SUBLEASE
THIS SUBLEASE, made and entered into as of the 12th day of August,
2003, by and between General Electric Capital Assurance Company, a Delaware
corporation having an office and principal place of business at 0000 Xxxx Xxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000, hereinafter called "Sublessor", and SYNOVA
HEALTHCARE INC. a Delaware corporation, having an office and principal place of
business at 0000 Xxxxxxxxxxx Xxxx - #000, Xxxxxxx Xxxxxx, Xxxxxxxxxxxx, 00000
hereinafter called "Sublessee".
WITNESSETH:
WHEREAS, by a certain written lease agreement dated August 23, 2000,
(hereinafter called "Master Lease"), Cal-Tree Realty Associates, L.P.,
(hereinafter called "Owner") leased to Sublessor certain space (hereinafter
called "Premises") consisting of a portion of the building known as Rose Tree II
(hereinafter called "Building") located at 0000 Xxxxx Xxxxxxxxxx Xxxx, Xxxxx,
Xxxxxxxxxxxx for a term of 60 months, commencing on December 1, 2000 and ending
on November 30, 2005; and
WHEREAS, Sublessee desires to sublease and hire from Sublessor, and
Sublessor is willing to sublet to Sublessee, the entire Premises as described in
said Master Lease which is shown hatched on the plan attached hereto as Exhibit
"A" containing approximately 2,476 rentable square feet of space (hereinafter
called the "Sublease Premises"), on the terms and conditions more particularly
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants, conditions
and agreements herein contained, Sublessor and Sublessee agree as follows:
1. Sublessor, for and in consideration of the rents and covenants
specified to be paid, performed and observed by sublessee, does hereby let,
sublet, lease and demise to Sublessee the aforementioned Sublease Premises for
the term and subject to the covenants and conditions contained herein.
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2. TERM: This Sublease shall be for a term of twenty-seven (27) months
commencing on September 1, 2003 and terminating on November 30, 2005.
3. RENT: Sublessee shall pay to Sublessor as rent for said Sublease
Premises the sum of Twenty-Four Thousand Seven Hundred Sixty Dollars and 00/100
Dollars ($24,760.00) per annum ($10.00 per RSF), payable in monthly
installments of Two Thousand Sixty-Three Dollars and 33/100 Dollars ($2063.33)
in advance on the 1st day of each and every month during the term hereof. In
addition, Sublessee shall promptly pay to Sublessor One Hundred percent (100%)
of any and all other payments of any nature whatsoever, (hereinafter called
"additional rent") which may be required to be made by Sublessor to Owner
pursuant to the Master Lease, except as to those payments specifically excluded
by the terms of this Sublease or which cover a period prior to the rent
commencement date or succeeding the termination date of this Sublease. Any such
payments which Sublessee is herein required to make which cover a period of time
both before and after the commencement date of this sublease shall be prorated
between the parties hereto as of the commencement date of this Sublease. Payment
of said rent and additional rent shall be made to Sublessor at the following
address:
General Electric Capital Assurance Company
c/o GE Financial Assurance
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Jo Xxx X. Xxxx
or at such other place as Sublessor may designate in writing, without any offset
or deduction whatsoever. Sublessee will not be responsible for operating
expense passthroughs.
4. MASTER LEASE: The provisions of the Master Lease, attached hereto as
Exhibit "B" are, except as otherwise herein specifically provided, hereby
incorporated in this Sublease with the same effect as if entirely rewritten
herein, and shall fix the rights and obligations of the parties hereto with
respect to the Sublease Premises with the same effect as if Sublessor and
Sublessee were, respectively, the landlord and tenant named in the Master Lease.
Sublessee hereby covenants to perform all of the covenants and undertakings of
Sublessor as tenant under the Master Lease, including providing insurance
coverage, during the term of this Sublease, and agrees not to do or permit to be
done any act which shall result in a breach or violation of any of the terms
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and conditions of the Master Lease. Except as otherwise specifically provided
herein, Sublessee is to have the benefit of the covenants and undertaking of
Owner as landlord in the Master Lease to the extent the same are applicable to
the Sublease Premises during the term of this Sublease. It is expressly
understood and agreed, however, that Sublessor is not in the position to render
any of the services or to perform any of the obligations required of Sublessor
by the terms of this Sublease which are the responsibility of Owner as landlord
under the Master Lease, and that performance by Sublessor of its obligations
hereunder are conditioned upon due performance by Owner of its corresponding
obligations under the Master Lease. It is further understood and agreed,
therefore, that notwithstanding anything to the contrary contained in this
Sublease, Sublessor shall not be in default under this Sublease for failure to
render such services or perform such obligations required of Sublessor by the
terms of the Sublease which are the responsibility of the Owner as landlord
under the Master Lease, but Sublessor agrees to take all reasonable measures to
insure that Owner performs said obligations. The term "reasonable measures"
shall not include legal action against Owner for its failure to so perform,
unless Sublessee agrees to pay all costs and expenses incurred in connection
therewith. In the event of the cancellation or termination of the Master Lease
prior to the expiration date thereof and prior to the expiration date of this
Sublease, or in the event of the surrender thereof, whether voluntary,
involuntary or by operation of law, the Sublessee shall make full and complete
attornment to the Owner for the balance of the terms of this Sublease, upon the
same covenants and conditions as are contained herein.
5. HOLDING OVER: Any holding over by the Sublessee beyond the
expiration date of this Sublease shall be deemed unlawful unless expressly
consented to by Sublessor in writing, and Sublessor shall be entitled to any and
all remedies in law or in equity by reason of such unlawful holding over by
Sublessee. Sublessee agrees to indemnify and save Sublessor harmless against and
from any and all loss, cost, expense and liability incurred by Sublessor under
the Master Lease by reason of any such holding over.
6. INSURANCE: Sublessee agrees to carry public liability insurance and
property damage insurance in amounts stipulated in the Master Lease, with
companies satisfactory to Sublessor. Sublessee shall provide to Sublessor
certificates evidencing
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such insurance and further agrees to maintain coverage in the required amounts
during the entire term of the Sublease.
7. NOTICES: All notices, requests, demands and other communications
with respect to this Sublease, whether or not herein expressly provided for,
shall be in writing and shall be deemed to have been duly given either (a)
forty-eight (48) hours after being mailed by United States First-Class Certified
or Registered mail, postage prepaid, return receipt requested or (b) the next
business day after being deposited (in time for delivery by such service on
such business day) with Federal Express or another national courier service, for
delivery to the parties at the respective addresses specified below, or to such
other address or addresses as may hereafter be designated by either party in
writing for such purpose.
IF TO SUBLESSOR: GENERAL ELECTRIC CAPITAL ASSURANCE COMPANY
c/o GE Financial Assurance
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx Xxxxxxxx 00000
Attention: Jo Xxx X. Xxxx
ADDITIONAL NOTICE: (ENTER ANY ADDITIONAL NOTICES HERE)
Attention: _____________________
IF TO SUBLESSEE: SYNOVA HEALTHCARE INC.
0000 Xxxx Xxxxxxx Xxxx - #000
Xxxxxxx Xxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx
8. SUBORDINATION: This Sublease is subject and subordinate in all
respects to the Master Lease.
9. ASSIGNMENT AND SUBLETTING: Sublessee shall not, without the prior
written consent of Sublessor, assign the term hereby demised, nor suffer or
permit it to be assigned by operation of law or otherwise, nor shall the
Sublessee, without the prior written consent of the Sublessor, let or underlet
or permit the said Sublease Premises or any part thereof to be used by others
for hire.
10. CONDITION OF PREMISES: Sublessee acknowledges that it has inspected
the Sublease Premises demised hereunder, and is fully satisfied with their
condition and accepts the same, "as is". Sublessor has made no representation or
warranties of any
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nature whatsoever with regard to the Sublease Premises, other than those set
forth herein, and Sublessor shall have no obligation or duty with regard to
preparation of the Sublease Premises for occupancy by Sublessee.
11. DEPOSIT: Sublessee shall, upon written consent of Owner to Sublease
to Sublessor, deposit with Sublessor the sum of Twelve Thousand Three Hundred
Eighty Dollars ($12,380.00) as security for the faithful performance and
observance by Sublessee of the terms, provisions and conditions of this
Sublease. It is agreed that in the event Sublessee defaults in respect to any of
the terms, provisions and conditions of this Sublease or the Master Lease,
including, but not limited to, the payment of rent and additional rent,
Sublessor may use, apply or retain the whole or any part of the security so
deposited to the extent required for the payment of any rent and additional rent
or any other sum as to which Sublessee is in default or for any sum which
Sublessor may expend or may be required to expend by reason of Sublessee's
default in respect to any of the terms, covenants and conditions of this
Sublease or the Master Lease, including but not limited to, any damages or
deficiency accrued before or after summary proceedings or other re-entry by
Sublessor. In the event of a sale or other transfer of Sublessor's interest in
this Sublease, Sublessor shall have the right to transfer the security to the
vendee or transferee and Sublessor shall thereupon be released by Sublessee from
all liability for the return of such security; and Sublessee agrees to look to
the new Sublessor solely for the return of said security; and it is agreed that
the provisions hereof shall apply to every transfer or assignment made of the
security to a new Sublessor. Sublessee further covenants that it will not assign
or encumber or attempt to assign or encumber the monies deposited herein as
security, and that neither Sublessor nor its successors or assigns shall be
bound by any such assignment, encumbrance, attempted assignment or attempted
encumbrance. Notwithstanding the above, in the event that Sublessee pays their
rental payments on time and in full for the first twelve (12) months of the
Term, then Sublessor shall apply one-half of the Deposit towards Sublessee's
rent for months 13, 14, and 15 of the Term. Should Sublessee pay their rent in
full and on time through month 24 of the Term, then Sublessor shall apply the
remaining Deposit money towards Sublessee's rent for months 25, 26, and 27.
12. INDEMNIFICATION: Sublessee shall indemnify and save harmless
Sublessor against and from any and all liability, damage, expense, cause of
action, suits, claims, or judgments for injury or death to persons or damage to
property
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sustained by anyone in and about said Sublease Premises or any part thereof,
arising out of or in any way connected with Sublessee's use or occupation of the
Sublease Premises or this Sublease, or any such claim or any action or
proceeding brought thereon including, but without limitation, counsel and
witness fees in defending against such claim. Sublessee shall carry liability
insurance sufficient to effect such indemnity, in amounts satisfactory to
Sublessor. This indemnity is in addition to, and not in derogation of, any
rights Sublessor may have as the deemed landlord under the Master Lease.
13. HAZARDOUS SUBSTANCES: Sublessee shall not cause or permit any
"Hazardous Substances" (as hereinafter defined) to be used, stored, generated or
disposed of in, on or about the Sublease Premises by Sublessee, its agents,
employees, contractors or invitees, except for such Hazardous Substances as are
normally utilized in the activities which are permitted on the Sublease Premises
pursuant to the Master Lease and this Sublease and which are necessary to
Sublessee's business. Any such Hazardous Substances permitted on the Sublease
Premises are hereinabove provided, and all containers therefor, shall be used,
kept, stored and disposed of in a manner that complies with all federal, state
and local laws or regulations applicable to any such Hazardous Substances.
Sublessee shall indemnify and hold harmless Sublessor from any and all claims,
damages, fines, judgments, penalties, costs, expenses or liabilities
(including, without limitation, any and all sums paid for settlement of claims,
attorney's fees, consultant and expert fees) arising during or after the
Sublease term from or in connection with the use, storage, generation or
disposal of Hazardous Substances in, on or about the Sublease Premises by
Sublessee, Sublessee's agents, employees, contractors or invitees. As used
herein, "Hazardous Substances" means any substance which is toxic, ignitable,
reactive, or corrosive and which is regulated by any state or local government
or by the United States government. "Hazardous Substances" includes any and all
material or substances which are defined as "hazardous waste", "extremely
hazardous waste" or a "hazardous substance" pursuant to state, federal or local
governmental law. "Hazardous Substances" includes but is not restricted to
asbestos, polychlorinated biphenyls ("PCBs") and petroleum products.
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14. This Agreement and any Exhibits attached hereto:
a. Contain the entire agreement among the parties hereto with
respect to the subject matter covered hereby;
b. May not be amended or rescinded except by an instrument in
writing executed by each of the parties hereto;
c. Shall inure to the benefit of and be binding upon the successors
and permitted assigns of the parties hereto.
15. LANDLORD CONSENT: This Sublease is subject to and conditioned upon
the written consent of Owner to this subletting and to the alterations to be
made to the Sublease Premises by Sublessee, such consent to be given by Owner
executing this Sublease in the space provided therefore below no later than
thirty (30) days after the execution by Sublessor. In the absence or failure of
such consent, this Sublease shall automatically extinguish and be of no further
force or effect; the deposit set forth in Paragraph 11 hereof shall not be paid
or owed by Sublessee and the parties released from any further obligation to one
another.
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IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
as of the day and year first above written.
SUBLESSOR:
GENERAL ELECTRIC CAPITAL ASSURANCE
COMPANY
/s/ R. Xxxxxx Xxxxxx
/s/ Illegible ------------------------------------
--------------------------------------- R. Xxxxxx Xxxxxx
Witness Vice President
SUBLESSEE:
SYNOVA HEALTHCARE INC
/s/ Xxxxxxx X. Xxxx
/s/ Illegible ------------------------------------
--------------------------------------- By: Xx. Xxxxxxx X. Xxxx
Witness Its: President & CEO
This subletting is hereby consented to and approved, and the
undersigned hereby further specifically consents to and approves of this
Sublease.
OWNER:
Cal-Tree Realty Associates, L.P.
------------------------------------
By:
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Witness Its:
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