Exhibit 10.25
SUBLEASE
Between
HYATT CORPORATION,
as Sublandlord
and
CC-DEVELOPMENT GROUP,
INC.,
as Subtenant
71 South Wacker Drive
Chicago, Illinois
TABLE OF CONTENTS
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Page
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1.
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Definitions
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1
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1.1.
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Additional Rent
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1
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1.2.
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Commencement Date
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2
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1.3.
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Net Rent
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2
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1.4.
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Sublease Term
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2
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1.5.
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Subtenant’s Share
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2
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2.
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Sublease of Subleased Premises
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2
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2.1.
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Initial Term
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2
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2.2.
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Renewal Option
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2
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3.
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Delivery of the Subleased Premises
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3
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4.
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Rent Payments
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3
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4.1.
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Commencement of Net Rent
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3
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4.2.
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Additional Rent
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3
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4.3.
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Audit
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3
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4.4.
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Amounts Due Subsequent to
Termination
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4
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4.5.
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Rent Payments to Master Landlord
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4
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5.
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Condition of the Subleased Premises
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4
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5.1.
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Construction of Improvements
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4
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5.2.
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As-Is Condition
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4
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6.
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Master Lease - Rights and Obligations of
Subtenant
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5
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6.1.
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Rights and Obligations
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5
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6.2.
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Indemnification by Subtenant
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5
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6.3.
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Direct Arrangements with Master
Landlord
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5
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6.4.
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Master Lease Superior
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5
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7.
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Master Lease - Obligations of
Sublandlord
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5
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7.1.
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Enforcement of Master Landlord
Obligations
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5
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7.2.
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No liability of Sublandlord
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6
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7.3.
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Abatements of Rent
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7
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7.4.
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Indemnification by Sublandlord
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7
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7.5.
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No Amendments
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7
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8.
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Use of Subleased Premises
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7
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9.
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Additions and Alterations
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7
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10.
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Shared Facilities
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8
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10.1.
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Costs and Expenses - Construction
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8
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10.2.
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Cafeteria
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8
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10.3.
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Fitness Center
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8
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11.
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Parking
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8
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12.
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Insurance
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8
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12.1.
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Required Insurance
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8
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12.2.
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Waivers of Claims
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8
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13.
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Damage or Destruction
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9
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14.
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Condemnation
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9
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15.
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Indemnification Generally
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9
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16.
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Representations and Warranties of
Sublandlord
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10
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17.
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Other Subtenants
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10
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18.
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Expansion and Rights of First Offer
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10
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19.
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Inapplicable Provisions of Master
Lease
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11
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20.
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Shared Floor and Facilities
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11
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21.
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Covenant of Quiet Enjoyment
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11
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22.
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Brokers
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11
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23.
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Notices
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11
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24.
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Non-Waiver of Default
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12
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25.
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Memorandum of Sublease
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12
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26.
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No Interpretation Against Drafter
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12
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27.
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Execution and Counterparts
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12
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28.
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Partial Invalidity
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13
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29.
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Attorneys’ Fees
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13
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30.
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Further Assurances
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13
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31.
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Execution of Sublease; No Option or
Offer
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13
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32.
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Entire Agreement
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13
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33.
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Subordination
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13
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ii
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EXHIBIT A
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MASTER
LEASE
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EXHIBIT
B
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FLOOR PLANS OF
THE SUBLEASED PREMISES
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EXHIBIT
C
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CONFIRMATION
AGREEMENT
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EXHIBIT
D
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MASTER LANDLORD
RECOGNITION AGREEMENT
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EXHIBIT
E
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NET RENT
SCHEDULE
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iii
INDEX OF DEFINED TERMS
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Additional Rent
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1
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Building
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1
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Commencement Date
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2
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Common Facilities
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11
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Confirmation Agreement
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2
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Fit-Out Work Contractor
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4
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Master Landlord
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1
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Master Landlord Recognition
Agreement
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2
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Master Lease
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1
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Net Rent
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2
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Other Subtenants
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4
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Rent
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4
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Sublandlord
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1
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Sublease
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1
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Sublease Term
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2
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Subleased Premises
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1
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Subtenant
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1
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Subtenant’s Share
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2
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Tenant Improvements Construction
Contract
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4
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Termination Date
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2
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i
SUBLEASE
This SUBLEASE (this
“Sublease”) is made as of the 15th day of June, 2004,
by and between HYATT CORPORATION, a Delaware corporation
(“Sublandlord”), and CC-DEVELOPMENT GROUP, INC., a
Delaware corporation (“Subtenant”), with reference to
the following:
RECITALS:
A. FrankMon LLC, a Delaware limited
liability company (the “Master Landlord”), as lessor,
and Sublandlord, as lessee, heretofore entered into that certain
Amended and Restated Office Lease dated as of June 15, 2004
(as the same may be amended or modified, from time to time, the
“Master Lease”), pursuant to which Master Landlord
leased to Sublandlord, and Sublandlord leased from Master Landlord,
certain premises to be located in an office building, the address
of which will be 71 South Wacker Drive, Chicago, Illinois (the
“Building”). A copy of the Master Lease is attached
hereto as Exhibit “A” . All capitalized terms
not otherwise defined herein shall have the same meanings as are
ascribed to such terms in the Master Lease.
B. Sublandlord desires to sublet to
Subtenant, and Subtenant desires to sublet from Sublandlord, a
portion of the Master Premises located on the entire 9th floor and
a portion of the 10th floor of the Building and consisting of
approximately 31,184 square feet of Rentable Area on the 9th floor
and approximately 13,926 square feet of Rentable Area on the 10th
floor (the “Subleased Premises”), such Subleased
Premises being more particularly depicted on Exhibit
“B” attached hereto.
AGREEMENT
NOW, THEREFORE, with reference to
the foregoing recitals, each of which are deemed to be a part of
this Sublease, and in consideration of the mutual covenants and
agreements contained in this Sublease, Sublandlord and Subtenant
hereby agree as follows:
1. Definitions . For purposes
of this Sublease, the following terms shall have the following
meanings:
1.1. Additional Rent .
“Additional Rent” means (i) Subtenant’s
Share of any and all sums classified as Additional Rent under
Article 3 of the Master Lease, including, but not limited to,
Taxes, Operating Expenses, Net Shared Facilities Costs, Rent
attributable to the Fitness Center, Cafeteria and Circulation Area
payable pursuant to Paragraph 3(G) of the Master Lease, and any
other sums deemed to be Additional Rent under the Master Lease that
are paid by Sublandlord based upon the “Tenant’s Pro
Rata Share,” the “Tenant’s SFR Share” or
the “Tenant’s SFC Share” of Sublandlord, in each
instance as such share is determined from time to time under the
Master Lease, and (ii) any other sums deemed to be Additional
Rent under the Master Lease which are payable by Sublandlord at any
time pursuant to the Master Lease to the extent related to the
Subleased Premises and Subtenant’s occupancy thereof, from
the Commencement Date through the Termination Date. Any
underpayments or overpayments by Subtenant of Additional Rent, as
the case may be, shall be adjusted, remitted or refunded, as
provided in Paragraphs 3(C) and 3(F) of the Master Lease, and such
obligations shall survive the termination of this Sublease.
Additional Rent, however, shall not include any sums payable to
Landlord under the Master Lease as a result of the activities,
operations,
or any act or omission of
Sublandlord or any other subtenant of the Premises including, but
not limited to, additional services requested by Sublandlord or any
such other subtenant, or sums payable as a result of any breach by
Sublandlord or any such other subtenant of the terms and provisions
of the Master Lease, any sublease or any other document or
instrument.
1.2. Commencement Date . The
term “Commencement Date” means the Mid-Rise Rent
Commencement Date. Following the Commencement Date, Sublandlord and
Subtenant shall execute an agreement confirming the Commencement
Date and any other information reasonably requested by Sublandlord
or Subtenant pertinent to this Sublease in substantially the form
attached to this Sublease as Exhibit “C” (the
“Confirmation Agreement”).
1.3. Net Rent . The term
“Net Rent” means the base net rent due for the
Subleased Premises during the Sublease Term in the amounts set
forth on Exhibit “E” attached
hereto:
1.4. Sublease Term . The term
“Sublease Term” means the term commencing on the
Commencement Date and ending on the Initial Term Expiration Date
(the “Termination Date”), subject to extension pursuant
to Section 2.2 below.
1.5. Subtenant’s Share
. The “Subtenant’s Share” means a fraction, the
numerator of which is the number of square feet of Rentable Area of
the Subleased Premises and the denominator of which is the number
of square feet of Rentable Area of the Master Premises.
Subtenant’s Share on the Commencement Date shall be set forth
in the Confirmation Agreement or at such time as the Rentable Areas
of the Subtenant Premises and the Premises are determined pursuant
to Paragraph 1(C) of the Master Lease. Subtenant’s Share is
subject to adjustment pursuant to the formula set forth above if
and to the extent the square footage of the Rentable Area of the
Subleased Premises and/or the Master Premises is adjusted from time
to time pursuant to the Master Lease.
2. Sublease of Subleased
Premises .
2.1. Initial Term .
Sublandlord hereby subleases to Subtenant and Subtenant hereby
Subleases from Sublandlord the Subleased Premises for the Sublease
Term on the terms and subject to the conditions set forth in this
Sublease. The validity and enforceability of this Sublease is
contingent upon and subject to Master Landlord’s execution
and delivery of the instrument substantially in the form attached
hereto as Exhibit “D” (the “Master
Landlord Recognition Agreement”). Sublandlord shall pay any
review expenses charged by Master Landlord in connection with its
review and approval of this Sublease and Subtenant.
2.2. Renewal Option .
Subtenant, at any time on or prior to the 30th day preceding the
last day on which Sublandlord may exercise a Renewal Option
pursuant to Article 35 of the Master Lease, may elect to cause
Sublandlord to exercise the applicable Renewal Option with respect
to the Subleased Premises, whereupon Sublandlord shall so exercise
such Renewal Option. The Sublease Term thereafter shall be extended
for the length of the First Renewal Term or the Second Renewal
Term, as applicable, and Subtenant shall pay Net Rent for the
applicable Renewal Term in the amount determined by Master Landlord
and Sublandlord pursuant to Article 35 of the Master Lease.
Subtenant shall be entitled to participate with Sublandlord in
the
2
negotiation and determination of the
Fair Market Rental Value for the Renewal Premises, but the final
negotiation and determination of such Fair Market Rental Value
shall be made by Master Landlord and Sublandlord pursuant to the
provisions of the Master Lease. If and to the extent Master
Landlord, pursuant to the Master Landlord Recognition Agreement,
shall have committed to enter into a direct lease with Subtenant
upon and subject to the terms and conditions of the Master Lease,
as modified by this Sublease, for the Renewal Term(s), Sublandlord
and Subtenant shall cooperate to effect a direct lease between
Master Landlord and Subtenant for the Subleased Premises only upon
the terms and conditions of the Master Lease as modified
hereby.
3. Delivery of the Subleased
Premises . Sublandlord shall deliver exclusive possession of
the Subleased Premises in broom clean condition to Subtenant on or
prior to the Commencement Date.
4. Rent Payments .
4.1. Commencement of Net Rent
. Subtenant’s obligations to make payments of Net Rent shall
commence on the Commencement Date. Subtenant shall pay the Net
Rent, without prior notice or demand, to Sublandlord at the address
set forth in Paragraph 23 below, or at such other address as
Sublandlord may from time to time designate in writing, by a check
for currency which, at the time of payment, is legal tender for
private or public debts in the United States of America, on the
Commencement Date and thereafter in advance on or before the first
day of each and every calendar month of the Sublease Term, without
any abatement, deduction or set-off whatsoever, except as expressly
provided for in this Sublease. Any payments due under this
Paragraph 4.1 shall be prorated for any partial calendar month
occurring during the Sublease Term.
4.2. Additional Rent . In
addition to Net Rent payable by Subtenant with respect to the
Subleased Premises, commencing on the Commencement Date, Subtenant
shall pay to Sublandlord, as Additional Rent, Subtenant’s
Share of all amounts of Additional Rent payable by Sublandlord to
Master Landlord pursuant to the Master Lease, which are allocable
to the Sublease Term. If the amount of Additional Rent payable by
Sublandlord for the Subleased Premises is separately identifiable
on the statements from Master Landlord, then Subtenant shall pay
such amount. Payments for the first and last years of the Sublease
Term shall be equitably prorated. During the Sublease Term,
Sublandlord shall provide to Subtenant copies of all statements,
estimates, reconciliations and audits of Taxes and Operating
Expenses received from Master Landlord pursuant to the Master
Lease. Sublandlord shall provide to Subtenant, with each statement
relating to the payment and adjustment of Additional Rent, the
basis for the calculation thereof in sufficient detail for
Subtenant to confirm, as between Sublandlord and Subtenant, the
amount owed without the necessity of obtaining further data from
Master Landlord or Sublandlord. Net Rent and Additional Rent shall
be together referred to herein as “Rent.”
4.3. Audit . Sublandlord, if
Subtenant so requests, shall exercise its right to audit and review
Master Landlord’s books and records pertaining to any
calculation of Additional Rent subject to and in accordance with
Sublandlord’s rights applicable thereto set forth in
Paragraph 3(F) of the Master Lease. Sublandlord shall appoint the
accountant to be used for Tenant’s review,
3
and Sublandlord and Subtenant shall
cooperate with each other to effect an efficient conduct of
Tenant’s review. Subtenant shall bear the cost incurred to
conduct such review, except that if such review results in a
finding of an overpayment by Sublandlord and Subtenant of
Additional Rent, Sublandlord and Subtenant, together with any of
the other subtenants of the Master Premises that request Subtenant
to perform such a review, shall share ratably the cost associated
with the conduct of such review. Sublandlord shall cooperate with
Subtenant in order to permit Subtenant to conduct such review,
including, but not limited to, making such requests and inquiries
of Master Landlord as Subtenant deems necessary to the extent same
are permitted pursuant to such Paragraph 3(F) of the Master
Lease.
4.4. Amounts Due Subsequent to
Termination . If at any time subsequent to the Termination Date
or the date of the earlier termination of this Sublease, any other
amounts are due under this Sublease with regard to any ongoing
liability under this Sublease the party so owing such amount, shall
remit such amount within ten (10) Business Days after the
demanding party’s demand by written notice.
4.5. Rent Payments to Master
Landlord . If and to the extent Sublandlord so directs,
Subtenant shall make its monthly payments of Net Rent and
Additional Rent directly to Master Landlord in the manner and to
the location provided in the Master Lease.
5. Condition of the Subleased
Premises .
5.1. Construction of
Improvements . Subtenant acknowledges and agrees that certain
improvements to the Subleased Premises are being constructed by or
on behalf of Sublandlord pursuant to a certain construction
contract (the “Tenant Improvements Construction
Contract”) by and between Pritzker Realty Group, L.P. and
Power Construction Company (the “Fit-Out Work
Contractor”), pursuant to which Pritzker Realty Group, L.P.,
on behalf of Sublandlord, Subtenant, and other subtenants of
Sublandlord, is constructing or causing to be constructed and
completed certain improvements throughout the Master Premises, for
the use by Subtenant with respect to the Subleased Premises only,
and certain other subtenants of Sublandlord (the “Other
Subtenants”) with respect to their respective subleased
premises. Sublandlord and Subtenant further acknowledge and agree
that each of Subtenant and the Other Subtenants shall bear a
portion of the costs to construct the improvements in the Master
Premises, to the extent such costs exceed the Fit-Out Allowance,
and that the allocation of such excess costs shall be determined
and paid pursuant to separate agreements.
5.2. As-Is Condition .
Subtenant shall accept possession of the Subleased Premises on the
Commencement Date in their as-is condition. Sublandlord and
Subtenant, however, following the Commencement Date, shall jointly
prepare a list of the Fit-Out Work still to be completed by the
Fit-Out Work Contractor, and Sublandlord, through its consultant,
Pritzker Realty Group, L.P., shall use commercially reasonable
efforts to cause the Fit-Out Work Contractor to complete such
remaining Fit-Out Work as soon as practicable following the
Commencement Date.
4
6. Master Lease - Rights and
Obligations of Subtenant .
6.1. Rights and Obligations .
Except to the extent expressly excluded or limited elsewhere in
this Sublease or in the Master Lease, from and after the
Commencement Date, Subtenant shall enjoy all of the rights and
benefits and shall perform all of the obligations of Sublandlord as
the “Tenant” under the Master Lease as if the Subtenant
were the “Tenant” under the Master Lease with regard to
the Subleased Premises.
6.2. Indemnification by
Subtenant . Subtenant shall not take any action or do or
perform any act or fail to perform any act which would result in
the failure or breach of any of the covenants, agreements, terms,
provisions or conditions of the Master Lease on the part of the
Tenant thereunder. Subtenant hereby agrees to indemnify and hold
Sublandlord harmless from and against any and all claims, losses
and damages, including, without limitation, reasonable
attorneys’ fees and disbursements, which may at any time be
asserted against Sublandlord by (a) Master Landlord for
failure of Subtenant to perform any of the covenants, agreements,
terms, provisions or conditions contained in the Master Lease which
by reason of the provisions of this Sublease, Subtenant is
obligated to perform, or (b) any person by reason of
Subtenant’s use and/or occupancy of the Subleased Premises.
In each and every instance in which Subtenant fails to perform its
obligations and/or comply with all of the terms and provisions to
be performed by Subtenant with regard to the Subleased Premises as
the “Tenant” under the Master Lease, Sublandlord may,
but shall not be obligated to, with regard to the Subleased
Premises, take such actions against Subtenant as Master Landlord
may take or have under the Master Lease. As between Sublandlord and
Subtenant, in the event of any conflict between any of the terms
and conditions of the Master Lease and this Sublease, this Sublease
shall prevail and control.
6.3. Direct Arrangements with
Master Landlord . Subtenant may make direct arrangements with
Master Landlord regarding additional hours of air conditioning and
other services to the Subleased Premises, and Subtenant shall pay
any and all costs with regard to such services. Sublandlord further
grants to Subtenant the right to deal directly with Master Landlord
with respect to the rights of Sublandlord under the Master Lease
with respect solely to the Subleased Premises, the conduct or
manner of conduct of Subtenant’s or Master Landlord’s
activities in the Subleased Premises, or work to be performed or
services to be rendered by Master Landlord relating to the
Subleased Premises or the parking rights of Subtenant hereunder, it
being the intent of the parties hereto that Subtenant may exercise
such rights as are reasonably necessary to permit Subtenant the
use, occupancy and enjoyment of the Subleased Premises on a daily
basis.
6.4. Master Lease Superior .
This Sublease shall be and remain at all times subject and
subordinate to the terms of the Master Lease.
7. Master Lease - Obligations of
Sublandlord .
7.1. Enforcement of Master
Landlord Obligations . Subtenant recognizes and acknowledges
that Sublandlord is not the owner of and does not operate the
property of which the Subleased Premises are a part, and,
therefore, is not in a position to carry out and perform the
obligations of Master Landlord under the Master Lease. Sublandlord,
however, shall take such actions as are reasonably necessary to
enforce Sublandlord’s rights under the Master Lease and to
use its commercially reasonable and good faith efforts to cause
Master Landlord to perform its obligations thereunder.
5
Sublandlord shall deliver to
Subtenant within five (5) business days of Sublandlord’s
receipt any and all notices, statements and materials related to
the Master Lease which are received by Sublandlord from Master
Landlord and shall deliver to Subtenant concurrently with its
delivery to Master Landlord any and all notices, statements and
materials related to the Master Lease which are delivered by
Sublandlord to Master Landlord, in each instance, if and to the
extent same relate in any way to the Subleased Premises or this
Sublease or Subtenant’s use and occupancy of the Subleased
Premises.
If Subtenant shall give Sublandlord
a written notice claiming that Master Landlord is not performing,
fulfilling or observing Master Landlord’s covenants,
agreements and obligations contained in the Master Lease, setting
forth with reasonable specification and detail the nature of such
non-performance, and requesting Sublandlord to seek performance by
Master Landlord, if and to the extent such non-performance relates
in any way to the Subleased Premises or this Sublease, Sublandlord
will, with reasonable promptness but with no out-of-pocket expense
of Sublandlord, request Master Landlord to so perform, fulfill or
observe, and upon any failure to do so, Subtenant may, in the name
of Sublandlord or Subtenant or both, but at the expense of
Subtenant, seek by appropriate action to cause such performance or
observance by Master Landlord and Subtenant shall indemnify
Sublandlord from and against any and all claims, demands, causes of
action, judgments, costs, expenses, and all losses and damages
arising or resulting therefrom.
7.2. No Liability of
Sublandlord . Notwithstanding anything to the contrary
contained in this Sublease, Subtenant acknowledges and agrees that,
except for Sublandlord’s failure to perform
Sublandlord’s obligations as “Tenant” under the
Master Lease, which failure by Sublandlord causes an act or failure
to act by Master Landlord having a direct adverse affect on
Subtenant’s occupancy of the Subleased Premises:
(a) Sublandlord shall not be liable or responsible for any
breach or default by Master Landlord of any of the covenants or
obligations of Master Landlord under the Master Lease, including,
without limitation any indemnification obligations of Master
Landlord; and (b) no breach, default, or failure by Master
Landlord shall constitute a default by Sublandlord under this
Sublease. Except to the extent herein provided, including without
limitation, Subtenant’s right to the quiet enjoyment of the
Subleased Premises, Sublandlord’s failure or refusal to
comply with any such provisions of the Master Lease shall not
excuse Subtenant from performing its obligations under this
Sublease, including paying the Net Rent and Additional Rent and all
other charges provided for herein without any abatement, deduction
or setoff whatsoever.
This Sublease and the obligations of
Subtenant to pay Rent hereunder and perform all of the other
covenants, agreement, terms, provisions and conditions hereunder on
the part of Subtenant to be performed shall in no way be affected,
impaired or excused because Master Landlord (with regard to the
Master Lease) or Sublandlord (with regard to this Sublease) is
unable to fulfill any of their obligations under the Master Lease
or this Sublease, respectively, or is unable to supply or is
delayed in supplying any service, express or implied, to be
supplied, or is unable to make or is delayed in supplying any
equipment or fixtures, in any such instance if Master Landlord or
Sublandlord, as the case may be, is prevented or delayed from so
doing
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by reason of any cause whatsoever
beyond, respectively, Master Landlord’s or
Sublandlord’s reasonable control, including, but not limited
to, acts of God, strikes, labor troubles, governmental preemption
in connection with a national emergency or by reason of any rule,
order or regulation of any department or subdivision thereof of any
governmental agency or by reason of the conditions of supply and
demand which have been or are affected by war, hostilities or other
similar emergency.
7.3. Abatements of Rent . If
Sublandlord receives an abatement of rent under the Master Lease as
a result of a failure of Master Landlord to provide services,
repairs, restorations, equipment or access to the Subleased
Premises, then Subtenant shall be entitled to an abatement of Rent
hereunder on a ratable basis based upon the portion of the
abatement which is allocable to the Subleased Premises and on the
number of rentable square feet in the Subleased Premises and in the
Premises.
7.4. Indemnification by
Sublandlord . Sublandlord shall not take any action or do or
perform any act or fail to perform any act which would result in
the failure or breach of any of the covenants, agreements, terms,
provisions or conditions of the Master Lease on the part of the
Tenant thereunder. Sublandlord hereby agrees to indemnify and hold
Subtenant harmless from and against any and all claims, losses, and
damages, including but limited to, reasonable attorney’s fees
and disbursements, which may at any time be asserted against
Subtenant arising out of such failure or breach.
7.5. No Amendments .
Sublandlord shall not amend, modify or voluntarily terminate the
Master Lease without obtaining the prior written consent thereto
from Subtenant if, in the case of any such amendment or
modification, Subtenant, its interest in the Subleased Premises, or
the Subleased Premises will be affected. Any such amendment,
modification or termination effected without Subtenant’s
prior written consent shall not relieve Sublandlord of its
obligations to Subtenant under this Sublease. Subtenant’s
consent shall not be unreasonably withheld or delayed.
8. Use of Subleased Premises
. The Subleased Premises will be used pursuant to Article 5 of the
Master Lease.
9. Additions and Alterations
. Subtenant shall not make any Alterations to the Subleased
Premises except in accordance with Article 8 of the Master Lease.
For purposes of conforming to Article 8 of the Master Lease,
Subtenant shall be deemed the “Tenant” thereunder and
Subtenant shall obtain the prior written consent of Master Landlord
to any such Alterations which require Master Landlord’s
consent under the Master Lease. Subtenant also shall obtain the
prior written consent of Sublandlord, which consent shall not be
unreasonably withheld, conditioned or delayed, for any Alterations
which will materially modify the architectural configuration or
layout of the Subleased Premises. Subtenant, in connection with any
proposed Alterations which require the consent of Sublandlord,
shall reimburse Sublandlord for any and all reasonable
out-of-pocket costs and expenses incurred by Sublandlord in
connection with its review and approval of said proposed
Alterations.
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10. Shared Facilities
.
10.1. Costs and Expenses -
Construction . Subtenant shall pay Subtenant’s Share of
the “Tenant’s SF Contribution” required to be
paid by Sublandlord, if any, for the cost to construct the Shared
Facilities within 30 days following its receipt of written request
therefor.
10.2. Cafeteria . Subtenant
shall be permitted to use the Cafeteria in the same manner and to
the same extent as Sublandlord at all times during which Subtenant
is a Subtenant Permittee.
10.3. Fitness Center . The
Subtenant shall be allotted Subtenant’s Share of
Sublandlord’s available memberships to the Fitness Center at
all times during which Subtenant is a Subtenant
Permittee.
11. Parking . Subtenant shall
have the right, but not the obligation, during the Sublease Term,
to sublease at the rates from time to time charged to Sublandlord
for said parking spaces, up to one (1) of the parking spaces
Master Landlord is obligated to make available to Sublandlord.
Subtenant, to the extent permitted by Master Landlord, shall
contract directly with Master Landlord, utilizing the Terms of
Parking License attached to the Master Lease as Exhibit P-2. If and
to the extent at any time Sublandlord and its other subtenants are
not utilizing all of the parking spaces Master Landlord is
obligated to make available to Sublandlord, Sublandlord, upon
receipt of written request from Subtenant, shall deliver written
notice to Master Landlord pursuant to which Sublandlord shall
advise Master Landlord that Sublandlord desires to increase the
number of parking spaces it uses, all in accordance with the
request received from Subtenant. Subtenant shall be responsible for
any and all costs associated with the transfer of the rights to the
parking spaces to Subtenant, including, without limitation, costs,
if any, regarding entry cards and parking stickers.
12. Insurance .
12.1. Required Insurance .
Article 10 of the Master Lease is hereby incorporated into this
Sublease as if set forth in full herein, except, however, that
thereunder (i) Subtenant shall be deemed the
“Tenant,” (ii) obligations of Master Landlord with
regard to insurance policies required to be maintained by Master
Landlord shall not be borne by Sublandlord and Sublandlord shall
have no obligations to Subtenant with regard thereto; and
(iii) the liability insurance policies carried by Subtenant
shall name both Sublandlord and Master Landlord as additional
insureds and shall also contain a provision that the insurance
afforded by such policy shall be primary insurance and any that
insurance carried by Sublandlord or Master Landlord shall be excess
over and non-contributing with Subtenant’s
insurance.
12.2. Waivers of Claims .
Sublandlord and Subtenant each hereby waive any and every claim for
recovery from the other for any and all loss of or damage to their
respective property, which loss or damage is covered by valid and
collectible physical damage insurance policies, to the extent that
such loss or damage is recoverable under said insurance policies.
Inasmuch as this mutual waiver will preclude the assignment of any
such claim by subrogation or otherwise to an insurance company or
any other person, Sublandlord and Subtenant each agree to give to
each insurance company which has issued, or in the future may
issue, policies of physical damage insurance, written notice of the
terms of this mutual waiver, and to have said insurance policies
properly endorsed, if necessary, to prevent the invalidation of
said insurance coverage by reason of said waiver.
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13. Damage or Destruction .
If all or a portion of the Subleased Premises is destroyed or
damaged as described in Article 10 of the Master Lease:
(i) Sublandlord shall have no obligation or liability to
Subtenant in connection with any such damage or destruction,
(ii) this Sublease shall continue only to the extent the
Master Lease remains in effect pursuant to Article 10 of the Master
Lease (and Sublandlord shall provide Subtenant with any notices by
Master Landlord in connection therewith), (iii) Subtenant
shall be entitled to an abatement of Rent to the extent that the
Subleased Premises shall have been rendered Untenantable until
substantially repaired, but only to the extent that
Sublandlord’s rent under the Master Lease has been abated (on
the same percentage basis that Sublandlord’s rent is abated),
and (iv) Subtenant shall have the same rights to terminate
this Sublease as Sublandlord has to terminate the Master Lease, as
provided in the Master Lease. Sublandlord shall use commercially
reasonable efforts to enforce Sublandlord’s rights under
Article 10 of the Master Lease. If the destruction or damage
relates solely to the Subleased Premises, then Subtenant shall have
the right to approve any settlement of Sublandlord’s rights
under the Master Lease relating to such casualty, which approval
shall not be unreasonably withheld or delayed. In all other cases,
Subtenant shall be entitled to participate with Sublandlord in the
enforcement of Sublandlord’s rights under Article 10 of the
Master Lease, provided that the final settlement in any such case
shall be made by Sublandlord.
14. Condemnation . If all or
a portion of the Subleased Premises is taken as described in
Article 12 of the Master Lease: (a) if the Master Lease is
terminated, this Sublease shall terminate concurrently therewith
and Sublandlord shall have no liability to Subtenant as a result
thereof; (b) Subtenant shall have no right to receive or
direct the application of any condemnation award, except for any
separate award obtained by Subtenant solely for business
interruption, moving expenses, or Subtenant’s personal
property; and (c) Subtenant shall have the same rights to
terminate this Sublease as Sublandlord has to terminate the Master
Lease, as provided in the Master Lease. Sublandlord shall use
reasonable efforts to enforce Sublandlord’s rights under
Article 12 of the Master Lease in the event of any condemnation or
similar taking. Subtenant shall be entitled to participate with the
Sublandlord in the enforcement of Sublandlord’s rights under
Article 12 of the Master Lease, provided that the final settlement
in any such case shall be made by Sublandlord. Subtenant shall be
entitled to a ratable portion of any abatement of rent and a
ratable portion of any “bonus value” of the leasehold
estate evidenced by the Master Lease in the event Sublandlord is
entitled to such abatement or bonus value as described in said
Article 12.
15. Indemnification Generally
. To the extent Tenant is obligated to indemnify, defend and/or
hold harmless Landlord under the Master Lease, with respect to
Subtenant’s occupancy of the Subleased Premises,
(i) Subtenant shall be deemed the “Tenant”; and
(ii) “Landlord” shall be deemed to mean both
Master Landlord and Sublandlord with regard to any and all rights
and benefits of “Landlord” or any obligations of
Subtenant to “Landlord”. Subtenant, however, at no
event shall be obligated to indemnify, defend and/or hold harmless
Sublandlord, either pursuant to this Paragraph 15 or any other
provision of this Sublease, against any claims, losses or damages
which are based upon or result from any act or omission of
Sublandlord. This provision shall survive the termination of this
Sublease.
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16. Representations and
Warranties of Sublandlord . Sublandlord represents and warrants
to Subtenant that the following are true and correct as of the date
hereof: (i) the Master Lease is unmodified and in full force
and effect, and Sublandlord’s leasehold estate thereunder has
not been assigned, mortgaged, pledged or encumbered, and the
Subleased Premises have not been sublet by Sublandlord to any other
party; (ii) the Master Lease evidences the entire agreement
with respect to the Master Premises between Sublandlord and Master
Landlord; (iii) Sublandlord has received no written notice
from Landlord of a default by Sublandlord under the Master Lease
which remains uncured; (iv) Landlord is not in default in the
performance and/or observance of any material covenant, agreement
or condition of the Master Lease on Landlord’s part to be
performed or observed; and (v) Subtenant is a Subtenant
Permittee pursuant to Article 7 of the Master Lease and is
entitled, pursuant thereto, to the use and equipment of the Shared
Facilities subject to and in accordance with said Article 7 and
Paragraph 10 of this Sublease. Th