Sample Sublease

SUBLEASE This sublease made this 1st day of September, 2003, by and between CORPORATION, a Delaware corporation, having a principal office at ADDRESS ("Sublessor") and ____________, a [state] corporation, having its principal office at ______________, ("Sublessee"). WHEREAS, Sublessor leases approximately 3,387 rentable square feet of space (the "Premises") in a building located at Suite 101 of the Ventura Corporate Plaza building located at 8687 East Via de Ventura, Scottsdale, AZ 85258 (the "Building"), pursuant to a certain lease dated June 17, 1999, as amended by a 1st Addendum to Lease dated August 1, 2000, made by and between Sublessor as tenant, and Midvale Properties, Inc. as landlord ("Landlord"), which Lease is attached hereto as Exhibit A and made a part hereof, subject to the provisions of Section 6 and Section 21 below; and WHEREAS, Sublessee wishes to sublet the entire Premises (the "Sublet Premises") from Sublessor; and WHEREAS, Sublessor wishes to sublet the Sublet Premises to Sublessee upon certain terms and conditions. NOW, THEREFORE, in consideration of the rental payments to be made hereunder by Sublessee to Sublessor and the mutual terms, covenants, and conditions hereinafter set forth, and subject to the terms and conditions hereof, Sublessor does hereby sublet to Sublessee and Sublessee does hereby take and hire from Sublessor, the Sublet Premises. 1. Term. (a) The term of this Sublease (the "Term") shall commence on September 1, 2003 (the "Commencement Date") and terminate on July 31, 2004 (the "Expiration Date"), unless sooner terminated or extended under the terms of the Lease or this Sublease. Sublessor and Sublessee agree to confirm the actual Commencement Date in writing; however, the failure to so confirm shall have no effect on the Commencement Date or Expiration Date. Should the Lease terminate during the term of this Sublease for any reason, due to any cause or circumstances whatsoever, other than the default of, or the surrender of the Premises by Sublessor, this Sublease shall terminate on the date of such termination of the Lease with the same force and effect as if such Termination Date had been specified in this Sublease as the Expiration Date. Notwithstanding the foregoing, if the Lease gives Sublessor any right to terminate the Lease in the event of the partial or total damage, destruction, or condemnation of the Premises or the Building, the exercise of such right by Sublessor shall not constitute a default or breach hereunder. (b) (c) Possession of the Sublet Premises ("Possession") shall be delivered to Sublessee on the Commencement Date. If for any reason Sublessor does not deliver Possession to Sublessee on the Commencement Date, Sublessor shall not be subject to any liability for such failure, the Termination Date shall not be extended by the delay, and the validity of this Sublease shall not be impaired, but rent shall abate until delivery of Possession. If Sublessor permits Sublessee to take Possession prior to the Commencement Date, such early Possession shall not advance the Termination Date and shall be subject to the provisions of this Sublease, including without limitation, payment of rent. (d) 2. Rent. (a) Sublessee covenants and agrees to pay Sublessor during the term of this Sublease (i) base rent in the amount of FIFTEEN AND 00/100 dollars ($15.00) per square foot per annum, payable in equal monthly installments of FOUR THOUSAND THIRTY THREE AND 75/100 dollars ($4233.75), plus an amount equal to any excise, privilege or sales taxes levied on the rental; as additional rent, an amount equal to Sublessee's share of amounts payable by Sublessor to the Landlord pursuant to the Lease on account of additional rent, including, without limitation, all amounts payable under Section V of the Lease, including any and all escalations of amounts paid thereunder; as additional rent, electricity charges for the Sublet Premises, as billed by Landlord, within ten (10) days of Sublessor's receipt of such statement; as additional rent, any amounts billed by Landlord with respect to the Sublet Premises for HVAC charges and/or water charges as provided on the Lease with ten (10) days of Sublessee's receipt of an invoice therefore; and as additional rent, such other sums of money as shall become due and payable by Sublessor to Landlord pursuant to the Lease due to the actions or inactions of the Sublessee in default of this Sublease within thirty (30) days of Sublessee's receipt of an invoice thereof. (ii) (iii) (iv) (v) (b) The base rent shall be paid to Sublessor at the address set forth in Section 14 of this Sublease, or at such other place as Sublessor may designate, in advance, on the first day of each and every month throughout the term of this Sublease, without any notice, set off, or deduction whatsoever. All additional rent shall be paid to Sublessor at the address set forth in Section 14 of this Sublease, or at such other place as Sublessor may designate, on 2 the first day of each month during the term of this Sublease in the estimated amounts billed to Sublessee by Sublessor, without any notice, set off, or deduction whatsoever, with reconciliation of such estimated payments with the actual tenant share to be made between Sublessor and Sublessee within thirty (30) days of Sublessor's reconciliation with Landlord. If Sublessee fails to pay any rent or additional rent within ten (10) days after same is due, such unpaid amount shall bear a 5 percent (5%) late charge, which will be immediately due and payable. The payment of such late charge shall be in addition to all other rights and remedies available to Sublessor in the case of nonpayment of base rent or additional rent. For any partial month, rent and additional rent shall be prorated on the basis of a thirty (30) day month. (c) Sublessee's obligation to make such payments of rent and additional rent shall survive the Expiration Date or sooner termination of this Sublease. 3. Taxes. Sublessee shall pay before delinquency all occupancy taxes relating to Sublessee's occupancy, all rent taxes payable with respect to the fixed rent payable hereunder, and all property taxes and assessments on the furniture, fixtures, equipment, and other property of Sublessee at any time situated on, or installed in the Sublet Premises. 4. Use. Sublessee shall use the Sublet Premises for general office use and for no other purposes. Sublessee shall use and occupy the Sublet Premises in a manner not inconsistent with the terms of the Lease. Sublessee shall comply, at Sublessee's sole cost and expense, with all applicable federal, state, and local laws, regulations, codes, ordinances, and administrative orders having jurisdiction over the Sublet Premises, including without limitation, the Americans with Disabilities Act, the 1964 Civil Rights Act, the Foreign Investment in Real Property Tax Act, the Comprehensive Environmental Response Compensation and Liability Act, and the Resource Conservation and Recovery Act, and all amendments to any such laws. 5. Compliance with Underlying Lease. Sublessee covenants and agrees, to the extent the same relates to the Sublet Premises, to observe and perform all of the terms, covenants, and conditions to be performed by Sublessor, as tenant, under the Lease, and further covenants and agrees not to do or suffer or permit anything to be done which would result in a default under or cause the Lease to be terminated. All of the terms, covenants, and conditions of the Lease are hereby incorporated herein with the same force and effect as if herein set forth in full and wherever the term "Tenant" occurs in the Lease the same shall be deemed to refer to Sublessee and wherever the term "Landlord" occurs in the Lease, the same shall be deemed to refer to Sublessor, except as limited by Section 6 below. However, all grace and cure periods specified in the Lease shall, for purposes of determining compliance by Sublessee with the provisions hereof, be each reduced by five (5) days. In relation to Sublessee performing the obligations of Sublessor, as tenant, pursuant to the Lease, said obligations shall be those of Sublessor in relation to the Sublet Premises. 6. Performance by Landlord. Sublessor does not assume any obligation to perform the terms, covenants, and conditions contained in the Lease on the part of the Landlord to be 3 performed. In the event Landlord shall fail to perform any of the terms, covenants, and conditions contained in the Lease on its part to be performed, Sublessor shall be under no obligation of liability whatsoever to Sublessee. Sublessor shall cooperate with Sublessee, at no cost to Sublessor, in seeking to obtain the performance of Landlord under the Lease. In addition, Sublessee shall have the right to take any action against the Landlord in its own name, and for that purpose and only to such extent, all of the rights of Sublessor under the Lease shall be and they hereby are conferred upon and assigned to Sublessee, and Sublessee shall be subrogated to such rights to the extent the same shall apply only to the Sublet Premises. In any event, Sublessee shall not be allowed any abatement or diminution of rent or additional rent under this Sublease because of Landlord's failure to perform any of its obligations under the Lease. Notwithstanding the foregoing, if Sublessor receives an abatement or diminution of rent or additional rent from Landlord that relates to the Sublet Premises, Sublessee shall be entitled, after deducting from such amount a proportionate share of all expenses incurred by Sublessor in connection with the obtainment of such abatement or diminution, as the case may be, to a proportional abatement or diminution of fixed rent or additional rent. 7. Security Deposit. As additional security for faithful and prompt performance of its obligations, Sublessee shall concurrently with the execution of this Sublease pay to Sublessor the sum of FIVE THOUSAND AND 00/100 dollars ($5,000.00) (the "Security Deposit"). The Security Deposit does not need to be segregated by Sublessor, and Sublessor may, but shall not be obligated to, apply the Security Deposit to cure any default or defaults of Sublessee. Sublessor shall not pay any interest on the Security Deposit, except as required by law. If Sublessor has not applied all of the Security Deposit to cure one or more defaults under this Sublease, then the Security Deposit, or such remaining portion thereof, shall be paid to Sublessee thirty (30) days after the termination of this Sublease. In the event Sublessor expends all or any part of the Security Deposit to cure a default, then, on notice from Sublessor to Sublessee, Sublessor shall pay to Sublessee an amount sufficient to replenish the Security Deposit to the sum of FIVE THOUSAND AND 00/100 dollars ($5,000.00). The Security Deposit shall not be deemed an advance payment of rent or a measure of Sublessor's damages for any default hereunder by Sublessee. 8. Assignment. Sublessee shall not have the right to (a) assign or transfer any interest in this Sublease without the prior, written consent of Sublessor and Landlord, which consent may be withheld for any reason; further sublet the Sublet Premises without the prior, written consent of Sublessor and Landlord, which consent may be withheld for any reason; nor use the Sublet Premises for any purpose other than general office purposes. (b) (c) 9. Insurance. Sublessee shall maintain the insurance required in the Lease, provided, however, that all rights and benefits specified for Landlord pursuant to the Lease shall apply to 4 any inure to the benefit of Landlord and Sublessor. Sublessee shall cause Sublessor and Landlord to be named as additional insureds in said policy or policies which shall contain provisions that it or they will not be cancelable upon except upon at least thirty (30) days prior notice to all insureds and that the act or omission of one insured will not invalidate the policy as to the other insureds. Upon the execution of this Sublease, Sublessee shall deliver to Sublessor a certificate of insurance evidencing said insurance coverage. 10. Condition of Sublet Premises. Sublessee represents that it has inspected the Sublet Premises and agrees to accept them in their present, "as is" condition. Sublessee acknowledges that no representations, express or implied, with respect to the condition of the Sublet Premises have been made to the Sublessee by the Sublessor. Any work required by Sublessee to prepare the Sublet Premises for its occupancy shall be paid for by Sublessee and shall be subject to all of the conditions set forth in this Sublease and/or the Lease. 11. Default. In the event that Sublessee (a) (b) (c) (d) fails to fulfill any of the terms, obligations, covenants, and conditions of this Sublease; fails to perform any of the terms, obligations, covenants, and conditions of the Lease with respect to the Sublet Premises; shall be adjudged bankrupt or insolvent or shall make an assignment for the benefit of creditors; or if a receiver or trustee of the Sublessee's property shall be appointed and not discharged within sixty (60) days, such occurrence shall be an event of default and Sublessor shall have any and all rights and remedies available to it at law and equity, including all of the rights and remedies of Landlord described in the Lease, which are hereby incorporated herein and made a part hereof with the same force and effect as if herein specifically set forth in full, and that wherever in the Lease rights and remedies are given to Landlord, the same shall be deemed to refer to Sublessor. 12. Sublease Consent. This Sublease shall become effective only if the written consent hereto of Landlord is obtained. If such written consent is not obtained then this Sublease shall be void and of no force or effect and Sublessor shall return to Sublessee the first month's rent, and thereupon neither party shall have any further obligation to the other. Both parties shall promptly furnish to the Landlord any information reasonably required to be furnished by the Landlord and to execute any consent form reasonably required by the Landlord. 13. Indemnity. Sublessee shall and hereby does indemnify, defend, and hold Sublessor harmless from and against any and all actions, claims, demands, damages, liabilities, and expenses asserted against, imposed upon, or incurred by Sublessor by reason of 5 (a) any violation caused, suffered, or permitted by Sublessee, its agents, contractors, servants, licenses, employees, or invitees, of any of the terms, covenants, or conditions of the Lease or this Sublease; and any damage or injury to persons or property occurring upon or in connection with the use or occupancy of the Sublet Premises. (b) Sublessee's obligations under this Section 13 shall survive the Expiration or earlier termination of this Sublease. 14. Notice. Any notice, approval, request, consent, bill, statement, or other communication required or permitted to be given, rendered, or made by either party hereto, shall be deemed given when received, shall be in writing, and shall be sent to the parties hereto by certified U.S. mail, postage prepaid, return receipt requested, or a recognized overnight delivery service such as Federal Express, at the following addresses: If to Sublessor: CORPORATION ADDRESS ttention: Legal Department Telephone Telecopier If to Sublessee: __________________ __________________ __________________ __________________ __________________ Each party shall have the right to designate by notice in writing any other address to which such party's notice is to be sent. 15. Surrender of Sublet Premises. On the date upon which the term hereof shall expire or come to an end, whether on the Expiration Date, by lapse of time, or otherwise, Sublessee, at Sublessee's sole cost and expense, shall quit and surrender the Sublet Premises to Sublessor in the same good order and condition as Sublessor is delivering them to Sublessee, ordinary wear and tear accepted. 16. Subordination. This Sublease shall, at Landlord's option, be subordinate or superior to the lien of any mortgage covering the Building. Sublessee shall execute promptly any instrument that Landlord may request to confirm that this Sublease is superior or subordinate in lien to any mortgage pursuant to the foregoing provisions of this paragraph. In the event of a foreclosure of a mortgage covering the Building, which mortgage is pursuant to the foregoing provisions of this paragraph prior in lien to this Sublease, then notwithstanding such foreclosure, Sublessee shall not disaffirm this Sublease or any of its obligations hereunder and at the request 6 of the mortgagee or the purchaser at the foreclosure sale, Sublessee shall attorn to such mortgagee or purchaser and if required, execute a new Sublease for the Sublet Premises on all the same terms and conditions of this Sublease, except that the term of such new sublease shall be for the balance of the term of this Sublease. 17. Consent. Sublessee acknowledges that where consent of Landlord is required under the Lease, Sublessor's consent is also required. 18. Access. The Sublessor, its agents, employees, prospective purchasers, prospective mortgagees, and prospective lessees may, from time to time, enter the Sublet Premises during the term of this sublease, at reasonable business hours. 19. Severability. If any term or provision of this Sublease or the application thereof to any person or circumstance shall to any extent be invalid or unenforceable, the remainder of this Sublease or the application of such term or provision to persons or circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby; and each term and provision of this Sublease shall be valid and be enforceable to the fullest extent permitted by law. 20. Broker Indemnity. Each party represents to the other that no broker participated in the negotiations leading to the Sublessee's rental of the Sublet Premises from the Sublessor. Each party hereunder agrees to indemnify and hold the other party harmless from and against any claim or demand of any broker or agent who claims that he or she participated with that party in this transaction, and such indemnity shall survive the Expiration Date or earlier termination of this Sublease. 21. RESERVED. 22. Limitation of Liability. In no event shall Sublessor ever be liable to Sublessee for penalties or liquidated damages, or for special, indirect, consequential, or incidental losses or damages including, but not limited to, lost profits, lost or damaged data, loss of use of facility or equipment, or the failure or increased expense of operations, regardless of whether any such losses or damages are characterized as arising from breach of contract, breach of warranty, tort, strict liability, or otherwise, even if Sublessor is advised of the possibility of such losses or damages, or if such losses or damages are foreseeable. 23. Bind and Inure. The obligations of this Sublease shall be binding upon and, except as prohibited by Section 8 (Assignment) hereof, inure to the benefit of the parties hereto and their respective successors and assigns. 24. Governing Law. The validity, construction, interpretation, and performance of the covenants and conditions contained herein shall be governed by and construed in accordance with the domestic laws of Arizona, excluding, however, such laws as pertain to conflicts of law. 25. Headings. The headings used herein are for convenience only and do not limit or amplify the provisions hereof. 7 26. Estoppel Certificates. Either party hereunder will promptly furnish to the other (the "Requesting Party"), or to anyone whom the Requesting Party designates, a statement, in writing of the status of any matter pertaining to this Sublease, including without limitation, acknowledgment (to the extent to which) each party is in compliance with its obligations under the terms of this Sublease. 27. Waiver of Subrogation. Any insurance carried by Sublessee with respect to the Sublet Premises or property therein or thereon shall include a clause or endorsement denying to the insurer rights of subrogation against Sublessor to the extent rights have been waived by Sublessee prior to occurrence of injury or loss. Sublessee, notwithstanding any provisions of this Sublease to the contrary, hereby waives any rights of recovery against Sublessor for injury or loss due to assets covered by such insurance. 28. Holdover. If, after the expiration of or earlier termination of this Sublease, Sublessee shall remain in possession of the Sublet Premises in such a manner as to create a holdover situation under the Lease, then Sublessee shall indemnify and hold Sublessor harmless from and against any and all actions, claims, demands, liabilities, loss, expenses, and damages incurred by Sublessor under the Lease or otherwise arising from or related to Sublessee's failure to surrender possession of the Sublet Premises. 29. Authority. Sublessee represents and agrees that it has good right and lawful authority to execute this Sublease and that the same does not require joinder or approval of any other person, firm, or corporation. 30. Sublease Not Binding Unless Executed. The submission of this document for examination and negotiation does not constitute an offer to sublease, reservation of, or option for the Sublet Premises. This document shall become effective and binding only upon the execution and delivery hereof by both Sublessor and Sublessee and the approval of Landlord. 31. Sublease. Time of the Essence. Time is of the essence of each and every provision of this 32. Force Majeure. In no event shall Sublessor be liable for the failure to perform any obligation under this Sublease in the event that Sublessor is prevented from so performing by strike, lockout, breakdown, accident, order or regulation of or by any governmental authority, or failure of supply, or inability by the exercise of reasonable diligence to obtain supplies, parts, or employees necessary to furnish such services, or because of war or other emergency, or for any similar or dissimilar cause beyond Sublessor's reasonable control ("Force Majeure"), or for any cause due to any act or neglect of Sublessee or its servants, agents, employees, licensees, or any person claiming by, through or under Sublessee. 33. Attorneys' Fees. If either party hereto commences an action against the other to enforce any obligation hereunder, upon the conclusion of such action, the prevailing party will be entitled to recover from the nonprevailing party the prevailing party's costs for such action including, but not limited to, reasonable attorneys' fees and court costs. 8 34. Mechanics' and Materialmens' Liens. Sublessee shall not permit any mechanics' or materialmens' liens to be filed against the Sublet Premises. In the event any such lien is filed, Sublessee shall cause it to be discharged within fifteen (15) days and, upon Sublessee's failure to do so, Sublessor shall have the right to discharge such lien and to be reimbursed by Sublessee for the cost thereof, which reimbursement shall be required by Sublessee upon Sublessor's demand. Further, Sublessee shall hold and save Sublessor harmless and indemnify Sublessor of and from any and all loss, cost, damage, injury, or expense, including attorneys' fees, arising out of or in any way related to such liens. 35. Entire Agreement. This Sublease contains the entire agreement between the parties, and no rights are created in favor of either party other than as specified or expressly contemplated in this Sublease, and the Lease, to the extent such is incorporated herein. In addition, no agreement shall be effective to change or modify this Sublease in whole or in part unless such is in writing and duly signed by the party against whom enforcement of such change or modification is sought. 36. Inconsistency. In the event of any inconsistency between the terms of the Lease incorporated herein by reference and any of the other terms, conditions, or provisions of this Sublease, such inconsistency, (a) if it relates to obligations of or restrictions on Sublessee, will be resolved in favor of that obligation which is more onerous to Sublessee or that restriction which is more restrictive of Sublessee, as the case may be; or if it relates to the rights of or benefits to be conferred on Sublessee, will be resolved in favor of the Lease. (b) IN WITNESS WHEREOF, the parties have hereto executed this Sublease on the date above written. SUBLESSOR: _______________________ BY: ____________________ TITLE: _________________ SUBLESSEE: _______________________ BY: ____________________ TITLE: _________________ 9