respect to the Premises;
(iv) Sublandlord also shall have all other rights, and all privileges, options, reservations and remedies, granted or allowed to, or held by, Landlord under the Prime Lease;
(v) Subtenant will shall maintain insurance of the kinds and in the amounts required to be maintained by Sublandlord under the Prime Lease. All policies of liability insurance maintained by Subtenant shall name as additional insureds Landlord, SVN Management, Inc., a California corporation, the Landlord and Sublandlord and their respective officers, directors, members, managers, managers or partners, as the case may be, and the respective agents and employees of each of them. In addition, Subtenant will furnish Landlord and Sublandlord with evidence of the insurance coverage in amounts that Landlord or Sublandlord may reasonably require.; and
(vvi) Neither Subtenant nor Sublandlord will shall not do anything anything, or suffer or permit anything to be done that done, which could result in a default under the Prime Lease or permit Landlord to cancel the Prime Lease. Sublandlord agrees to hereinafter duly perform all of the terms, covenants and conditions on Sublandlord’s part to be performed as tenant under the Prime Lease except for those of same which have been undertaken by Subtenant pursuant to the terms of this Sublease, including without limitation Sublandlord’s obligation to pay Base Rent (as defined in the Prime Lease) as tenant under the Prime Lease. Sublandlord agrees that it shall not voluntarily surrender, assign (which assignment may only be made subject to this Sublease) cancelled or enter into any amendment of the Prime Lease, during the Term hereof, without obtaining the prior written consent of Subtenantterminated.
(c) Sublandlord represents and warrants to Subtenant that:
(i) the Prime Lease is in full force and effect as of the date hereof, and has not been modified or amended as of that date and the copy attached hereto as Exhibit A is a complete copy of the Prime Lease and First Amendment to Lease;
(ii) Sublandlord is not now in default under any provision of the Prime Lease;
(iii) as of the Effective Date, no notice has been received of a default by Sublandlord under the terms of the Prime Lease; and
(iv) to the best of Sublandlord’s actual knowledge, Landlord is not, as of the date hereof, in default in the performance or observance of its obligations under the Prime Lease.
(d) Despite Notwithstanding anything contained in this Sublease herein or in the Prime Lease that may appear to be to the contrary, Sublandlord and Subtenant hereby agree thatas follows:
(i) Rent will Subtenant shall not ▇assign, mortgage, pledge, hypothecate or otherwise transfer, or permit the transfer of, this Sublease or any interest of Subtenant in this Sublease, by operation of law or otherwise, or permit the use of the Premises or any part thereof by any persons other than Subtenant and Subtenant’s employees, or sublet the Premises or any part thereof;
(ii) neither rental nor other payments hereunder shall a▇▇▇▇ by reason of any damage to to, or destruction of of, the Premises Premises, the premises subject to the Prime Lease or the Building or any part thereof, unless, and then only to the extent that, rent rental and such other payments actually ▇a▇▇▇▇ under the Prime Lease with respect to the Premises.Premises on account of such event;
(iiiii) Subtenant is shall not entitled have any right to any portion of the proceeds of any award for a condemnation or other taking, or a conveyance in lieu of a condemnation or takingthereof, of all or any portion of the Building, the premises subject to the Prime Lease Space, or the Premises, but Subtenant may pursue a separate action against the applicable governmental authority for an award with respect to the taking of any of Subtenant’s trade fixtures or other removable property or to Subtenant’s costs and expenses of relocation as a result of the condemnation or other taking.;
(iiiiv) except as expressly set forth in this SubleaseSubtenant shall not have any right to exercise, Subtenant is not entitled to exercise or have Sublandlord exercise exercise, any option under the Prime Lease, including, without limitation, any option to terminate or extend the term of the Prime Lease or lease additional space.; and
(ivv) If In the terms event of any conflict between the terms, conditions and provisions of the Prime Lease conflict with the terms and of this Sublease, the terms terms, conditions and provisions of this Sublease control as between Sublandlord shall, in all instances, govern and Subtenantcontrol.
(ed) It is expressly understood and agreed that Sublandlord does not assume and shall not have any of the obligations or liabilities of Landlord under the Prime Lease and that Sublandlord is not making the representations or warranties, if any, made by Landlord in the Prime Lease. With respect to work, services, repairs, repairs and restoration or the performance of other obligations required of Landlord under the Prime Lease, Sublandlord’ ’s sole obligation is with respect thereto shall be to request the same, upon written request from Subtenant, and to use reasonable efforts to obtain the same from Landlord. All reasonable out-of-pocket costs and expenses, including, without limitation, attorneys’ fees, incurred by Sublandlord in attempting to enforce Landlord’s obligations and liabilities under the Prime Lease as aforesaid shall be reimbursed by Subtenant within twenty (20) days of notice from Sublandlord, and shall be deemed Rent due and payable under this Sublease. Sublandlord shall not be liable in damages damages, nor shall rent a▇▇▇▇ hereunder, for or on account of any failure by Landlord to perform the obligations and duties imposed on it under the Prime Lease.
(fe) Nothing contained in this Sublease shall be construed to create privity of estate or contract between Subtenant and Landlord, except the agreements of Subtenant in Sections 10 and 11 hereof in favor of Landlord, and then only to the extent of the same.
Appears in 1 contract
Sources: Sublease (Immediatek Inc)
The Prime Lease. (a) This Sublease and all rights of Subtenant under this Sublease hereunder and with respect to the Subleased Premises are subject and subordinate to the terms, conditions, conditions and provisions of the Prime Lease, except for the provisions of the Prime Lease except as they conflict directly with this Sublease or are deemed not applicable to this Sublease pursuant to this Section 10(a). Subtenant hereby assumes and agrees to perform faithfully and be bound by, with respect to the Subleased Premises, all of Sublandlord’s obligations, covenants, agreements, agreements and liabilities under the Prime Lease and all terms, conditions, provisions, provisions and restrictions contained in the Prime Lease, except to the extent set forth in the preceding sentence, and except:
(i) for the payment of Base Rent (each as defined or used in the Prime Lease);
(ii) that, except as set forth in Section 9(a) above, neither Sublandlord nor Subtenant needs to construct or install tenant improvements;
(iii) that none . All of the provisions in terms, provisions, covenants and conditions of the Prime Lease allowing or purporting to allow any rights or options of lease expansion, reduction, cancellation, or extension, or any rent concessions or construction allowances, apply to this Sublease; and
(iv) Subtenant has are incorporated herein by reference and hereby made a period of time equal to the period of time that the tenant under the Prime Lease has to respond to or otherwise cure any notices given by Landlord under the Prime Lease, less two (2) dayspart hereof.
(b) Without limitation of the foregoing:
(i) Except If Subtenant desires to take any action with respect to the Future Alterations described in Section 9(e) aboveSubleased Premises or otherwise and the Prime Lease would require that Sublandlord obtain the consent of Landlord before undertaking any action of the same kind, Subtenant will shall not undertake the same without the prior written consent of Landlord and Sublandlord.
(ii) Without limiting the generality of the foregoing, Subtenant shall not make any changes, alterations, alterations or additions in or to the Premises, except as permitted under Subleased Premises without the Prime Lease prior consent of Landlord and subject to Sublandlord’s prior written consent, which consent of Sublandlord shall not be unreasonably withheld, conditioned or delayed.
(ii) If Subtenant desires to take any action. Any removal of such changes, and alterations or modifications required by Landlord or the provisions of the Prime Lease requires Sublandlord to obtain the consent of Landlord before undertaking that type of action, shall be performed by Subtenant will not undertake the action without the prior written consent of Sublandlord. Sublandlord may condition its consent on the consent of Landlord and may require that Subtenant contact Landlord directly for its consent and that Subtenant take all other steps needed to assure that Sublandlord will have no additional obligations to Landlord under the Prime Lease as a result of such action. Within twenty (20) days of notice from Sublandlord, Subtenant will reimburse Sublandlord for all reasonable out-of-pocket costs, expenses, and attorneys’ fees that Sublandlord incurs in attempting to obtain a consent, other than the Landlordat Subtenant’s Consent, from Landlord.sole cost;
(iii) Except as otherwise provided herein, Sublandlord has, with respect to Subtenant, shall have all rights, privileges, options, reservations, reservations and remedies with respect to the Subleased Premises granted or allowed to, to or held by, by Landlord under the Prime Lease, except to the extent they are inconsistent with, or modified by the provisions of this Sublease, including without limitation, all rights given to Landlord and its agents and representatives by the Prime Lease to enter the Prime Lease Space, upon reasonable notice and accompanied by a representative of Subtenant, as provided therein.;
(iv) Subtenant will shall maintain insurance of the kinds and in the amounts required to be maintained by Sublandlord under the Prime LeaseLease with respect to the Subleased Premises. All policies of liability insurance maintained by Subtenant shall name as additional insureds Landlord, SVN Management, Inc., a California corporation, Landlord and Sublandlord and their respective officers, directors, members, managers, directors or partners, as the case may be, and the respective agents and employees of each of them. In additionUpon Sublandlord’s request, Subtenant will shall furnish Landlord and Sublandlord with evidence certificates of insurance evidencing that Subtenant is carrying the insurance coverage in amounts that Landlord or Sublandlord may reasonably require.required to be carried by Subtenant hereunder; and
(v) Neither Subtenant nor Sublandlord will shall not do anything or suffer or permit anything to be done that which could result in a default under the Prime Lease or permit Landlord to cancel the Prime Lease. Sublandlord agrees to hereinafter duly perform all of the terms, covenants and conditions on Sublandlord’s part to be performed as tenant under the Prime Lease except for those of same which have been undertaken by Subtenant pursuant to the terms of this Sublease, including without limitation Sublandlord’s obligation to pay Base Rent (as defined in the Prime Lease) as tenant under the Prime Lease. Sublandlord agrees that it shall not voluntarily surrender, assign (which assignment may only be made subject to this Sublease) cancelled or enter into any amendment of the Prime Lease, during the Term hereof, without obtaining the prior written consent of Subtenantterminated.
(c) Sublandlord represents and warrants to Subtenant that:
(i) the Prime Lease is in full force and effect as of the date hereof, and has not been modified or amended as of that date and the copy attached hereto as Exhibit A is a complete copy of the Prime Lease and First Amendment to Lease;
(ii) Sublandlord is not now in default under any provision of the Prime Lease;
(iii) as of the Effective Date, no notice has been received of a default by Sublandlord under the terms of the Prime Lease; and
(iv) to the best of Sublandlord’s actual knowledge, Landlord is not, as of the date hereof, in default in the performance or observance of its obligations under the Prime Lease.
(d) Despite Notwithstanding anything contained in this Sublease herein or in the Prime Lease that may appear to be to the contrary, Sublandlord and Subtenant hereby agree thatas follows:
(i) Rent will Subtenant shall not assign, mortgage, pledge, hypothecate or otherwise transfer or permit the transfer of this Sublease or any interest of Subtenant in this Sublease, by operation of law or otherwise, or permit the use of the Subleased Premises or any part thereof by any persons other than Subtenant and Subtenant’s employees, agents and contractors or sublet the Subleased Premises or any part thereof, without the prior written consent of Landlord and Sublandlord.
(ii) Neither rental nor other payments hereunder shall ▇▇▇▇▇ by reason of any damage to or destruction of the Premises Subleased Premises, the Master Premises, or the Building or any part thereof, unless, and then only to the extent that, rent rental and such other payments actually ▇▇▇▇▇ under the Prime Lease with respect to the Premises.Subleased Premises on account of such event;
(iiiii) Subtenant is shall not entitled have any right to any portion of the proceeds of any award for a condemnation or other taking, or a conveyance in lieu of a condemnation or takingthereof, of all or any portion of the Building, the Prime Lease Space, Master Premises or the Subleased Premises, but Subtenant may pursue a separate action against the applicable governmental authority for an award with respect to the taking of any of Subtenant’s trade fixtures or other removable property or to Subtenant’s costs and expenses of relocation as a result of the condemnation or other taking.;
(iiiiv) except as expressly set forth in this Sublease, Subtenant is shall not entitled have any right to exercise or have Sublandlord exercise any option under the Prime Lease, including, without limitation, any option to terminate or extend the term of the Prime Lease or lease additional space.;
(ivv) If To the terms extent any of Sublandlord’s claims against the Landlord under the Prime Lease with respect to the Subleased Premises are assignable and Sublandlord fails to assert such claims against the Landlord within ten (10) days of Subtenant’s written request, Sublandlord assigns such claims to Subtenant; and
(vi) Subject to Section 6(a) above, as between Sublandlord and Subtenant, in the event of any conflict between the terms, conditions and provisions of the Prime Lease conflict with the terms and of this Sublease, the terms terms, conditions and provisions of this Sublease control as between Sublandlord shall, in all instances, govern and Subtenantcontrol.
(ed) It is expressly understood and agreed that Sublandlord does not assume and shall not have any of the obligations or liabilities of Landlord under the Prime Lease and that Sublandlord is not making the representations or warranties, if any, made by Landlord in the Prime Lease. With respect to work, services, repairs, repairs and restoration or the performance of other obligations required of Landlord under the Prime Lease, Sublandlord’ ’s sole obligation is with respect thereto shall be to request the same, upon written request from Subtenant, and to use reasonable efforts to obtain the same from Landlord. All reasonable out-of-pocket costs and expenses, including, without limitation, attorneys’ fees, incurred by Sublandlord in attempting at no expense to enforce Landlord’s obligations and liabilities under the Prime Lease as aforesaid shall be reimbursed by Subtenant within twenty (20) days of notice from Sublandlord, and shall be deemed Rent due and payable under this Sublease. Sublandlord shall not be liable in damages damages, nor shall rent ▇▇▇▇▇ hereunder, for or on account of any failure by Landlord to perform the obligations and duties imposed on it under the Prime Lease. Similarly, Subtenant does not assume any of the obligations or liabilities of Sublandlord under the Prime Lease with respect to the Master Premises, to the extent such obligations or liabilities are more extensive than the obligations and liabilities undertaken by Subtenant hereunder with respect to the Subleased Premises.
(fe) Nothing contained in this Sublease shall be construed to create privity of estate or contract between Subtenant and Landlord, except the agreements of Subtenant in Sections 10 and 11 hereof in favor of Landlord, and then only to the extent of the same.
(f) Subtenant acknowledges that it has received a true copy of the Prime Lease, that it has reviewed the Prime Lease, and that it is familiar with the contents thereof.
Appears in 1 contract