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Exhibit 10.12(d)
LANVISION SYSTEMS, INC.
SUBLEASE AND CONSENT BETWEEN LANVISION, INC. AND LIFESTYLE TECHNOLOGIES, INC.
SUBLEASE AND CONSENT
1 INTRODUCTION
1.1 This Sublease and Consent ("Sublease") is made as of May 1, 2000
between LanVision, Inc. ("Sublessor") and LifeStyle Technologies, Inc.
("Sublessee").
1.2 Fairview Plaza Associates Limited Partnership ("Lessor"), as lessor,
and Sublessor, as lessee, on February 26, 1996, entered into a Lease,
as amended on August 12, 1996, and on May 21, 1997, ("Lease") having a
lease commencement date of March 15, 1996 for certain office space and
improvements known as Suite 650 of the 0000 Xxxxxxxx Xxxxx Xxxxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx ("Premises"), all as more particularly set
forth in the Lease, which is attached hereto as Exhibit B.
1.3 Sublessor now desires to sublease the Premises to Sublessee for the
occupancy and use of Sublessee, and Sublessee desires to sublease the
Premises from Sublessor, upon the terms and subject to the conditions
set forth in this Sublease.
1.4 In consideration of the mutual covenants and agreements set forth in
this Sublease, Sublessor and Sublessee, intending to be legally bound,
do hereby agree to the terms and conditions set forth in this Sublease.
2 Term
2.1 Sublessor hereby subleases to Sublessee and Sublessee hereby subleases
from Sublessor the Premises for a term ("Sublease Term") commencing as
of May 8, 2000 and expiring on June 14, 2002.
3 Rent
3.1 Sublessee agrees to pay to Sublessor, without set-off, abatement,
credit, deduction, or claim of off-set, rent ("Rent") for the Premises
in an amount equal to the base rent and rental escalations payable by
Sublessor under the Lease. Rent shall be payable in advance, on the
first day of each month during the Sublease Term. All Rent shall be
paid to Sublessor in care of Lessor (until such time as Sublessor may
direct Sublessee otherwise) at Lessor's offices at 0000 Xxxxxxxx Xxxx,
Xxxxx 000, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, or at such other address as
Sublessor may from time to time designate by notice to Sublessee. In
the event the Sublease Term commences or expires on any day other than
the first or last day of a month, respectively, then the Rent for such
month shall be prorated accordingly.
3.2 All Rent due that is not received by Sublessor by the fifth day of the
month is subject to a late charge of 1 1/2% per month.
3.3 Sublessor agrees to pay all amounts payable pursuant to the Lease,
whether for rent or otherwise,
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and whether payable to Lessor or any other party, as and when due.
Except as otherwise expressly set forth herein, Sublessee's sole
monetary obligation hereunder shall be the payment of Rent and such
other amounts that may become due under this Sublease.
4 SECURITY DEPOSIT
4.1 Sublessee shall with the execution of this Sublease deposit with
Sublessor (in care of Lessor as specified in Paragraph 4.2 below) the
sum of $24,621.68 as security for the performance by Sublessee of all
terms, covenants, agreements, and conditions of this Sublease to be
observed or performed by Sublessee. Sublessor shall have the right to
apply any part of the deposit to cure any default of Sublessee, and, if
Sublessor does so, Sublessor shall, upon demand, deposit with Sublessor
the amount so applied so that Sublessor shall have the full deposit on
hand at all times during the Sublease Term. Notwithstanding the
foregoing, at Sublessee's option and to the extent the deposit is
sufficient in amount, the deposit shall be applied against the Rent due
for the last two months of the Sublease Term.
4.2 Sublessee shall pay the security deposit to the care of Lessor by check
made payable to Fairview Plaza Associates Limited Partnership and
delivered to it at 0000 Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000. Lessor shall hold the security deposit in escrow in
accordance with Lessor's security deposit escrow policies and
procedures. Lessor may apply the security deposit for the benefit of
Sublessor and/or Sublessee only in accordance with the terms of this
Sublease.
5 Condition of Premises and Improvements
5.1 Sublessee accepts the Premises from Sublessor in its present condition.
Sublessor is not obligated to improve the Premises for Sublessee.
6 Subletting and Assignment
6.1 Sublessee shall not sublet the Premises, or any portion thereof, or
assign this Sublease, in whole or in part, without the prior written
consent of Sublessor and Lessor, which consents shall not be
unreasonably withheld.
7 Lease Provisions
7.1 Except as otherwise expressly herein provided or modified by this
Sublease (including, without limitation, the limitations on Sublessee's
monetary obligations under this Sublease), Sublessee hereby assumes and
agrees to fully adhere to, perform, and comply with the covenants,
agreements, duties and obligations of the Sublessor under the Lease,
with respect to the Premises only, as if it were the "Lessee" therein.
Each of such covenants, agreements, duties, and obligations is
incorporated herein.
7.2 In the event of a conflict between the terms of this Sublease and the
terms of the Lease, the terms of this Sublease shall prevail.
8 Subordination
Sublessee acknowledges and agrees that this Sublease is, and at all
times shall be, expressly subordinate to the Lease, and all present or
future (a) ground and underlying leases of all or any portion of the
Premises now or hereafter existing, (b) mortgages or trust deeds
affecting all or any portion of the Premises, (c) advances under such
mortgages or trust deeds and (d) renewals, modifications, replacements
and extensions of any such leases, mortgages or trust deeds.
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9 Indemnification
Subject to any waiver of rights and subrogation contained in the Lease,
Sublessor and Sublessee hereby each indemnify and agree to defend and
hold the other and its officers, directors, employees, agents,
licensees, and contractors harmless from and against any and all
claims, actions, demands, suits, losses, expenses (including attorney's
fees), judgments, and liabilities arising out of or in any way relating
to the indemnifying party's breach of or failure to perform any of its
obligations hereunder or from the negligence or willful misconduct of
the indemnifying party its officers, directors, employees, agents,
licenses, or contractors occurring in connection with the Premises. The
scope of this indemnification shall, at the indemnified party's option,
include, but not be limited to, defense with attorneys satisfactory to
such party, of any action, suit, claim, or proceeding that may be
filed, instituted, or brought against the indemnified party or to which
such party may be made a party.
10 SALE OF EQUIPMENT, FURNITURE, AND FURNISHINGS
10.1 For the consideration of $57,000 paid with the execution of this
Sublease by Sublessee to Sublessor, Sublessor hereby sells and delivers
to Sublessee all of Sublessor's right, title, and interest in and to
the equipment, furniture, and furnishings listed in Exhibit A attached
hereto, free and clear of all liens and encumbrances. In addition to
Sublessee's obligations for insurance coverage under the Lease pursuant
to Paragraph 7.1 above, Sublessee shall have Sublessor named as a "loss
payee" under the applicable insurance policy to cover Sublessor's
interest under Paragraph 11.6 in the equipment, furniture, and
furnishings listed in Exhibit A.
11 Default
11.1 If Sublessor fails to observe or perform any of the terms, covenants,
agreements, or conditions on its part to be observed or performed under
this Sublease and such failure continues uncorrected for 30 days after
written notice thereof from Sublessee, unless otherwise specified
herein and subject to the provisions of Paragraph 11.3, Sublessee may,
at any time thereafter during the continuance of such default,
terminate this Sublease upon written notice to Sublessor.
11.2 If Sublessee fails (a) to pay Rent and such failure continues for a
period of five days after written notice thereof to Sublessee, or (b)
fails to observe or perform any other covenant, provision, or condition
herein required to be observed or performed by Sublessee, and such
failure continues uncorrected for 30 days after written notice thereof
to Sublessee, unless otherwise specified herein and subject to the
provisions of Paragraph 11.3, Sublessor may, at any time thereafter
during the continuance of such default, terminate this Sublease upon
written notice to Sublessee.
11.3 Except for defaults in the payment of Rent, if any default by either
party reasonably cannot be remedied within the period of time
prescribed herein for curing such default and if such party has
commenced to remedy such default and diligently pursues such remedy
thereafter, then such party shall have such additional time as
reasonably necessary to remedy the default before this Sublease can be
terminated or other remedies enforced.
11.4 In case either party to this Sublease defaults in the performance of
any covenant, condition, or agreement to be performed by such party
hereunder, the other party may, but shall not be required to, perform
the same and any monies reasonably advanced or expenses reasonably
incurred in so doing, plus interest thereon at the rate of 15% per
annum, shall be and become due and owing from the party on whose behalf
the other party is performing.
11.5 In addition to the right to terminate this Sublease, upon the
occurrence of a default hereunder and the expiration of any applicable
notice and cure periods, the nondefaulting party shall be entitled to
pursue all available remedies at law or in equity, including, without
limitation, injunctive relief.
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11.6 If Sublessor terminates this Sublease because of Sublessee's default, in
addition to the other remedies available to Sublessor, Sublessee, at
Sublessor's option (the exercise of which shall be expressed in the
termination notice under Paragraph 11.2), shall be deemed to have
automatically assigned and delivered to Sublessor all of Sublessee's
right, title, and interest in and to the equipment, furniture, and
furnishings listed in Exhibit A attached hereto, free and clear of all
liens and encumbrances. Thereupon, Sublessor shall have the right to
enter the Premises and take possession of such equipment, furniture, and
furnishings.
12 Miscellaneous
12.1 Waiver. The failure of either party to act upon any right, remedy, or
breach of this Sublease shall not constitute a waiver of that or any
other right, remedy, or breach. No waiver shall be effective unless
made in writing and signed by an authorized representative of the
waiving party.
12.2 Notices. Unless provided otherwise in this Sublease, any notice
required or permitted under this Sublease shall be personally
delivered, or sent by telefax, courier, express or overnight delivery
service, or by certified mail, postage prepaid, return receipt
requested, to the following address:
If to Sublessor: LanVision, Inc.
0000 Xxxxx Xxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Controller
Telefax: (000) 000-0000
If to Sublessee: LifeStyle Technologies, Inc.
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx Xxxxxxx
Telefax: 000-000-0000
12.3 Governing Law. This Sublease and any claim arising out of this Sublease
shall be governed by and construed in accordance with the laws of the
State of North Carolina, excluding its conflict of laws principles.
12.4 Provisions Severable. The provisions of this Sublease are severable. If
any provision is held to be invalid, unenforceable, or void, the
remaining provisions shall not as a result be invalidated.
12.5 Entire Agreement. This Sublease constitutes the entire agreement and
understanding between the parties relating to the object and scope of
this Sublease. Any representation, statement, or warranty not expressly
contained in this Sublease shall not be enforceable by the parties.
This Sublease may not be amended except by a writing that specifically
references this Sublease and is signed by authorized representatives of
the parties.
LifeStyle Technologies, Inc. LanVision, Inc.
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxx Xxxxxxxx
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(Signature) (Signature)
Xxxx Xxxxxxx Xxxx X. Xxxxxxxx
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(Name Typed or Printed) (Name Typed or Printed)
President Executive Vice President
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(Title) (Title)
5-12-00 5/12/00
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(Date) (Date)
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LESSOR'S CONSENT
Lessor hereby consents to this Sublease as set forth above; subject to the
provisions of Addendum A attached hereto (which Addendum A is hereby
incorporated into this Sublease by this reference); provided, however, that this
consent is without waiver of any restriction in the Lease concerning further
assignment or subletting.
Fairview Plaza Associates Limited Partnership, a
North Carolina limited partnership, by Fairview Plaza
Associates Limited Partnership, its general partner,
by American Asset Corporation, its general partner
By: /s/ Xxxx X. Xxxxxxx
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(Signature)
Xxxx X. Xxxxxxx
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(Name Typed or Printed)
V.P.
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(Title)
5/17/00
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(Date)
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ADDENDUM A
1. As between Sublessee and Lessor and as between Sublessor and Lessor,
the Sublease is and shall be subject and subordinate to the Lease and all of the
covenants, agreements, terms, provisions and conditions contained in the Lease.
With respect to Sublessor and Lessor, if there is a conflict between a provision
in the Lease and a provision in the Sublease, the provision in the Lease shall
prevail.
2. Notwithstanding anything contained in the Sublease, Sublessor shall
remain fully and primarily liable for the payment of rental and other amounts
due under the Lease and for the performance of all the obligations and
compliance with all of the covenants of the "lessee" under the Lease. The
Sublease shall not release or discharge Sublessor from any liability under the
Lease.
3. The parties hereto agree that Lessor may, after a default by
Sublessor in the payment of rent or other amounts under the Lease, collect all
rents and other amounts due and owing from Sublessee under the Sublease, and
such collection thereof shall not be deemed a waiver of any rights and remedies
of Lessor against Sublessor as the lessee under the Lease.
4. The acceptance by Lessor of rent and other amounts due under the
Sublease from Sublessee or any third party shall not be deemed a waiver by
Lessor of the obligation of Sublessor to pay rent and other amounts as provided
in the Lease. The performance of any obligation required of Sublessor under the
Lease by Sublessee or any third party shall not be deemed a waiver by Lessor of
the duty of Sublessor to perform such obligation.
5. Any act or omission of Sublessee or anyone claiming under or through
Sublessee that violates any of the provisions of the Lease shall be deemed a
violation of the Lease by Sublessor.
6.The Sublease and Lessor's execution thereof shall not have the effect
of (a) modifying, waiving, impairing or affecting (i) any of the covenants,
agreements, terms provisions or conditions contained in the Lease, (ii) any of
Sublessor's obligations under the Lease or (iii) any breach or default by
Sublessor in the performance or observance of its obligations under the Lease,
nor (b) increasing Lessor's obligations or liability or Sublessor's rights under
the Lease.
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EXHIBIT A
TO
SUBLEASE AND CONSENT
Equipment, Furniture, and Furnishings
Item Description Quantity Sale Price
Nortel Star Plus Phone System 1 $ 6488
(original price $28,872)
Network Ports, Cat5 Cabling and Phone $ 2290
Wiring (original price $11,360)
Casi-Rusco Micro5 Security System 1 $ 5332
(original price $17,463)
Air Conditioning Unit in Server Room 1 $ 3435
Cubes A (new) 22 $20,151
Cubes B 7 $ 4809
Adjustable Desk Chairs 32 $ 3053
Chairs (regular) 21 $ 1,000
Conference Room Desk 1 $ 282
Conference Room Chairs 14 $ 1282
Conference Room Credenza (large) 1 $ 249
Conference Room Premium White Board 1 $ 368
Color Paintings 5 $ 260
Secretary Receptions Desk 1 $ 282
Reception Area Tables 1 $ 31
File Cabinets (large) 6 $ 1,099
Computer Desk and Chair 1 $ 225
Conference Room Desk (small) 1 $ 64
Conference Room Credenza (small) 1 $ 112
Conference Room White Board 1 $ 45
Break Room Chairs 6 $ 134
Adjustable Bar Stool Chairs 4 $ 382
Office Desks 4 $ 1981
CSPro 6000 Copy Machine 1 $ 3649
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$57,000
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EXHIBIT B
TO
SUBLEASE AND CONSENT
The Fairview Plaza Associates Limited Partnership Lease and additional
Amendments were previously provided to LifeStyle Technologies, Inc. under
separate cover.
