EX-10.1
Sub-Lease Agreement
CONSENT TO SUBLEASE
THIS CONSENT TO SUBLEASE ("Consent Agreement") dated as of July1, 1999,
is made with reference to that certain sublease (the "Sublease") dated as of
July1, 1999 between Xxxxx & Xxxxx, Inc. ("Tenant") and Xxxx Hallitex Corporation
("Sublessee"), and is entered into between the foregoing parties and
FBEC-Brickell Key Centre, L.P. ("Landlord"), with reference to the following
facts:
A. Landlord (as successor to Swire Brickell One Inc.) and Tenant are
the parties to that certain master lease dated as of April 22, 1997, (the
"Master Lease"), respecting certain premises ("Premises") located in the
building located at 000 Xxxxxxxx Xxx Xxxxx, Xxxxx, Xxxxxxx 00000 and known as
Courvoisier Centre I (the "Building").
B. Tenant and Sublessee wish to enter into the Sublease respecting the
portion of the Premises described therein (the "Sublease Premises").
C. The Master Lease provides that Tenant may not enter into the
Sublease without Landlord's prior written approval.
D. Tenant and Sublessee have herewith presented the fully-executed
Sublease to Landlord for Landlord's approval, and Landlord is willing to approve
the same, upon all of the terms and conditions hereinafter appearing.
NOW, THEREFORE, for good and valuable consideration, Landlord hereby
consents to the execution and delivery of the Sublease by Tenant and Sublessee
on the terms and conditions set forth herein, and the parties hereto agree as
follows:
1. Neither the Master Lease, the Sublease nor this Consent Agreement
will be deemed to grant Sublessee any rights whatsoever against Landlord except
as expressly set forth in this Consent Agreement. Sublessee hereby acknowledges
and agrees that its sole remedy for any alleged or actual breach of its rights
under the Sublease in connection with the Sublease Premises will be solely
against Tenant.
2. The parties hereto intend the Sublease to be subject and subordinate
to all provisions of the Master Lease. Nothing in the Sublease will supersede
any of the terms, covenants or conditions of the Master Lease. Nothing in the
Sublease will in any way whatsoever expand the liability or obligations of
Landlord, whether to Tenant, Sublessee or any other person or entity, or
diminish the rights of Landlord against any person or entity liable or
responsible for the performance of the Lease. Landlord hereby expressly
disapproves anything in the Sublease that does so expand the liability or
obligations of Landlord or diminish such rights of Landlord.
3. This Consent Agreement will not release Tenant from any existing or
future duty, obligation or liability to Landlord pursuant to the Master Lease,
nor will this Consent Agreement change, modify or amend the Master Lease in any
manner. This Consent will not be deemed consent to any further subleases by
Tenant. Subtenant may not subsublease all or any portion of the Sublease
Premises or assign the Sublease except in accordance with the Master Lease
provisions pertaining to subleases and assignments, and in accordance with the
Sublease provisions (if any) pertaining to subsubleases and assignments.
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4. Notwithstanding anything herein to the contrary, this Consent
Agreement is not a consent or an agreement by Landlord to the particular terms
and conditions of the Sublease.
5. In addition to Landlord's rights under this Consent Agreement, in
the event Tenant is in default under any of the terms and provisions of the
Master Lease, Landlord may elect to receive directly from Sublessee all sums due
or payable to Tenant by Sublessee pursuant to the Sublease, and upon receipt of
Landlord's notice, Sublessee will thereafter pay to Landlord any and all sums
becoming due or payable under the Sublease and Tenant will receive from Landlord
a corresponding credit for such sums against any payments then due or thereafter
becoming due from Tenant. Neither the service of such written notice nor the
receipt of such direct payments will cause Landlord to assume any of Tenant's
duties, obligations or liabilities under the Sublease. Any termination of the
Master Lease for any cause whatever will at Landlord's option, either (a)
immediately terminate the Sublease or (b) operate as an assignment to Landlord
of any Sublease then existing between Tenant and Sublessee affecting all or a
portion of the Premises. Landlord will not be liable for any prepaid rents nor
any security deposits paid by Sublessee. Landlord will not be liable for any
other defaults of the Tenant under the Sublease. Sublessee will attorn to
Landlord upon Landlord's request.
6. This Consent Agreement will not be deemed an expressed or implied
affirmation or representation of any factual statements or recitations contained
in the Sublease, whether relating to the Master Lease or otherwise, it being
understood that Sublessee is fully responsible for reviewing and familiarizing
itself with all of the terms and conditions of the Master Lease.
7. Tenant's obligation to indemnify and hold Landlord harmless as set
forth in Article 22 of the Master Lease will include indemnification from any
claims arising from the use of the Premises, or any portion thereof, by
Sublessee, its agents, employees or contractors. The waivers and indemnities by
Tenant set forth in the Master Lease are hereby remade by Sublessee.
8. Sublessee hereby acknowledges that it has read and has knowledge of
all of the terms, provisions, rules and regulations of the Master Lease and
agrees not to do or omit to do anything which would cause Tenant to be in breach
of the Master Lease. Any such act or omission will also constitute a breach of
this Consent and will entitle Landlord to recover any damage, loss, cost or
expense which it thereby suffers, from Sublessee, whether or not Landlord
proceeds against Tenant.
9. Tenant and Subtenant hereby represent, covenant and warrant to
Landlord that no compensation or other consideration of any kind (including,
without limitation, the rendering of services or the supplying of goods or
materials for other than full and fair value), other than as set forth in the
Sublease, has been or will be paid by Tenant or Subtenant in connection with the
aforesaid Sublease.
10. In the event of any litigation between the parties hereto with
respect to the subject matter hereof, the unsuccessful party agrees to pay the
successful party all costs, expenses and reasonable attorney's fees incurred
therein by the successful party, which shall be included as a part of the
judgment therein rendered.
11. This Consent Agreement will be binding upon and inure to the
benefit of the parties' respective successors and assigns, subject to all
agreements and restrictions contained in the Master Lease, the Sublease and
herein with respect to subleasing, assignment, or other transfer. The agreements
contained herein constitute the entire understanding between the parties with
respect to the subject matter hereof, and supersede all prior agreements,
written or oral, inconsistent herewith. No amendment, modification or change
therein will be effective unless Landlord gives its prior written consent
thereto. This Consent Agreement may be amended only in writing, signed by all
parties hereto.
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12. Tenant and Sublessee agree to indemnify and hold Landlord harmless
from and against any loss, cost, expense, damage or liability, including
reasonable attorneys' fees, incurred as a result of a claim by any person or
entity (i) that it is entitled to a commission, finder's fee or like payment in
connection with the Sublease or (ii) relating to or arising out of the Sublease
or any related agreements or dealings.
13. To the extent there are any conflicts between the terms of the
Sublease and this Consent Agreement, the terms of this Consent Agreement will
control.
14. The liability of Landlord to Tenant or Sublessee or both under this
Consent Agreement will be limited to the interest of Landlord in the Building
and surrounding property, and Tenant agrees to look solely to Landlord's
interest in the Building and the surrounding property for the recovery of any
judgment from the Landlord, it being intended that Landlord will not be
personally liable for any judgment of deficiency.
15. Terms used but not defined in this Consent Agreement and which are
defined in the Master Lease will have the same meaning for purposes hereof as
they have in the Master Lease.
16. Tenant shall pay for the reasonable costs, including legal fees,
incurred by Landlord in connection with this Consent.
IN WITNESS WHEREOF, the following parties have executed this Consent to
Sublease as of the date first above written.
TENANT:
WITNESSES: XXXXX & XXXXX, INC.
By: ----------------------------------
Name:
Name: --------------------------------
Name: Its: ---------------------------------
SUBLESSEE:
XXXX HALLITEX CORPORATION
By: ----------------------------------
Name:
Name: --------------------------------
Name: Its: ---------------------------------
LANDLORD:
By: ----------------------------------
Name:
Name: --------------------------------
Name: Its: ---------------------------------
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