VIEWS: 431 PAGES: 17 CATEGORY: Real Estate POSTED ON: 1/15/2011
This is an agreement made between a sublandlord and a subtenant whereby the subtenant agrees to sublease certain premises subject to certain conditions and covenants. This long-form template agreement, as drafted, provides that a head lease and operations agreement already exist between the head landlord and tenant. This form contains both standard clauses and opportunities for the use of optional terms and conditions making it fully customizable to fit the needs of the contracting parties. This document is useful to landlords or commercial tenants seeking to form a sublease agreement.
This is an agreement made between a sublandlord and a subtenant whereby the subtenant agrees to sublease certain premises subject to certain conditions and covenants. This long-form template agreement, as drafted, provides that a head lease and operations agreement already exist between the head landlord and tenant. This form contains both standard clauses and opportunities for the use of optional terms and conditions making it fully customizable to fit the needs of the contracting parties. This document is useful to landlords or commercial tenants seeking to form a sublease agreement. AGREEMENT TO SUBLEASE/SUBLET THIS SUBLEASE MADE the ______ day of _______________, 2_________ BETWEEN: ____________________________________ a corporation incorporated under the laws of the State of _____________ (the “Sublandlord”) AND _____________________________________ a corporation incorporated under the laws of the State of _____________ (the “Subtenant”) 1. WHEREAS by a lease dated the _____ day of ______________, 2____, between _____________________ as Landlord (the “Head Landlord”) and the Sublandlord as Tenant, a copy of which is attached hereto as “Schedule A” (the “Head Lease”). The Head Landlord did lease to the Sublandlord the land and buildings (the “Premises”) known municipally as ___________________________; 2. WHEREAS the Sublandlord has agreed to sublease to the Subtenant a portion of the Premises municipally known as ____________________ including access to Common Areas as shown on the sketch attached as Schedule “C” hereto (the “Subpremises”) on the terms and conditions contained herein; 3. AND WHEREAS the consent of the Head Landlord has been obtained pursuant to the terms of the Head Lease. NOW THEREFORE in consideration of the mutual covenants and agreements herein contained, and of other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), the parties hereby agree and covenant as follows: ARTICLE I- INTERPRETATION 1.1 DEFINITIONS In this Agreement, the following terms shall have the meanings set out below unless the context requires otherwise: “Sublease” means this Sublease and any amendment, recital, instrument, exhibit or schedule supplemental or ancillary to this Sublease, and the expressions, “hereof”, “hereto”, “hereunder”, ”hereby” and similar expressions refer to this agreement and not to any particular Section or other portion of this Sublease. “Applicable Law” means, with respect to any Person, property, transaction, event or other matter, any law, rule, statute, regulation, order, judgment, decree, treaty or other requirement having the force of law in relation or applicable. “Business Day” means any day, other than Saturday, Sunday or any statutory holiday in the State of ______________. “Common Areas” means the various entrances and corridors within the _______________. “Confidential Information” of a Party means all information (and all documents and other tangible items which record information, whether on paper, in computer readable format or otherwise) relating to a Party, the Head Lease or Sublease which, at the time concerned is of a confidential nature, and is learned by the other Party as a result of the relationship under this Agreement, but not including any information or documents or other tangible items which at the time concerned: (i) have become generally available to the public other than as a result of disclosure by a Party or any of its officers, employees or agents (its “Representatives”); or (ii) were available to a Party or its Representatives on a non-confidential basis prior to the date of this Agreement. “Parties” means both parties to this Sublease so long as they remain parties to this Sublease. “Party” means anyone of the Parties to this Sublease. “Person” or “person” includes an individual, a corporation, a joint venture, a partnership, a trust or trustee, an unincorporated organization, the government of a country or any agency of any such government and words importing persons have a similar meaning. ARTICLE II 2.1 COMPLIANCE WITH OPERATIONS AGREEMENT The Parties agree to comply with the provisions of the Operations Agreement entered into by the Parties and dated the _____ day of _____________, 2______, attached as Schedule “B” which outlines the terms and conditions for use of the _______________________ including access to the Common Areas located in an adjacent to the _________________, proportionate sharing of various operational matters and costs, on the terms and conditions set out therein and as amended from time to time (“Operations Agreement”). 2.2 SUBLEASE The Sublandlord hereby demises and subleases the Subpremises to the Subtenant, to have and to hold the Subpremises (unless sooner terminated pursuant to other provisions hereof), for the period of _____________ (___) months/years, from and including the _____ day of ___________, 2______ to and including the ____ day of __________, 2_____ (the “Term”). ARTICLE III 3.1 NEGOTIATION OF FUTURE TERMS In the event that the Parties agree to enter into a new lease at the end of the Term, the Parties shall negotiate the new lease or a renewal of the lease in good faith both acting reasonably having regard for the circumstances. ARTICLE IV 4.1 BASIC RENT The Subtenant covenant and agrees to pay during the Term, to the Sublandlord, a monthly rent of _______________ ($__________) Dollars payable on the _____ day of each and every month (“Basic Rent”). If the Term ends on any day other than the last day of a month, Basic Rent and additional rent (the “Additional Rent’), if any, for such fraction of a month shall be adjusted on a per diem basis, based upon a period of 365 days. ARTICLE V 5.1 ADDITIONAL RENT AND OTHER CHARGES The Subtenant agrees to pay to the Sublandlord all amounts in respect of the Subpremises the Subtenant’s proportionate share of operating costs, all as set out in the Operations Agreement. The Subtenant covenants and agrees with the Sublandlord to pay to the Sublandlord, at the same time as Additional Rent is payable hereunder and all applicable taxes presently or hereafter imposed from time to time upon the Subtenant or in respect of this Sublease and payable on account of the rental of the Subpremises or the Sublandlord’s receipt of the rents and other amounts and charges hereunder. ARTICLE VI 6.1 ACCESS AND PARKING The Subtenant shall have driveway access and parking privileges upon the terms and conditions as set out in Schedule “D” attached hereto. ARTICLE VII 7.1 SUBTENANT’S GENERAL COVENANTS The Subtenant covenants with the Sublandlord: (a) to pay Basic Rent and Additional Rent provided herein, as well as any taxes imposed thereon, as herein provided; (b) to pay directly to the Head Landlord the costs of any special or additional services in respect of the Subpremises; (c) to perform or cause to be performed all of the covenants of the Sublandlord as Tenant under the Head Lease relating to the Subpremises, including, without limitation, the performance of the Tenant’s repairs therein but excluding the obligations of the Sublandlord as to Rent payable as Tenant under the Head Lease (the obligations of the Subtenant in that respect being the payment of Basic Rent and Additional Rents for the Subpremises as provided herein); (d) not to do or omit to be done any act or thing upon the Subpremises which would cause a breach of any of the Sublandord’s obligations as Tenant under the Head Lease; (e) not to use the Subpremises or any purpose other than such uses as permitted in the Head Lease; (f) at its own expense, to repair and maintain and keep the Subpremises and every part thereof and improvements placed therein in good order and condition, and promptly make all needed repairs and replacements in accordance with the terms of the Head Lease and; (g) not to assign, sublet or part with or share possession of any part of the Subpremises or allow the same to be used or occupied by any persons other than the Subtenant without the prior consent in writing of the Sublandlord, which consent may not be unreasonably withheld, and of the Head Landlord in accordance with the provisions of the Head Lease. ARTICLE VIII 8.1 INSURANCE The Subtenant shall take out and keep in force during the Term such insurance policies in respect of the Subpremises as shall comply with the obligations of the Sublandlord as Tenant under the Head Lease, and shall be subject to the same obligations and the same limitations of liability with respect to damage, loss, or injury as set out in the Head Lease. The Subtenant shall name the Sublandlord and the Head Landlord as additional named insureds, as their interest may appear, in such insurance policies. The Subtenant shall provide, upon the request of the Sublandlord, certificates of its insurance policies and shall, throughout the Term, provide evidence of renewal or replacement of same. ARTICLE IX 9.1 COVENANTS OF THE SUBLANDLORD The Sublandlord covenants with the Subtenant: (a) for quite enjoyment; (b) to pay the Rent reserved by the Head Lease; (c) to perform or cause to be performed all of its obligations under the Head Lease in respect of the Premises other than the Subpremises; and (d) to enforce, for the benefit of the Subtenant, and other lawful occupants of the Subpremises, the obligations of the Head Landlord under the Head Lease with the intent that the benefit of such covenants shall be enjoyed by the Subtenant and its permitted subtenants and assigns; and, notwithstanding anything else herein contained, the obligations of the Sublandlord with respect to the covenants and obligations of the Head Landlord are limited to the foregoing. (e) that it shall not assign its rights under the Head Lease without the prior written consent of the Subtenant. ARTICLE X 10.1 ABATEMENT AND TERMINATION In the event of damage of destruction to the Subpremises or the building of which the Subpremises forms a part by any casualty or occurrence: (a) Basic Rent and Additional Rent hereunder shall abate if ant to the extent Rent under the Head Lease abates in respect of the Subpremises under the terms of the Head Lease; (b) This Sublease shall terminate if the Head Landlord or the Sublandlord shall become entitled to terminate and shall terminate the Head Lease; and (c) The Subtenant, if the Subpremises are restored by the Head Landlord in accordance with the provisions of the Head Lease, shall perform all of the obligations of the Sublandlord with respect to the repair and restoration of the Subpremises. ARTICLE XI 11.1 FIXTURES AND IMPROVEMENTS, ETC. (a) The rights and obligations of the Subtenant with respect to the installation, alteration or removal of fixtures and improvements shall be governed by the applicable provisions of the Head Lease, it being agreed that all fixtures and improvements shall be deemed to comply with the provisions of the Sublease if they are made in compliance with the provisions of the Head Lease, and the approval of the Head Landlord and the Sublandlord thereto (such approval not to be unreasonably withheld) shall have been obtained. The Subtenant shall pay all costs and fees chargeable by the Head Landlord under the Head Lease with respect to alterations or changes to the Subpremises. (b) At the end of the Term, the Subtenant shall surrender and yield up the Subpremises in such state as the Sublandlord is required to surrender and yield up the Premises at the end of the term of the Head Lease. Notwithstanding the foregoing, the Subtenant shall not be required to restore the Subpremises to its original condition as to the commencement of the term of the Head Lease nor to remove any leasehold improvements that existed prior to the Term, but shall, at the Sublandlord’s option, at the expiration of the Term or earlier termination of this Sublease, restore the Subpremises to its original condition as at the commencement of the Term and/or remove any leasehold improvements installed by or for the Subtenant, subject to the rights of the Head Landlord under the Head Lease. The Subtenant’s rights to remove fixtures shall be limited to removal of its fixtures and not those of the Sublandlord. ARTICLE XII 12.1 CONDITION OF SUBPREMISES It is understood and agreed that the Subtenant shall accept the Subpremises in an “as is” condition, and the Subtenant acknowledges that the Sublandlord has made no representations or warranties with respect to the condition thereof. ARTICLE XIII 13.1 NOTICE Any notice, certificate, consent, determination or other communication required or permitted to be given or made under this Agreement shall be in writing and shall be effectively given if (i) delivered personally, (ii) sent by prepaid courier service or mail, or (iii) sent prepaid by fax or other similar means of electronic communication, in each case to the following addresses: (a) The Sublandlord at: _________________________ _________________________ Facsimile: ________________ Attention: ________________ (b) The Subtenant at: _________________________ _________________________ Attention: ________________ Facsimile: ________________ Any such communication so given or made shall be deemed to have been given or made and to have been received on the day of delivery if delivered, or on the day of faxing or sending by other means of recorded electronic communication, provided that such day in either event is a business day and the communication is so delivered, faxed or sent prior to 4:30 p.m. on such day. Otherwise such communication shall be deemed to have been given and made and to have been received on the next following Business Day. Any such communication sent by mail shall be deemed to have been given and made to have been received on the fifth (5th) Business Day following the mailing thereof; provided however that no such communication shall be mailed during any actual or apprehended disruption of postal services. Any such communication given or made in any other manner shall be deemed to have been given or made and to have been received only upon actual receipt. The Sublandlord or Subtenant may from time to time, by notice in writing to the other, designate another address in the United States as the address to which notices are to be mailed to it. ARTICLE XIV 14.1 APPLICATION OF HEAD LEASE (a) The Subtenant acknowledges and agrees that this Sublease is subject to and subordinate to its terms of the Head Lease and the Subtenant is subject to all the rights and privileges of the Head Landlord under the Head Lease in the same manner and to the same extent as the Sublandlord, except as provided herein. (b) Except as herein expressly provided, or as modified by the provision of this Sublease, all terms, conditions, covenants and agreements contained in the Head Lease shall apply to and be binding upon the parties hereto, and their respective successors and permitted assigns, the appropriate changes of reference being deemed to have been made (that is, every reference therein to “Landlord” being changed on such incorporation to a reference to the Sublandlord, every reference to “Tenant” being changed on such incorporation to a reference to the Subtenant and every reference to “Premises” being changed on such incorporation to a reference to the Subpremises, where the context requires), with the intent that such provisions shall govern the relationship in respect of such matters as between the Sublandlord and the Subtenant. (c) Capitalized words not otherwise defined herein shall have the meaning ascribed to them in the Head Lease. (d) Whenever, under the terms of the Head Lease, the consent or approval of the Head Landlord is required, the Subtenant shall be required to obtain both the consent or the approval of the Head Landlord and the Sublandlord. ARTICLE XV 15.1 SCHEDULES The following are Schedules attached to and incorporated in this Sublease by reference and are deemed to be an integral party hereof: (a) Schedule A – Head Lease between Head Landlord and Sublandlord; (b) Schedule B – Operations Agreement; (c) Schedule C – Sketch showing location of Sublease Premises, Common Areas and Access and Parking; and (d) Schedule D - Subtenant’s Access and Parking. ARTICLE XVI 16.1 MISCELLANEOUS (a) No right to Renew. The Subtenant acknowledges and agrees that is has no rights or options to renew the Term of the Sublease, and that nothing in this Sublease shall obligate the Sublandlord to exercise any option to renew, option to lease additional space or other discretionary right under the Head Lease. (b) Registration. (i) Neither the Subtenant nor anyone on the Subtenant’s behalf or claiming under the Subtenant (including any Transferee) shall register in full this Sublease or any Transfer against the Lands. The Subtenant may register a notice or caveat of this Sublease provided that a copy of the Sublease is not attached. (ii) Upon the expiration or earlier termination of the Term, the Tenant shall immediately discharge or otherwise vacate any such notice or caveat. (c) Force Majeure. Notwithstanding any other provision contained herein, in the event that either the Sublandlord or the Subtenant should be delayed, hindered or prevented from the performance of any act required hereunder by reason of any unavoidable delay, including strikes, lockouts, unavailability of materials, inclement weather, acts of God or any other cause beyond its reasonable care and control, but not including insolvency or lack of funds, then performance of such act shall be postponed for a period of time equivalent to the time lost by reason of such delay. The provisions of this Section 17.1(c) shall not under any circumstances operate to excuse the Tenant from prompt payment of Rent and/or any other charges payable under this Sublease. (d) Time of Essence. Time shall be of the essence of this Sublease in all respects. (e) Further Assurances. Each Party shall, promptly do, execute, deliver or cause to be done, executed and delivered all further acts, documents and things in connection with this Sublease that the other Parties may require, for the purposes of giving effect to this Sublease. (f) Entire Agreement. The sublease (together with all other agreements or documents executed by the parties contemplated by this Agreement) constitutes the entire sublease among the Parties pertaining to the subject matter of this Sublease and such other agreements and documents and supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written including, without limitation, any confidentiality agreements which may have been entered into among the Parties prior to the date hereof. There are no conditions, warranties, representations or other agreements among the Parties in connection with the subject matter of this Sublease (whether oral or written, express or implied, statutory or otherwise) except as specifically set out in this Sublease or in such other agreements and documents. (g) Further Assurances. The Sublandlord and the Subtenant hereby agree, from time to time and at any time hereafter, to execute such further assurances as may be necessary or desirable to more effectively sublease the interests of the Sublandlord in the Head Lease together with all benefits and advantages to be derived there from and to carry out the true intention of this Sublease. (h) Examination by Subtenant. The submission of this Sublease for examination by the Subtenant, whether or not executed by the Sublandlord, shall not constitute an offer or agreement, and there shall be no obligation on the part of the Sublandlord to the Subtenant hereunder until the Sublease has been fully executed and delivered by both the Sublandlord and the Subtenant. (i) Number, Gender, Effect of Headings. Unless the context otherwise required, words importing the singular in number only shall include the plural and vice versa, words importing the use of general shall include the masculine, feminine and neutral genders, and words importing persons shall include individuals, corporations, governmental bodies and other legal or business entities. The division of this Sublease into Articles and Sections and the insertion of headings are for convenience or reference only, and shall not affect the construction or interpretation of this Sublease. (j) Severability. Any provision of this Agreement which, as it may relate to a Party, is prohibited or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such prohibition or unenforceability and shall be severed from the balance of this Agreement, all without affecting the remaining provisions in this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction. (k) Counterparts. This Sublease may be executed by the parties hereto in separate counterparts, each of which so executed shall be deemed to be an original. Such counterparts together shall constitute one, and the same instrument and, notwithstanding the date of execution, shall be deemed to bear the effective date set forth above. (l) Delivery by Facsimile. Delivery of an executed copy of a signature page to this Sublease by facsimile transmission shall be effective as delivery as of an original executed copy of this Sublease, and each party hereto undertakes to provide each other party with a copy of the Sublease bearing original signatures forthwith upon demand. (m) Successors and Assigns. The rights and liabilities of the parties shall inure to the benefit of their respective legal representatives, heirs, executors, administrators, successors and permitted assigns, as the case may be. (n) Confidentiality. Each party shall (and shall cause each of its officers, employees and agents) to hold in strictest confidence and not use in any manner whatsoever, other than as expressly contemplated by this Agreement, any Confidential Information (as defined herein) of the other Parties or relating to the Sublease. This provision shall not apply to the disclosure of any Confidential Information where such disclosure is required by Applicable Law. (o) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of _____________ applicable in that State. IN WITNESS WHEREOF the parties hereto have executed this Sublease as of the date first appearing above. (SUBTENANT) Per: Name: Title: I have authority to bind the Company. (SUBLANDLORD) Per: Name: Title: I have authority to bind the Company. SCHEDULE “A” Copy of Lease between Head Landlord and Sublandlord SCHEDULE “B” Copy of Operations Agreement SCHEDULE “C” Sketch showing location of Sublease Premises, Common Areas, Access and Parking SCHEDULE “D” Subtenant’s Access and Parking
"Agreement to Sublease/Sublet"