Exhibit 10.1
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT (“Sublease”) is entered into this 26th day of January, 2017, by and between Ingredion Incorporated, a Delaware corporation (“Sublandlord”) and Viveve Medical, Inc., a Delaware corporation (“Subtenant”).
RECITALS
A. Sublandlord is the tenant of the premises commonly known and described as 345 Inverness Drive South, Building B, Suite 200, Englewood, Colorado 80112 (the “Premises”), pursuant to a Lease of Space dated March 5, 2014, by and between Hines REIT 345 Inverness Drive, LLC, a Delaware limited liability company as landlord and Penford Corporation, a Washington corporation, as tenant, as such Lease of Space was assumed by Sublandlord pursuant to an Assumption of Lease With Landlord Consent dated December 3, 2015 (collectively, the “Master Lease”). A complete copy of the Master Lease is attached hereto as Exhibit A. Capitalized terms used herein which are not defined herein shall have the meanings ascribed to them in the Master Lease.
B. The current owner of the Premises is Inverness LL, LLC, a Delaware limited liability company (“Master Landlord”).
C. Subtenant wishes to sublease a portion of the Premises from Sublandlord, and Sublandlord is willing to sublease said portion of the Premises to Subtenant upon the terms and conditions contained herein.
COVENANTS AND AGREEMENTS
In consideration of the premises contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
1. Sublease of Premises. Sublandlord hereby subleases to Subtenant, and Subtenant subleases from Sublandlord, a portion of the Premises, consisting of 12,342 rentable square feet as generally depicted on Exhibit B attached hereto and incorporated herein (the “Subleased Premises”); provided, however, such calculation is subject to remeasurement following completion of the Subtenant Improvements.
2. Term. The term of the Sublease shall commence upon the earlier to occur of: (a) one hundred twenty (120) days after Sublandlord delivers possession of the Subleased Premises to Subtenant; or (b) upon substantial completion of the Subtenant Improvements (the “Commencement Date”) and shall expire on that date that is thirty-six (36) months from the Commencement Date (the “Expiration Date”), unless sooner terminated as hereinafter provided or by operation of law (the “Term”). Notwithstanding anything contained herein to the contrary, if the Commencement Date occurs on a day other than the first day of a month, the Term shall be measured from the first day of the month following the month in which the Commencement Date occurs and the Expiration Date shall be extended by the number of days between the Commencement Date and the first day of the month following the Commencement Date. Subtenant shall execute a confirmation of the Commencement Date, Expiration Date and other matters in such form as Sublandlord may reasonably request within ten (10) days after requested (but nothing herein shall require Sublandlord to so request); any failure to respond within such time shall be deemed an acceptance of the matters as set forth in Sublandlord’s confirmation.
3. Rent. Subtenant shall pay Sublandlord gross rent for the full Term of the Sublease in monthly installments as follows:
|
Period |
Annual Rate Per Square Foot |
Monthly Gross Rent |
|
Commencement Date – Lease Year 1 |
$20.50 |
$21,084.25 |
|
Lease Year 2 |
$21.12 |
$21,721.92 |
|
Lease Year 3 |
$21.75 |
$22,369.88 |
The Rent during the Term shall be paid on the first day of each month at Sublandlord’s office at the following location: Ingredion Incorporated, 12981 Collections Center Drive, Chicago, Illinois 60693 or at such other location as Sublandlord shall designate in a written notice to Subtenant. If the Term commences on a day other than the first day of a calendar month or ends on a day other than the last day of a calendar month, the Rent and any other amounts payable on a monthly basis shall be prorated on a per diem basis for such partial calendar months. “Lease Year” shall be a period of twelve (12) consecutive full calendar months commencing on the same date as the Commencement Date if the Commencement Date shall occur on the first day of a calendar month; if not, then the Lease Year shall commence upon the first day of the calendar month next following the Commencement Date. There shall be no pass through of Basic Rent or Additional Rent as set forth in the Master Lease.
Notwithstanding other remedies contained herein, if any payment of Rent is made more than five (5) business days from when due and Subtenant has received written notice from Sublandlord, a late payment charge of five percent (5%) of the past due amount shall immediately become due and payable in addition to the amount otherwise owed.
4. Security Deposit. Upon execution of this Sublease, Subtenant shall deposit a security deposit in the amount of $21,717.00 with Sublandlord. If Subtenant is in default, Sublandlord can use the security deposit or any portion of it to cure the default or to compensate Sublandlord for any damages sustained by Sublandlord resulting from Subtenant’s default. Upon demand, Subtenant shall immediately pay to Sublandlord a sum equal to the portion of the security deposit expended or applied by Sublandlord to restore the security deposit to its full amount. In no event will Subtenant have the right to apply any part of the security deposit to any Rent or other sums due under this Sublease or the Master Lease. If Subtenant is not in default at the expiration or termination of this Sublease, Sublandlord shall return the security deposit to Subtenant within forty-five (45) days after the expiration of the Sublease. Sublandlord’s obligations with respect to the deposit are those of a debtor and not of a trustee, and Sublandlord can commingle the security deposit with Sublandlord’s general funds. Sublandlord shall not be required to pay Subtenant interest on the deposit. Sublandlord shall be entitled to immediately endorse and cash Subtenant’s prepaid deposit; however, such endorsement and cashing shall not constitute Sublandlord’s acceptance of this Sublease. In the event Master Landlord or Sublandlord does not accept this Sublease, Sublandlord shall return said prepaid deposit.
5. Parking. Subtenant shall be entitled, subject to all provisions contained in Section 14.18 of the Master Lease, to 74 unassigned parking spaces (based upon 6.0 unassigned parking spaces per 1,000 square feet of Floor Area).
6. Subtenant Improvements.
a. Improvement Allowance. Sublandlord shall make an allowance of $88,030.00 (“Improvement Allowance”) available to Subtenant for the purpose of performing improvements to the Subleased Premises (“Subtenant Improvements”). The Improvement Allowance may be used for all reasonable hard and soft costs associated with the design, engineering, permitting and construction of the Subleased Premises. Any Improvement Allowance not utilized as provided above within six (6) months after the date of mutual execution of the Sublease shall be forfeited by Subtenant.
b. Payment of Improvement Allowance.
i. The Improvement Allowance shall be funded to Subtenant within thirty (30) days following completion of the Subtenant Improvements and Sublandlord’s receipt of Subtenant’s written draw request accompanied by the following documents: (a) final lien waivers from Subtenant’s general contractor and all subcontractors whose work is the subject of such draw request (subject only to the receipt of payment therefor), or unconditional final lien waivers from such contractors with respect to any work the non-payment for which will give rise to a statutory mechanic’s lien under applicable law, or if the waivers are conditioned on payment of the amount so waived, proof reasonable to Sublandlord that the proper amount has been received by the waiving party; (b) application for payment and sworn statement of Subtenant’s general contractor substantially in the form of AIA Document G702, or in the case of any work not performed by or under the general contractor, such other documentation (including, without limitation, copies of invoices, contracts and reasonable evidence of payment, including cancelled checks) reasonably substantiating the charges of the applicable vendors, contractors or design service providers; and (c) a certificate of occupancy (or its equivalent) from the City of Englewood, Colorado for the Tenant Improvements. If the Improvement Allowance is not received within sixty (60) days of receiving the above outlined information, a late payment charge of five percent (5%) shall immediately become due and payable in addition to the Improvement Allowance owed. The Improvement Allowance owed and late payment charge may be applied to monthly Rent due under this Sublease.
ii. If the total cost of the Subtenant Improvements exceeds the Improvement Allowance, then Subtenant shall pay all such excess costs and Subtenant agrees to keep the Subleased Premises, the Building and the Land free from any liens arising out of the non-payment of such costs. Except as otherwise expressly provided herein, all costs of the Subtenant Improvements in excess of the Improvement Allowance including changes requested by Subtenant and approved by Sublandlord to the extent such changes increase the cost of the Subtenant Improvements in excess of the Improvement Allowance (collectively, “Cost Overruns”) shall be paid by Subtenant directly to Subtenant’s contractors as and when the same are due. If there are any Cost Overruns, then, with Subtenant’s request for payment of the Improvement Allowance by Sublandlord, Subtenant shall provide Sublandlord with reasonable proof of payment to Subtenant’s contractors (e.g., copies of invoices and cancelled checks, but not invoices marked “paid” or “paid invoices”) of the Cost Overruns.
c. Construction Process. Subject to new Building standards and Sublandlord’s and Master Landlord’s reasonable approval, Subtenant shall control its own construction and contractor selection with respect to the non-core areas on the floor. Except as expressly provided to the contrary herein, Subtenant’s construction of the Subtenant Improvements shall be subject to all applicable provisions of the Sublease and Master Lease regarding alterations or improvements to the Subleased Premises, including without limitation the provisions contained in Section 8.12 of the Master Lease. Subtenant shall submit Subtenant’s plans and specifications for the construction of the Subleased Premises to both Sublandlord and Master Landlord for approval. Sublandlord shall approve Subtenant’s plans and specifications for the construction of the Subleased Premises, or provide written comments thereto, within five (5) business days of receipt for improvements that are nonstructural in nature, and within fifteen (15) days for improvements that involve structural work. Sublandlord acknowledges that Subtenant has retained Kris Belter of Intergroup Architects contracted through A&B Builders Inc. as Subtenant’s architect (“Subtenant’s Architect”) for preparation of construction drawings.
d. As-Builts. Within sixty (60) days after completion of the Subtenant Improvements, Subtenant will provide to Sublandlord a copy of the CADD file containing the as-builts of the Subtenant Improvements, including Mechanical/Electrical/Plumbing (MEP) CADD files.
e. Insurance. Subtenant’s general contractor shall carry the following insurance coverage: (i) commercial liability insurance (occurrence based) insuring against any liability occurring in or about the Subleased Premises, including protection against death, personal injury and property damage, with a single limit of not less than of Two Million Dollars and No/100 ($2,000,000.00); (ii) builder’s risk insurance covering the replacement value of the Subtenant Improvements; and (iii) worker’s compensation insurance to the applicable statutory limit, if any. Such insurance shall expressly insure Subtenant, Sublandlord and Master Landlord all as additional insured and shall contain an endorsement requiring at least thirty (30) days prior written notice of cancellation to Sublandlord before cancellation or change in coverage, scope or amount of any policy. Prior to commencement of the Subtenant Improvements, Subtenant shall provide Sublandlord with certificate(s) of insurance evidencing all required insurance coverage.
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7. |
Option to Extend. |
a. Subtenant shall have an option to extend the Term of this Sublease (“Option to Extend”) for two (2) additional periods of one (1) Lease Year (“Extension Period”) on the same terms and conditions in effect under this Sublease immediately prior to the Extension Period, except that Subtenant shall have no further right to extend and the monthly Rent shall be adjusted to $22.40/SF for the first Extension Period and $23.07/SF for the second Extension Period. The Option to Extend may be exercised only by giving Sublandlord irrevocable and unconditional written notice thereof no later than six (6) months prior to the commencement of the Extension Period. Said exercise shall, at Sublandlord’s election, be null and void if Subtenant is in an uncured default position under the Sublease at the date of said notice or any time thereafter and prior to commencement of the Extension Period. The term “Lease Year” herein means each 12 month annual period, commencing with the first day of the Extension Period, without regard to calendar years.
b. If Subtenant shall fail to exercise its Option to Extend, said option shall terminate, and shall be null and void and of no further force and effect. Subtenant’s exercise of said option shall not operate to cure any default by Subtenant of any of the terms or provisions in the Sublease, nor to extinguish or impair any rights or remedies of Sublandlord arising by virtue of such default. If the Sublease or Subtenant’s right to possession of the Subleased Premises shall terminate in any manner whatsoever before Subtenant shall exercise its Option to Extend, or if Subtenant shall have subleased or assigned all or any portion of the Subleased Premises, then immediately upon such termination, sublease or assignment, the Option to Extend shall simultaneously terminate and become null and void. Such option is personal to Subtenant. Under no circumstances whatsoever shall the assignee under a complete or partial assignment of the Sublease, or a subtenant under a sublease of the Subleased Premises, have any right to exercise the Option to Extend granted herein. Time is of the essence of this provision.
8. Right of First Offer. So long as there is no default by Subtenant under this Sublease (beyond any applicable cure period) either at the time that Sublandlord is obligated to give notice according to this Section 8 or on the date on which Sublandlord would otherwise deliver possession of the First Offer Space (as that term is defined in this Section), Subtenant will have a right of first offer (the “Right of First Offer”) to sublease any other space within the Premises (the “First Offer Space”), if Sublandlord decides to sublease the First Offer Space. The Right of First Offer will be exercised in accordance with, and subject to, the following terms and conditions:
a. Sublandlord shall notify Subtenant in writing if it decides to sublease the First Offer Space. Sublandlord’s notice will include: (i) the specific location of the First Offer Space and the rentable area comprising the First Offer Space; (ii) the approximate date on which the First Offer Space will become available for occupancy by Subtenant; and (iii) the improvements, if any, as Sublandlord is willing to make to the First Offer Space.
b. Within five (5) business days after Subtenant’s receipt of Sublandlord’s notice, Subtenant will exercise the Right of First Offer, or lose it irretrievably. If Subtenant exercises the Right of First Offer, then the subleasing of the First Offer Space will be on the same terms and conditions as the Sublease except:
i. Subtenant’s obligation to pay Rent for the First Offer Space will commence on the date such space is made available to Subtenant, but not sooner than the date specified in Sublandlord’s notice unless Subtenant occupies the First Offer Space prior to such date, and will continue through the expiration or earlier termination of the term of the Sublease.
ii. Sublandlord will deliver and Subtenant will accept the First Offer Space in its then existing condition, on an “as is” basis. Subtenant will not be entitled to receive any contribution or allowance from Sublandlord for improvement of the First Offer Space, except as provided in Section 8(a)(iv).
c. Subtenant cannot assign its Right of First Offer to any sublessee of the Subleased Premises, or to any assignee of the Sublease, or to any other person; however, if the Subtenant has exercised the Right of First Offer and has subleased a First Offer space, then Subtenant’s right to sublease the First Offer Space, or to assign its rights under the Sublease to the First Offer Space, will be subject to Section 13. Any Right of First Offer, which has not both been exercised by Subtenant and under which Subtenant has subleased the First Offer Space, will expire upon any assignment of the Sublease or sublease of the Subleased Premises.
d. Upon inclusion of the First Offer Space, all references in the Sublease to the “Subleased Premises” shall be deemed to include the First Offer Space.
9. Holding Over. In the event that Subtenant fails to vacate the Subleased Premises upon the expiration or termination of the Sublease, Subtenant will be deemed to be a month-to-month subtenant on all of the terms and conditions hereof, except for the term, and except that the Rent payable shall be 150% of the Rent payable during the final month of the Term. Additionally, Subtenant shall indemnify and hold Sublandlord harmless from all liability to Master Landlord due to Subtenant’s failure to timely vacate the Subleased Premises, including without limitation costs and attorneys’ fees.
10. Use of the Subleased Premises. The Subleased Premises shall be used solely for general office and warehouse use and in compliance with all terms and conditions binding upon Sublandlord under the Master Lease, as well as in compliance with all zoning, environmental, and other laws, rules, regulations, statutes, ordinances, orders, and other requirements which are or may become applicable to the Subleased Premises and to Subtenant’s business. Subtenant shall keep no Hazardous Substances on the Subleased Premises, and shall operate no machines or conduct other activities which may create undue noise or dust, or a hazard or dangerous condition to the Subleased Premises, other tenants of the Building, or their invitees. Subtenant is responsible for keeping the Subleased Premises in neat and clean condition
11. Signs. No signs shall be placed by Subtenant anywhere on or about the Subleased Premises or the Building without the express written consent and approval of such sign(s) and the placement thereof by Sublandlord and Master Landlord, which consent shall not be unreasonably withheld or delayed.
12. Insurance. Subtenant shall at all times keep in effect all insurance required by and in accordance with Article VI of the Master Lease, and shall name Sublandlord, as well as Master Landlord, as additional insureds or loss payees, as applicable. Sublandlord and Subtenant shall each cause their respective insurers to waive any right of subrogation against the other and against the Master Landlord for losses which are covered by insurance. Subtenant shall be bound by Article VI of the Master Lease, and in addition, the provisions of Article VI shall be deemed to be incorporated into this Sublease, with “Sublandlord” substituted for “Landlord” and Subtenant’ substituted for “Tenant” in the wording thereof.
13. Assignment and Subletting. Subtenant may neither assign this Sublease nor further sublet the Subleased Premises without the express written permission of Sublandlord and the Master Landlord, which consent may be withheld in either party’s sole and absolute discretion.
14. Warranty of Possession and Quiet Enjoyment. Sublandlord warrants that it has the right and authority to enter into this Sublease, subject to Master Landlord’s written consent, and that Subtenant, upon paying the Rent and observing all of Subtenant’s other covenants and agreements in this Sublease, shall have quiet and peaceable possession of the Subleased Premises during the Term of this Sublease and in the Master Lease. Notwithstanding the foregoing, Sublandlord shall not be responsible for acts or omissions of any other tenants, Master Landlord or other third parties who may interfere with Subtenant’s possession of the Subleased Premises.
15. Repairs. Subtenant shall be responsible, at its own cost and expense, to repair any damage to the Subleased Premises or Building caused by any act or omission of Subtenant or Subtenant’s employees, contractors, invitees, agents, visitors, or any other persons in or about the Subleased Premises by reason of the express or implied invitation or permission of Subtenant. Should Subtenant fail promptly to effect any such repairs, Sublandlord may make such repairs and charge the cost of such repairs to Subtenant, who shall pay such charge within five (5) business days of receipt of demand.
16. Alterations and Improvements, Liens. Subsequent to the completion of the Subtenant Improvements, Subtenant shall make no improvements to the Subleased Premises without the express written permission of the Sublandlord and Master Landlord which Sublandlord consent shall not be unreasonably denied, conditioned or delayed. If consent is granted, Subtenant shall allow no lien to be placed on the Building or the Subleased Premises or Sublandlord’s interest therein arising out of the construction of such improvements, and shall hold harmless and indemnify Sublandlord and the Master Landlord from all costs and expenses relating to such improvements or liens. Promptly upon demand by Sublandlord or the Master Landlord, Subtenant shall cause any such liens to be removed, by means of posting an appropriate bond, if necessary. At Sublandlord’s option, all improvements shall become a part of the Subleased Premises, or Sublandlord may require Subtenant to remove such improvements at the expiration or termination of the Term, and to restore the Subleased Premises to its condition upon execution of the Sublease, at Subtenant’s expense. Subtenant shall permit Sublandlord and/or Master Landlord to place and maintain notices of non-liability on the Subleased Premises during the period that any improvements or alterations are being made by or for Subtenant.
17. Default and Remedies
a. Default by Subtenant. Subtenant shall be in default hereunder in the event Subtenant: fails to timely pay any installment of Rent due hereunder and such failure continues for three (3) days after Subtenant’s receipt of notice that such payment is past due; fails to comply with any other term, condition, covenant or agreement contained herein and such failure continues thirty (30) days after Subtenant’s receipt or notice of such failure (provided, if the nature of Subtenant’s default is such that more time is reasonably required in order to cure, Subtenant shall not be in default if Subtenant commences to cure promptly within such period and thereafter diligently pursues its completion); abandons the Subleased Premises; becomes subject to the jurisdiction of a Bankruptcy court or control of court-appointed receiver; makes an assignment for the benefit of creditors; violates any provision of the Master Lease; or does or permits any act to be done which results in a lien against the Building, the Subleased Premises or any portion thereof or interest therein, and fails to remove the same within ten (10) days of receipt of notice of such lien.
b. Remedies of Sublandlord. Upon Subtenant’s default beyond any applicable notice and cure period, Sublandlord shall have any one or more of the remedies provided herein, or any other remedy permitted by law. Sublandlord may re-enter the Subleased Premises and take possession thereof and remove Subtenant and any other person on the Subleased Premises, with or without terminating the Sublease, and after readying the Subleased Premises at Subtenant’s expense, may re-sublet it. If the Sublease is not terminated, Subtenant shall be responsible for any deficiency between the Rent reserved under the Sublease and the net proceeds of re-subletting after deducting all reasonable expenses incident thereto, such as painting, re-carpeting, cleaning, and otherwise restoring the Subleased Premises to a condition appropriate to make it ready for re-subletting, advertising, broker fees, legal fees, and other reasonable expenses of re-subletting, and Subtenant shall continue to be liable for any other amounts owed to Sublandlord under the Sublease. If the Sublease is terminated, Subtenant shall be liable for damages measured by the Rent reserved under the Sublease for the balance of the Term, less the net proceeds of re-subletting reasonably to be expected by Sublandlord, both reduced to present value.
c. Default by Sublandlord and Remedies of Subtenant. Subtenant shall notify Sublandlord of any claimed default by Sublandlord in writing, and Sublandlord, should it agree that a default exists, shall cure said default within thirty (30) days, or if the default cannot reasonably be cured within thirty (30) days, shall commence action to cure within said thirty (30) days, and pursue completion thereof with reasonable speed. Under no circumstances shall Subtenant have the right to withhold or deduct any amounts from Rent or other amounts due to Sublandlord hereunder, or to terminate the Sublease, Subtenant’s sole remedy for default by Sublandlord being an action for damages. Notwithstanding the foregoing, if the Master Landlord shall notify the Subtenant in writing, with a copy to Sublandlord, that Sublandlord is in default under the Master Lease by reason of non-payment of Rent, Subtenant may thereafter pay its Rent directly to Master Landlord for the account of Sublandlord, provided that (a) Sublandlord is copied with the transmittal memo and check used in payment of the same; and (b) payment is made within the time required by this Sublease.
18. Surrender of Subleased Premises. Upon expiration or earlier termination of this Sublease, Subtenant shall timely vacate the Subleased Premises, leaving the same clean and in as good condition as it was at the date of execution of the Sublease, ordinary wear and tear and permitted alterations excepted. Notwithstanding the foregoing, if required by Sublandlord or Master Landlord, Subtenant shall remove any improvements or any trade fixtures attached to the Subleased Premises by Subtenant, repairing any damage caused by the removal.
19. Right to Inspect Subleased Premises. Sublandlord and Master Landlord shall have the right to inspect the Subleased Premises at all times in accordance with Section 8.20 of the Master Lease.
20. Condition of Subleased Premises. Subtenant accepts the Subleased Premises in its “as is” “where is” condition, and acknowledges that it is acceptable for Subtenant’s use and occupation without any agreements, representations, understandings or obligations on the part of Sublandlord to perform any alterations, repairs or improvements.
21. Indemnity. Subtenant shall indemnify, defend (using legal counsel reasonably acceptable to Sublandlord or Master Landlord, as applicable) and save Sublandlord and Master Landlord harmless from all claims, suits, losses, damages, fines, penalties, liabilities and expenses (including Sublandlord’s and Master Landlord’s personnel and overhead costs and reasonable attorneys’ fees and other costs incurred in connection with claims, regardless of whether such claims involve litigation) resulting from any actual or alleged injury (including death) of any person or from any actual or alleged loss of or damage to any property arising out of or in connection with (a) Subtenant’s occupation, use or improvement of the Subleased Premises, or that of its employees, agents or contractors; (b) Subtenant’s breach of its obligations under this Sublease or the Master Lease; or (c) any act or omission of Subtenant or any subtenant, licensee, assignee or concessionaire of Subtenant, or of any officer, agent, employee, guest or invitee of Subtenant, or of any such entity in or about the Subleased Premises. This indemnity with respect to acts or omissions during the Term of this Sublease shall survive termination or expiration of this Sublease. Subtenant shall promptly notify Sublandlord and Master Landlord of casualties or accidents occurring in or about the Subleased Premises. The foregoing provisions shall not be construed to make Subtenant responsible for loss, damage, liability or expense resulting from the gross negligence or intentional misconduct of Sublandlord, or its officers, contractors, licensees, agents, employees, or invitees, or of Master Landlord or its officers, contractors, licensees, agents, employees, invitees or other tenant of the Building.
22. Sublandlord’s Obligations.
a. Sublandlord represents and warrants to Subtenant that (i) a true, correct and complete copy of the Master Lease is attached hereto as Exhibit A and that the Master Lease is in full force and effect; (ii) Sublandlord has received no notice of default under the Master Lease that remains uncured and to the knowledge of Sublandlord, no event has occurred which with the passage of time or giving of notice, or both, would result in a default under the Master Lease; and (iii) as of the date hereof, Sublandlord has received no written notice of any violation of law with respect to the Subleased Premises which remains uncured.
b. Sublandlord covenants and agrees not to act or suffer or permit anything to be done which could result in a default under the Master Lease or cause the Master Lease or the rights of Sublandlord as tenant thereunder to be terminated, cancelled or forfeited. Sublandlord further covenants and agrees that it will not terminate, modify or amend the Master Lease during the Term of the Sublease. Sublandlord further covenants and agrees to pay Master Landlord all Rent and other charges that may become due and payable by Sublandlord pursuant to the Master Lease, as and when such amounts become due and payable thereunder.
c. Sublandlord agrees, at no expense of Sublandlord, to reasonably cooperate with Subtenant in obtaining the consent of the Master Landlord where any such consent is required by this Sublease or the Master Lease, and will act reasonably with respect to any consent requested by Subtenant in connection with this Sublease. Without limiting the generality of the foregoing, if Subtenant shall submit to Sublandlord a request for Master Landlord’s consent or approval with respect to any given matter required by this Sublease or the Master Lease, then Sublandlord shall promptly forward such request onto Master Landlord for its consent or approval.
d. Sublandlord agrees that it shall indemnify and hold harmless Subtenant from and against any and all liability claims, suits, demands, damages, judgments, costs, interests and expenses (including reasonable attorneys’ fees) which Subtenant shall suffer or incur (i) in connection with a default by Sublandlord under the Master Lease (other than if such default is caused by a default by Subtenant under this Sublease); or (ii) by reason of any claim for any injury to or death of any person or damage to property arising out of, pertaining to, or resulting from the negligent acts or omissions of Sublandlord, its agents or employees arising from the use or occupancy of the Subleased Premises and occurring prior to the Sublease Commencement Date; provided, however, that Sublandlord’s indemnification obligations shall be limited to Subtenant’s actual damages, only, and shall not apply to consequential, incidental, punitive, or exemplary damages claimed to have been incurred by Subtenant.
23. Miscellaneous Provisions.
a. Waiver. No waiver or forbearance by a party of a breach of this Sublease shall act as a waiver of the party’s rights upon any subsequent or different breach by the other party.
b. Force Majeure. Neither party shall be required to perform any obligation or covenant of this Sublease during the time that the performance is prevented by war, strike, terrorism, natural disaster or other force majeure.
c. Sublease binding. This Sublease shall be binding on the parties hereto, their successors and assigns, subject to other restrictions contained herein, including without limitation, restrictions on assignment and subletting.
d. Authority of signatories. By their signatures hereon, the persons signing this Sublease warrant that they are fully authorized to bind the party for whom they sign, and that said party has the legal capacity to contract. Notwithstanding the foregoing, this Sublease shall not be effective unless Master Landlord has consented to it in writing.
e. Entire agreement; amendment. This Sublease contains the entire agreement between the parties, and any prior discussions, representations or agreements are merged herein. No amendment shall be valid or binding unless it is written and signed by both parties.
f. Sublease Subordinate to Master Lease. Subtenant acknowledges that the Sublandlord’s rights and interests in the Subleased Premises derive solely from the Master Lease. Unless the Master Landlord should otherwise agree, should Sublandlord for any reason whatsoever, voluntarily or involuntarily, no longer have the right to occupy the Subleased Premises, this Sublease shall terminate and the parties shall have no further rights against one another, except for rights which arose prior to the date of termination of Sublandlord’s rights in the Subleased Premises. Subtenant specifically acknowledges the potential termination of the Master Lease in the event of damage or destruction of the Building under Article IX of the Master Lease, in the event of the exercise of eminent domain rights under Article X of the Master Lease, and in the event of Sublandlord’s default under Article XI of the Master Lease. Subtenant agrees to abide by all terms of the Master Lease and any rules and regulations of Master Landlord promulgated thereunder. Subtenant acknowledges that it has no rights under the Master Lease except those specifically set forth herein. Except as specifically excluded or modified by this Sublease, the terms, covenants and conditions of the Master Lease are incorporated herein by reference so that each and every such term, covenant and condition of the Master Lease binding on or inuring to the benefit of Landlord thereunder shall in respect of this Sublease, bind or inure to the benefit of Sublandlord and each and every such term, covenant and condition of the Master Lease binding or incurring to the benefit of the Tenant thereunder shall, in respect of this Sublease, bind or inure to the benefit of Subtenant. In the event of a conflict between the terms and conditions of the Master Lease and the terms and conditions of this Sublease, then the terms and conditions of this Sublease shall control.
g. Subtenant Honors Master Lease. Subtenant agrees to honor the terms of the Master Lease insofar as applicable to Subtenant’s conduct, and to do nothing (or omit to do anything) which would cause Sublandlord to be in default of the Master Lease. Subtenant further agrees to forward to Sublandlord promptly upon receipt any and all notices or correspondence received by Subtenant from any third parties concerning the Master Lease, this Sublease, or the Subleased Premises.
h. Subordination, Estoppels. Subtenant agrees that this Sublease is subordinate to the Master Lease and to any deeds of trust or mortgages which may now or hereafter be recorded against the Subleased Premises. Subtenant shall attorn in the same manner as Sublandlord under Section 8.15 of the Master Lease. Upon request by the Sublandlord, Subtenant agrees promptly (and in no event later than five (5) business days after receipt of request) to execute an estoppel certificate stating that the Sublease is in force and effect, and all relevant facts about its status, including such matters as the Security Deposit, the date to which Rent has been paid, and any claimed defaults of Sublandlord, which may be relied upon by any potential assignee or lender for the Subleased Premises or Sublandlord. Subtenant shall also provide estoppel certificates to Master Landlord in compliance with Section 8.19 of the Master Lease.
i. Notices. Any written notice to a party shall be deemed effective (i) upon hand delivery, (ii) three days after deposit in the United States Mail, prepaid certified mail, return receipt requested or (iii) the next business day after deposit with a nationally recognized overnight carrier, addressed as set forth below or to such other address as Sublandlord or Subtenant may designate to each other from time to time by written notice:
If to Sublandlord: Ingredion Incorporated
Attn: Eric Chutorash
345 Inverness Drive South
Building B, Suite 200
Englewood, CO 80122
With a copy to: Ingredion Incorporated
Attn: General Counsel
5 Westbrook Corporate Center
Westchester, IL 60154
If to Subtenant: Viveve Medical, Inc.
Attn: Dave Black
150 Commercial Street
Sunnyvale, CA 94086-5201
With a copy to: Viveve Medical, Inc.
Attn: Jim Atkinson
150 Commercial Street
Sunnyvale, CA 94086-5201
j. Severability. The provisions of this Sublease shall be deemed to be severable, and if any provision hereof is held to be invalid or unenforceable, the remainder of the Sublease shall be enforced to the full extent possible without said provision.
k. No Recordation. Neither this Sublease nor a memorandum thereof shall be recorded, and recordation shall be a default.
l. Brokers. Subtenant represents and warrants to Sublandlord that Subtenant was not represented by any broker or agent with respect to this Sublease except Colliers International (“Subtenant’s Broker”). Sublandlord represents and warrants to Subtenant that Sublandlord was not represented by any broker or agent with respect to this Sublease other than Newmark Grubb Knight Frank (“Sublandlord’s Broker”). Subtenant and Sublandlord each agree to indemnify and hold harmless the other party against any loss, expense, cost or liability incurred by such party as a result of any claims by brokers other than Subtenant’s Broker and Sublandlord’s Broker.
m. OFAC. Sublandlord and Subtenant each represents and warrants that: (i) it is not acting, directly or indirectly, for or on behalf of any person, group, entity, or nation named by any Executive Order, the United States Department of Justice, or the United States Treasury department as a terrorist, “Specially Designated National or Blocked Person,” or other banned or blocked person. entity, nation, or transaction (“SDN”) pursuant to any law, order, rule or regulation that is enforced or administered by the Office of Foreign Assets Control (“OFAC”); (ii) it is not engaged in this transaction, directly or indirectly on behalf of, any such person, group, entity or nation; and (iii) it is not in violation of Presidential Executive order 13224, the USA Patriot Act, the Bank Secrecy Act, the Money Laundering Control Act or an regulations promulgated pursuant thereto.
n. Master Landlord Consent. Notwithstanding anything to the contrary herein, the parties agree that this Sublease shall not be effective unless and until the written consent of Master Landlord is obtained. Sublandlord agrees to use commercially reasonable efforts to obtain Master Landlord’s consent within forty-five (45) days of mutual execution of this Sublease. If not received within forty-five (45) days Subtenant has the right but not the obligation to terminate the Sublease at no cost or expense. Sublandlord agrees to provide access within three (3) days of receipt of Master Landlord consent.
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THIS SUBLEASE AGREEMENT is executed as of the date first set forth above:
SUBLANDLORD:
INGREDION INCORPORATED,
a Delaware corporation
By: /s/ Rob Ritchie
Name: Rob Ritchie
Title: V.P. Food & Beverage
SUBTENANT:
VIVEVE MEDICAL, INC.,
a Delaware corporation
By: /s/ James G. Atkinson
Name: James G. Atkinson
Title: President/Chief Business Officer
EXHIBIT A
Master Lease
(See attached)
EXHIBIT B
Subleased Premises
