HomeMy WebLinkAboutAgreement A-19-392 with Omninet Properties Manchester Center.pdf2
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calendared for Board Calendar August 6, 2019, and incorporated by this reference. LESSOR is willing
to consent to the Sublease on the terms and conditions contained herein.
D.All defined terms not otherwise expressly defined herein shall have the respective
meanings given in the Lease.
A G R E E M E N T:
1.Lessor's Consent. LESSOR hereby consents to the Sublease; provided however,
notwithstanding anything contained in the Sublease or this Agreement to the contrary, such consent is
granted by LESSOR only upon the terms and conditions set forth in this Agreement. The Sublease is
subject and subordinate to the Lease, SUB-TENANT shall not violate any of the terms of the Lease, and
SUB-TENANT shall comply with all provisions of the Lease to the extent incorporated into the Sublease.
LESSOR shall not be bound by any of the terms, covenants, conditions, provisions or agreements of the
Sublease. Nothing contained in this Agreement shall: (a) be construed to modify, waive or affect (i) any
of the provisions, covenants or conditions in the Lease, (ii) any of the obligations of TENANT under the
Lease, or (iii) any rights or remedies of LESSOR under the Lease, or to enlarge or increase LESSOR’s
obligations or the rights of TENANT under the Lease; and/or (b) be construed to waive any past, present
or future breach or default on the part of TENANT or SUB-TENANT under the Lease. No modifications
may be made to the Sublease without LESSOR’s prior written consent. In case of any conflict between
the provisions of this Agreement and the provisions of the Sublease, the provisions of this Agreement
shall prevail, unaffected by the Sublease.
2.Non-Release of TENANT; Further Transfers. Neither the Sublease nor this consent
thereto shall release or discharge TENANT from any liability, whether past, present or future, under the
Lease, or alter the primary liability of the TENANT to pay the rent and perform and comply with all of the
obligations of TENANT to be performed under the Lease (including, without limitation, the payment of all
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bills rendered by LESSOR for charges incurred by SUB-TENANT for services and materials supplied to
the Sublet Premises). Neither the Sublease, nor this consent thereto, shall be construed as a waiver of
LESSOR's right to consent to any further subletting either by TENANT or by the SUB-TENANT, or to any
assignment by TENANT of the Lease, or assignment by the SUB-TENANT of the Sublease, or as a
consent to any portion of the Sublet Premises being used or occupied by any other party. LESSOR may
consent to subsequent sublettings and assignments of the Lease or the Sublease or any amendments
or modifications thereto without notifying TENANT or SUB-TENANT, nor anyone else liable under the
Lease, and without obtaining their consent. No such action by LESSOR shall relieve such persons from
any liability to LESSOR or otherwise with regard to the Sublet Premises.
3.Relationship With Lessor. TENANT hereby assigns and transfers to LESSOR TENANT's
interest in the Sublease and all rentals and income arising therefrom, subject to the terms of this Section
3.LESSOR, by consenting to the Sublease agrees that until a default shall occur in the performance of
TENANT's obligations under the Lease, and subject to any payments due LESSOR under Sections “2”
and “4” (“Term” and “Rent”, respectively) of the original Master Lease (dated August 19, 2011; for excess
rental and other excess consideration, as described in such Sections “2” and “4”) and/or other amounts
to which LESSOR is entitled under the Lease, TENANT may receive, collect and enjoy the rents accruing
under the Sublease. In the event TENANT shall default in the performance of its obligations to LESSOR
under the Lease (whether or not LESSOR terminates the Lease), LESSOR may, at its option (in its sole
and absolute discretion) with notice to TENANT, (i) terminate the Sublease, (ii) elect to receive and
collect, directly from SUB-TENANT, all rent and any other sums owing under the Sublease, as further set
forth in Section 3.1 below, and/or (iii) elect to succeed to TENANT's interest in the Sublease and cause
SUB-TENANT to attorn to LESSOR, as further set forth in Section 3.2 below.
3.1 Lessor's Election to Receive Rents. LESSOR shall not, by reason of the Sublease,
the collection of rents or any other sums from the SUB-TENANT, or otherwise, be deemed liable
to SUB-TENANT for any failure of TENANT to perform and comply with any obligation of
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TENANT. TENANT hereby irrevocably authorizes and directs SUB-TENANT, upon receipt of any
written notice from LESSOR stating that a default exists in the performance of TENANT's
obligations under the Lease, to pay to LESSOR the rents and any other sums due under the
Sublease. TENANT agrees that SUB-TENANT shall have the right to rely upon any such
statement and request from LESSOR, and that SUB-TENANT shall pay any such rents and any
other sums to LESSOR without any obligation or right to inquire as to whether such default exists,
and notwithstanding any notice from or claim from TENANT to the contrary. TENANT shall not
have any right or claim against SUB-TENANT for any such rents or any other sums so paid by
SUB-TENANT to LESSOR. LESSOR shall credit TENANT with any rent received by LESSOR
under such assignment, but the acceptance of any payment on account of rent or any other
amount from SUB-TENANT as the result of any such default or otherwise shall in no manner
whatsoever be deemed an attornment by the LESSOR to SUB-TENANT, or by SUB-TENANT to
LESSOR, be deemed a waiver by LESSOR of any provision of the Lease, or serve to release
TENANT from any liability under the terms, covenants, conditions, provisions or agreements
under the Lease.
3.2 LESSOR's Election of SUB-TENANT Attornment. In the event LESSOR elects, at
its option (in its sole and absolute discretion), to cause SUB-TENANT to attorn to LESSOR, SUB-
TENANT shall immediately attorn to LESSOR under the terms of the Sublease, LESSOR shall
undertake the obligations of TENANT under the Sublease from the time of the exercise of the
option, but LESSOR shall not (i) be liable for any prepayment of rent, any security deposit paid
by SUB-TENANT or any other amount paid by SUB-TENANT to TENANT, (ii) be liable for any
improvement allowances, contributions, disbursements, abatement and/or other amounts and/or
concessions to be paid and/or provided by TENANT to SUB-TENANT, (iii) be liable for any
previous act or omission of TENANT under the Lease and/or the Sublease (including, without
limitation, any default by TENANT), (iv) be subject to any defenses or offsets previously accrued
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which SUB-TENANT may have against TENANT, or (v) be bound by any changes or
modifications made to the Sublease without the written consent of LESSOR.
4.General Provisions.
4.1 Brokerage Commission. LESSOR, TENANT, and SUB-TENANT each
acknowledge that there are no brokerage commissions associated, with the Lease or the
Sublease.
4.2 Controlling Law. The terms and provisions of this Agreement shall be construed in
accordance with and governed by the laws of the State of California.
4.3 Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the parties hereto, their heirs, successors and assigns. As used herein, the singular number
includes the plural and the masculine gender includes the feminine and neuter.
4.4 Estoppel. TENANT warrants, represents and certifies to LESSOR that as of the
date of this Agreement: (a) LESSOR is not in default under the Lease; and (b) TENANT does not
have any defenses or offsets to payment of rent and performance of its obligations under the
Lease as and when same becomes due.
4.5 Partial Invalidity. If any term, provision or condition contained in this Agreement
shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the
application of such term, provision or condition to persons or circumstances other than those with
respect to which it is invalid or unenforceable, shall not be affected thereby, and each and every
other term, provision and condition of this Agreement shall be valid and enforceable to the fullest
extent possible permitted by law.
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4.6 Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original part, and all of which together shall constitute a single agreement.
4.7 Attorneys' Fees. If TENANT or LESSOR commences litigation against the other for the
specific performance of this Agreement, for damages for the breach hereof or otherwise for
enforcement of any remedy hereunder, TENANT and LESSOR hereto agree to and hereby do
waive any right to a trial by jury and, in the event of any such commencement of litigation, the
prevailing party shall be entitled to recover from the other party such costs and reasonable
attorneys' fees as may have been incurred. The Section 4.7 shall not apply to SUB-TENANT.
4.8 Notices. The persons and their addresses having authority to give and receive notices
under this Agreement include the following:
Omninet Property Management, Inc.
9420 Wilshire Blvd, Suite 400
Beverly Hills, CA 90212-3151
Omninet Properties Manchester Center, LLC
1901 E Shields Avenue, Suite 203
Fresno, California 93726-5310
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IN WITNESS WHEREO F, the parties hereto have executed this Consent to Sub-lease
Agreement as of the day and year first hereinabove written.
LESSOR
OMNINET PROPERTIES MANCHESTER
CENTER, LLC, a Delaware limited liability
company
By: California Mall Ventures , LLC,
a Delaware limited liability company
Its: Member
Mailing Address
Omninet Properties Manchester, LLC
c/o Benjamin Nazarian
9420 Wilshire Blvd. Suite 400
Beverly Hills, CA 90212
Telephone: (310) 300-4100
Facsimile: (310) 300-4101
With Copy to:
Omninet Property Management, Inc.
9420 Wilshire Boulevard
Suite 400
Beverly Hills, California 90212
Attention: Operations
And to:
Omni net Properties Manchester Center, LLC
1901 E. Shields Avenue
Suite 203
Fresno, California 93726
Attention: Property Manager
TENANT/SUB -LESSOR
COUNTY OF FRES N O,
SUB-TENA NT
Nathan Magsig
Chairman of the Board of Supervisors of
the County of Fresno
ATTEST :
Bernice E. Seidel
Clerk of the Board of Supervisors
County of Fresno, State of California