CONSENT TO SUBLEASE
THIS CONSENT TO SUBLEASE ("Consent Agreement") is executed effective the
1st day of April, 2005 by and among Xxxxxx Investment Properties, LLC, an Oregon
limited liability company, ("Landlord"), Gateway, Inc., a Delaware corporation,
("Tenant"), and SpaceDev, Inc., a Colorado corporation, ("Subtenant").
Landlord and Tenant are parties to that certain Lease dated May 14, 2001,
as amended (the "Lease"). Landlord acquired the business park containing the
Premises and was assigned the Landlord's interest under the Lease, as amended,
effective November 9, 2001. Tenant desires to sublet all (11,069 square feet)
of the Premises covered by the Lease to Subtenant, pursuant to a separate
sublease (the "Sublease"). Under the Lease, such a Sublease requires the prior
written consent of Landlord, which consent shall not be unreasonably withheld,
conditioned or delayed. Landlord is willing to grant such consent, on the
following terms and conditions.
1. Sublease. Tenant and Subtenant warrant that a true copy of the
Sublease is attached hereto as Exhibit "A." Tenant and Subtenant covenant to
deliver to Landlord upon execution any subsequent amendment or addendum
regarding the Sublease.
2. Consent. Landlord hereby consents to the Sublease on the terms set forth
in this Consent Agreement. The consent granted herein is a consent only to the
act of subletting; it is not a consent, agreement, or approval of or to any of
the terms and provisions of the Sublease nor is it a representation by Landlord
that any warranties made in connection with or as a part of the Sublease are
accurate. This Consent Agreement is not a waiver of any default by Tenant, nor
of any right of Landlord. Regardless of the terms and provisions of the
Sublease, Landlord shall continue to be entitled to full performance of all of
the terms of the Lease, even if the Sublease may specify different or lesser
performance than does the Lease.
3. Other Consents. Landlord retains all rights under the Lease, including
all rights with respect to any other or future sublease or assignment, any
alterations, any changes of use, and any other matter. This Consent Agreement is
not a consent to any future assignment or sublease and is not a waiver of the
requirement to seek and to obtain consent for the same.
4. Lease Obligations. Subtenant hereby agrees to be bound by and to
perform all of the obligations of the Tenant under the Lease . Without limiting
the generality of the foregoing, (a) Subtenant shall indemnify and defend
Landlord on the same terms as Tenant is required to do so by the Lease, and (b)
Subtenant hereby waives and releases all claims against Landlord, and
acknowledges that the liability of Landlord to Subtenant is limited, all on the
same basis as Tenant has done so pursuant to the terms of the Lease. Subtenant
is not, however, granted any right to enforce the Lease against Landlord.
5. Continued Liability. Nothing herein shall be deemed a waiver or a
release of any obligation or liability of Tenant under the Lease. Tenant shall
remain fully liable and responsible under the Lease. No consent, amendment or
indulgence attributable to Landlord with respect to the Lease or Sublease shall
release Tenant from any such liability or obligation.
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6. Attribution. Any act or omission attributable to Subtenant shall also be
attributable to Tenant such that, if such act or omission had been committed by
Tenant and would constitute a default under the Lease, the same shall constitute
a default under the Lease.
7. Changes. This Consent Agreement is not a consent to any alteration of
the Premises or change in use of the Premises.
8. Lease Termination. The Sublease is and shall be subject and subordinate
to the Lease. In the event Landlord terminates the Lease and/or Tenant's right
of possession of the Premises pursuant to the Lease, or in the event the Lease
otherwise terminates, such event shall not be deemed (by merger or otherwise) to
be a transfer of the Sublease to Landlord. Rather, in such event, the Sublease
shall be deemed to be terminated by Tenant and Subtenant; provided, however,
Landlord shall have the right, in its discretion, to elect that such event does
constitute an assignment to Landlord of the Sublease. In the event of such
assignment, Subtenant shall tender all performance under the Sublease to
Landlord and Landlord shall have all rights as lessor under the Sublease,
provided, (a) Landlord shall not be bound by any amendment of or waiver of
lessor rights under the Sublease, (b) Landlord shall not credit Subtenant nor be
liable to Subtenant for any security deposit, prepaid rent, or other prepaid
amount which shall have been deposited with or prepaid to Tenant, and (c)
Landlord shall not be liable for nor obligated to cure or remedy any default or
failure on the part of Tenant under the Sublease.
9. Notices. Landlord assumes no obligation to send any notice to Subtenant.
In the event Landlord desires to send any notice to Subtenant, such notice shall
be given and deemed received as set forth in Section 27 of the Lease. The
address to be used for Subtenant is Spacedev, Inc., 00000 Xxxxx Xxxxx, Xxxxx,
Xxxxxxxxxx, 00000, attention Xxxxxxx X. Xxxxxxx.
10. Insurance. Upon execution hereof, Subtenant shall deliver to Landlord
certificates evidencing insurance as described in Section 11 of the Lease.
11. Performance. Landlord shall have no obligation to accept payment or
performance of any obligation of Tenant from Subtenant. Acceptance of any
payment or performance by Landlord from Subtenant shall not constitute consent
to any assignment to Subtenant nor vest in Subtenant any other or further
rights.
12. Confirmation. By execution below, Tenant agrees and acknowledges that
to the best of Tenant's knowledge, Landlord has performed all of its obligations
under the Lease to date, including, but not limited to, those obligations
related to this Consent Agreement.
13. Security Deposit. All rights with respect to any security deposit paid
by Tenant to Landlord shall be determined exclusively pursuant to the Lease, and
Subtenant shall have no right to such security deposit.
14. Default. All obligations of Tenant and Subtenant hereunder are
covenants in favor of Landlord. Without limiting any other right or remedy of
Landlord, any failure by Tenant or Subtenant to perform any such covenant shall
be deemed to be a failure by Tenant to perform a material obligation under the
Lease.
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15. Conditions Precedent. This Consent Agreement shall be effective only
when (a) the same shall have been executed and delivered by all parties, (b) the
required insurance certificate(s) shall have been delivered to Landlord, (c) the
Sublease shall have been fully executed and delivered and evidence of the same
shall have been delivered to Landlord, and (d) the sum of $1,000.00 shall have
been paid to Landlord. If these conditions are not met by April 30, 2005, this
Consent Agreement shall be void.
IN WITNESS WHEREOF, this Consent Agreement is executed as of the date
and year first above written.
LANDLORD:
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By: /s/ Xxxxxxx X. Xxxxxxxx
Its: Vice President
On: April 14, 2005
TENANT: Gateway, Inc
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By: /s/ X.X. Xxxxxxx
Its: Sr. Director
SUBTENANT: SpaceDev, Inc
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By: /s/ Xxxxxxx X. Xxxxxxx
Its: President
Exhibits
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A - Sublease
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