EXHIBIT 10.31
SUBLEASE AGREEMENT
------------------
THIS SUBLEASE AGREEMENT (this "Sublease') is made and entered into as
of the 30 day of March, 1998, by and between QUALITY DIAGNOSTIC SERVICES, INC.,
a Georgia corporation, formerly known as Quality Diagnostic Cardiology Services,
Inc., (the "Sublandlord") and CARD GUARD USA, INC., a Georgia corporation (the
"Subtenant"), to be effective as of the "Commencement Date", as hereinafter
defined.
WITNESSETH:
-----------
WHEREAS, Sublandlord, by Lease Agreement dated September 16, 1996,
(the "Master Lease"), leased from Pavilion Partners, L.P. (the "Landlord") Suite
370 comprising 2,093 rentable square feet (the "Premises"), of that certain
building located at 0000 Xxxx Xxxxx Xxxxx, Xxxxxxx, Xxxxxxx (the "Building"),
such Premises being more particularly described on Exhibit B to the Master Lease
(a copy of which Master Lease is attached hereto as Exhibit "A" and made a part
-----------
hereof); and
WHEREAS, Subtenant desires to sublease the Premises on the terms and
conditions set forth below;
NOW THEREFORE, for and in consideration of the sum of TEN and NO/100
Dollars, the mutual promises set forth below, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto, intending to be legally bound, do hereby agree as follows:
1. Premises; Term
--------------
Sublandlord hereby subleases to Subtenant, and Subtenant hereby subleases
from Sublandlord, the Premises for a term (the "Sublease Term") commencing on
the date (the "Commencement Date") which is the earlier of (i) the date of
occupancy agreed to by Sublandlord and Subtenant, or (ii) March ____, 1998, and
ending March 30, 2001 (the "Expiration Date") unless sooner terminated according
to the terms hereof.
2. Subordination
-------------
This Sublease is hereby expressly made subject and subordinate to the
Master Lease and shall be upon the same terms, covenants and conditions provided
in the Master Lease as applicable to the Premises (except such as by their
nature are inapplicable to or inconsistent with this Sublease or as otherwise
provided herein). Subtenant acknowledges that its possession and use of the
Premises shall at all times be subject to the rights of Landlord set forth in
the Master Lease. Sublandlord shall have no liability to Subtenant for any acts
of the Landlord pursuant to the Master Lease. The provisions of the Master Lease
pertaining to the Premises are deemed included herein and made a part hereof
("Sublandlord" being substituted for "Landlord" and "Subtenant" being
substituted for "Tenant"), except that Subtenant's obligations for each subject
addressed in this Sublease, including rental obligations, are limited to the
terms of this Sublease.
3. Obligations Under Master Lease
------------------------------
For the purposes of this Sublease only, from and after the Commencement
Date, and only with respect to matters first accruing thereafter, Subtenant
hereby assumes all of the responsibilities and obligations to be performed on
the part of Sublandlord as tenant under the Master Lease with respect to the
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Premises for the entire Sublease Term (other than the obligations to pay rent
and additional rent and other amounts which are governed by this Sublease).
Subtenant covenants and agrees not to do, permit or allow, by anyone under
Subtenant's control, any act which would violate or constitute a breach of or a
default under the Master Lease. Upon any breach by Subtenant of any of the
terms, covenants, or agreements to be performed or observed under this Sublease
by Subtenant, which breach is not cured within the applicable notice and cure
period under the Master Lease, Sublandlord may exercise any of the rights given
to the Landlord under the Master Lease, subject to the limitations thereof and
hereof, and the exercise thereof shall not be in derogation of, but shall be in
addition to any other remedies available to Sublandlord, hereunder or under law
or equity.
4. Termination
-----------
In the event the Master Lease is terminated pursuant to its terms prior to
the expiration of the term of this Sublease, this Sublease shall automatically
cease and terminate as of the date upon which the Master Lease is terminated.
Upon any such termination of the Master Lease, all rent due hereunder shall be
prorated from the first day of the month of termination. Neither party, provided
it is not responsible for a default causing such termination, shall have any
further obligation or liability to the other arising out of this Sublease except
for the payment by Subtenant of such amounts of rent as so prorated and any
other amounts accrued as of the date of termination, and except for rights or
obligations that had accrued prior to the effective date of the termination of
this Sublease. To the extent that Sublandlord has over (30) days' notice of such
termination, Sublandlord agrees to give Subtenant reasonable notice at least
thirty (30) days prior to any such termination date, and shall in any event
forward any such notice of termination to Subtenant promptly upon receipt.
5. Rent
----
A. Base Rental
-----------
Subtenant shall pay Sublandlord the Base Rental, as defined in the Master
Lease, for the Premises during the Sublease Term which, as of the date hereof,
is $3,328.00 per month. The Base Rental shall be payable in advance in equal
monthly installments beginning on the Commencement Date and continuing on the
25th day of each and every month thereafter ("Due Date"), during the Sublease
Term, without demand, deduction, set-off or abatement whatsoever. Said payments
of Base Rental shall be made directly to Sublandlord at the address of
Sublandlord set forth herein. Appropriate prorations shall be made in the event
the Commencement Date is not a Due Date or in the event that the Sublease
terminates prior to a Due Date.
B. Additional Rental
-----------------
Subtenant shall also pay Sublandlord, any and all Additional Rental, as
defined in the Master Lease, as and when the same shall become due and payable
under the provisions of the Master Lease. Subtenant shall remit the Additional
Rental for each month to Sublandlord on the Due Date of the successive month
which, as of the date hereof, is $0.00 per month. Any year-end adjustment of
Additional Rental pursuant to Section 7(ii) or (iii) of the Master Lease shall
be prorated between Sublandlord and Subtenant based on Commencement or
Termination Date, as the case may be and at the time of adjustment between
Landlord and Sublandlord for any full calendar year.
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C. Late Charge
-----------
Any rental amounts not received within five (5) days of when due shall bear
interest at the rate of one and one-half percent (1.5%) per month until paid.
6. Condition of Premises
---------------------
Subtenant represents that it has made a thorough examination and inspection
of the Premises and is familiar with the condition of such property, and
Subtenant agrees to accept the Premises in their "as is" condition, as of the
date of this Sublease. Subtenant agrees that it enters into this Sublease
without any representations or warranties by Sublandlord, its agents,
representatives, servants or employees or any other person, as to the condition
or use by Subtenant of the Premises.
7. Exclusion from Master Lease
---------------------------
The following Articles or Sections of the Master Lease are expressly
excluded from this Sublease and shall not apply to Subtenant: any renewal
options, or options to lease additional space in the Building, or rights of
first refusal with regard to space in the Building. Subtenant acknowledges and
agrees the such rights are personal to Sublandlord and that Subtenant shall have
no rights to exercise such options and renewals, if any, contained in the Master
Lease.
8. Services, Utilities, Maintenance and airs
-----------------------------------------
Subtenant acknowledges and agrees that Sublandlord shall provide, only via
the Landlord, maintenance or repair of the Premises, utilities or services
described as being provided by the Landlord in the Master Lease. Subtenant
agrees that, in cooperation with the Sublandlord, it shall look solely to the
Landlord and not to Sublandlord for the rendition of all such services and the
performance of all obligations required to be furnished and performed in the
Premises. Subtenant shall receive directly from the Landlord all services and
utilities and the performance of all obligations which the Landlord is required
to provide in and for the benefit of the Premises, and Sublandlord shall have no
liability whatsoever in the event that Landlord fails to furnish or perform any
such services or obligations during the Sublease Term. However, Sublandlord
agrees to cooperate with Subtenant in good faith, in dealings with and notices
to Landlord regarding services, utilities, maintenance and repair of the
Premises.
9. Additional Services
-------------------
Subtenant covenants and agrees to pay any fees and expenses assessed by
Landlord pursuant to the Master Lease resulting from Subtenant's use and
occupancy of the Premises. In addition, if other services not provided by
Landlord (the "Other Services") are obtained for the benefit of Subtenant,
Subtenant shall bear all of such costs, and Sublandlord agrees to cooperate with
Subtenant, to the extent reasonably requested, in obtaining such Other Services,
provided same are at no cost to Sublandlord.
10. Use of Premises
---------------
Subtenant shall use the Premises only for the "Permitted Use" as defined in
the Master Lease, and shall not use the Premises for any use or purpose which
would violate the Master Lease. Subtenant shall not change the use of the
Premises without the prior written consent of the Sublandlord, in its reasonable
discretion and Landlord, in the manner provided in the Master Lease. During the
Sublease Term, Subtenant agrees to assume any responsibility previously borne by
Sublandlord in its capacity as tenant under the Master Lease regarding the
Occupational Safety Health Act, the Americans with Disabilities Act,
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and the legal use or adaptability of the Premises and the compliance thereof to
all applicable laws and regulations enforced during the Sublease Term; provided,
however, that Sublandlord shall be responsible for and shall indemnify and hold
harmless Subtenant with respect to all such compliance of the Premises up to the
Commencement Date.
11. Alterations
-----------
Subtenant shall make no alterations, additions, installations or
improvements of any kind ("Alterations") to the Premises without the prior
written consent of Landlord (in accordance with the Master Lease) and
Sublandlord, in its reasonable discretion. Any Alterations made to the Premises
with consent shall be at the sole cost and expense of Subtenant, and Subtenant
agrees to restore the Premises to their condition as of the Commencement Date at
its sole cost if so requested by Sublandlord or Landlord at the end of the
Sublease Term. Any and all approved Alterations shall be made in conformity with
the applicable terms and conditions of the Master Lease. Subtenant shall submit
its proposed Alterations, simultaneously to Landlord and Sublandlord for
consent, subject to the provisions of the Master Lease.
12. Assignment and Subletting
-------------------------
A. Consent Required
----------------
Subtenant shall not voluntarily or by operation of law assign, transfer,
mortgage, sublet, or otherwise transfer or encumber all or any part of
Subtenant's interest in this Sublease or the Premises without the prior written
consent of the Landlord (in accordance with the apple provisions of the Master
Lease) and Sublandlord, in Sublandlord's reasonable discretion. Any actual or
attempted assignment, transfer, mortgage, encumbrance or subletting without such
consent shall be void, and shall constitute a breach of this Sublease, subject
to the applicable notice and cure provisions of the Master Lease.
B. No Release
----------
Regardless of any consent by Sublandlord, no subletting or assignment shall
release Subtenant of Subtenant's obligation, or alter the primary liability of
Subtenant to pay the Base Rental, Additional Rental, and to perform all other
obligations to be performed by Subtenant hereunder. The acceptance of rent by
Sublandlord from any other person shall not be deemed a waiver by Sublandlord of
any provision hereof. Consent to one assignment or subletting shall not be
deemed consent to any subsequent assignment or subletting. In the event of
default by any assignee of Subtenant or any successor of Subtenant in the
performance of any of the terms hereof, Sublandlord may proceed directly against
Subtenant without the necessity of exhausting remedies against said assignee or
such additional sublessee.
C. Fees
----
In the event Subtenant shall assign or sublet the Premises or request the
consent of Sublandlord to any assignment or subletting, or if Subtenant shall
request the consent of Sublandlord for any act that Subtenant proposes to do,
then Subtenant shall reimburse Sublandlord for any fees Sublandlord is required
to pay as tenant pursuant to the Master Lease, by reason of such act. Should
Sublandlord be required to pay any sums to Landlord to obtain Landlord's
approval of this Sublease, Subtenant shall not be required to reimburse
Sublandlord for any such sums.
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13. Consents and Approvals
----------------------
Sublandlord shall not be liable for any damages if Sublandlord withholds or
delays any consent or approval requested by Subtenant, and as to any consent or
approval which the Sublandlord has agreed in writing not to unreasonably
withhold or delay, Subtenant shall have only the remedy of specific performance
or injunction.
14. Indemnity
---------
Subtenant shall indemnify and hold harmless Sublandlord and the Landlord
from and against any and all claims arising from Subtenant's use of the
Premises, or from the conduct of Subtenant's business or from any activity, work
or thing done, permitted or allowed by Subtenant in or about the Premises or the
Project (as defined in the Lease), and shall further indemnify and hold harmless
the Sublandlord and the Landlord from and against any all claims arising from
any breach or default in the performance of any obligation on Subtenant's part
to be performed under the terms of this Sublease, or arising from any negligence
of Subtenant or any of Subtenant's agents, contractors, or employees, and from
and against all costs, attorneys' fees, expenses and liabilities incurred in the
defense of any such claim or any action or proceeding brought thereon. Subtenant
agrees that should any action or proceeding be brought against Sublandlord or
the Landlord by reason of any such claim, upon notice from Sublandlord or the
Landlord, Subtenant shall defend the same at Subtenant's expense by counsel
reasonably satisfactory to Sublandlord.
Subtenant, as a material part of the consideration to Sublandlord, hereby
assumes all risk of damage to property or injury to persons, in, upon or about
the Premises arising from Subtenant's use of the Premises, and Subtenant hereby
waives all claims in respect thereof against Sublandlord. Subtenant hereby
agrees that Sublandlord shall not be liable for injury to Subtenant's business
or any loss of income therefrom, or for damage to the goods, wares, merchandise
or other property of Subtenant, Subtenant's shareholders, employees, invitees,
customers or any other person in or about the Premises, nor shall Sublandlord be
liable for injury to any person including Subtenant's shareholders, employees,
agents or contractors, whether such damage or injury is caused by or results
from fire, steam, electricity, gas, water or rain, or from the breakage,
leakage, obstruction or other defects of pipes, sprinklers, wires, appliances,
plumbing, air conditioning or lighting fixtures, or from any other cause whether
the said damage or injury results from conditions arising upon the Premises or
upon portions of the Building, or from other sources or places, and regardless
of whether the cause of such damage or injury or the means of repairing the same
is inaccessible to Subtenant. Sublandlord shall not be liable for any damages
arising from any act, omission or neglect of the Landlord or any tenant of the
Building.
15. Insurance
---------
Sublandlord shall have no obligation to provide insurance or perform any
repair, replacement, or any other requirement imposed upon the Landlord as
landlord pursuant to the Master Lease in the event of damage to all of or any
part of the Building. Subtenant shall obtain and maintain insurance policies
identical to those required to be maintained by Sublandlord as tenant pursuant
to the Master Lease and Sublandlord and Landlord shall be named as additional
insureds. Subtenant acknowledges and agrees that the Landlord and Sublandlord
shall not be responsible or liable to Subtenant for any loss or damage at the
Premises.
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16. Estoppel Certificate
--------------------
A. Requirements
------------
Subtenant shall, at any time, upon not less than ten (10) days' prior
written notice from Sublandlord, execute, acknowledge and deliver to Sublandlord
a statement in writing (i) certifying that this Sublease is unmodified and in
full force and effect (or, if modified, stating the nature of such modification
and certifying that this Sublease, as so modified, is in full force and effect)
and the extent to which the rent and other charges are paid in advance, if any;
and (ii) acknowledging that there are not, to Subtenant's knowledge, any uncured
defaults on the part of Sublandlord hereunder, or specifying such defaults if
any are claimed. Any such statement may be conclusively relied upon by any
prospective assignee or mortgagees of the Premises.
B. Failure to Comply
-----------------
Subtenant's failure to provide such statement within such times shall be a
default by Subtenant under this Sublease, and shall be conclusive upon Subtenant
(i) that this Sublease is in full force and effect, without modification except
as may be represented by Sublandlord; (ii) that there are no uncured defaults in
the performance by Sublandlord or Landlord; and (iii) that not more than one
month's rent has been paid in advance.
17. Eminent Domain
--------------
In the event of any condemnation of the Premises, all awards and
compensation, or proceeds payable to Sublandlord pursuant to the Master Lease
shall be the property of Sublandlord. No part of any condemnation awards,
compensation or proceeds shall be payable to Subtenant.
18. Rules and Regulations
---------------------
Subtenant shall faithfully observe and comply with all rules and
regulations described in or annexed to the Master Lease, as amended from time to
time.
19. Tax on Tenant's Personal Property
---------------------------------
Subtenant shall pay all taxes levied or assessed upon Subtenant's personal
property and shall deliver satisfactory evidence of such payment to Sublandlord,
if requested.
20. Right to Additional Space
-------------------------
Subtenant acknowledges that it shall have no rights under this Sublease to
lease any other space in the Building.
21. Guaranty
--------
In order to induce Sublandlord to execute this Sublease, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned party identified as "Guarantor" on the signature
page of this Sublease agree to enter into and simultaneously with the execution
of this Sublease has entered into a Guaranty attached hereto as Exhibit "B".
-----------
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22. Arbitration
-----------
Any dispute arising out of this Sublease shall, at the option of either
party, be settled by arbitration. Within ten (10) days after either party shall
have requested arbitration in writing, the parties shall agree on an impartial
arbitrator, and failing agreement, such arbitrator shall be selected by the
American Arbitration Association at the request of either party. The arbitration
shall be conducted in accordance with the then current rules of commercial
arbitration of the American Arbitration Association, and judgment upon the award
granted by the arbitrator may be entered in any court having jurisdiction
thereof. Fees, costs and expenses of the arbitrator shall be borne by the party
against whom the arbitration shall be determined, or in such proportions as the
arbitrator shall designate.
23. Abatement of Rent
-----------------
Should Sublandlord receive an abatement of rent under the Master Lease,
such abatement shall be passed through and inure to the benefit of Subtenant.
24. Severability
------------
The invalidity of any provision of this Sublease as determined by a court
of competent jurisdiction shall in no way affect the validity of any other
provision hereof.
25. Time of Essence
---------------
Time is of the essence of this Sublease.
26. Captions
--------
Captions of Articles or subdivisions thereof are not a part hereof and are
intended for reference purposes.
27. Notices
-------
All notices or demands given or required to be given hereunder shall be in
writing and shall be sent by hand delivery, overnight courier, or by certified
or registered mail, return receipt requested, addressed to the parties'
addresses set forth below or to each other address as either party may specify
in writing in accordance with this notice provision. Any such notice so given
shall be deemed given and shall be effective on the day of its receipt by the
respective party. Sublandlord shall promptly forward copies of notices from
Landlord to Subtenant upon receipt.
PRIOR TO OCCUPANCY:
------------------
Sublandlord: Quality Diagnostic Services, Inc.
-----------
0000 Xxxxxxxxx Xxxx, X.X., Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: W. Xxxxxxx Xxxxxx
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with a copy to:
Xxxxxx Xxxxxxx Xxxxx & Xxxxxxxxxxx, L.L.P.
First Union Plaza, Suite 1400
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxx, IV
Subtenant: Card Guard USA, Inc.
---------
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxxx
With a copy to:
Xxxxxx & Xxxxxx, L.L.P.
2700 International Tower
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxxx
AFTER OCCUPANCY:
---------------
Sublandlord: Quality Diagnostic Services, Inc.
-----------
0000 Xxxxxxxxx Xxxx, X.X., Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: W. Xxxxxxx Xxxxxx
with a copy to:
Xxxxxx Xxxxxxx Xxxxx & Scarborough, L.L.P.
First Union Plaza, Suite 1400
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxx, IV
Subtenant: Card Guard USA, Inc.
---------
0000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxx
With a copy to:
Xxxxxx & Xxxxxx, L.L.P.
2700 International Tower
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxxxxxxxx
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28. Brokers
-------
Subtenant warrants and represents to Sublandlord that it has dealt with no
broker or real estate agent or made no agreement or created any liability with
respect to this Sublease and/or the Premises or in connection with the payment
of brokerage or other commissions to anyone, and Subtenant hereby agrees to
indemnify, defend and hold Sublandlord harmless from and against all liability,
cost, or expense arising out of the claims of any other broker or real estate
agent claiming by, through or under Subtenant for a commission in connection
with this Sublease and/or the transaction contemplated by this Sublease.
Sublandlord warrants and represents to Subtenant that it has dealt with no
broker or real estate agent or made no agreement or created any liability with
respect to this Sublease and/or the Premises or in connection with the payment
of brokerage or other commissions to anyone, and Sublandlord hereby agrees to
indemnify, defend and hold Subtenant harmless from and against all liability,
cost, or expense rising out of the claims of any other broker or real estate
agent claiming by, through or under Sublandlord for a commission in connection
with this Sublease and/or the transaction contemplated by this Sublease.
29. Consents Required
-----------------
This Sublease is expressly conditioned upon the written consent of the
Landlord. Upon execution of this Sublease, Sublandlord will promptly request
such written consent. If such consent has not been received by Sublandlord
within (30) days from the date of hereof, then, at the option of either party,
upon written notice to the other at anytime after such 30-day period, this
Sublease shall be deemed canceled, null and void and of no further force and
effect, and neither party shall have any claim of any kind or nature against the
other provided such notice is sent before the Landlord's written consent is
delivered to Sublandlord. In no event shall Sublandlord be obligated to deliver
possession of the Premises to Subtenant until the date upon which Sublandlord
notifies Subtenant that it has received the written consent of the Landlord;
however, there shall be an equitable abatement of rent until delivery of
possession of the Premises to Subtenant. Subtenant shall have no liability if
this Sublease is terminated due to such lack of consent.
30. Condition of Premises on Termination
------------------------------------
Upon the expiration or other termination of the Sublease Term, Subtenant
covenants and agrees that it shall quit and surrender the Premises in the
condition existing as of the Commencement Date, shall remove all of Subtenant's
personal property therefrom (except such items, including, without limitation,
such fixtures, equipment, improvements and Alterations, which are required to
remain a part of the Premises pursuant to the Master Lease), and shall make any
repairs or restorations required by reason of each removal to put the Premises
in such condition.
31. Waivers
-------
No waiver by Sublandlord of any provision hereof shall be deemed a waiver
of any provision hereof or of any subsequent breach by Subtenant of the same or
any provision. The consent or approval by Sublandlord of any act shall not be
deemed to render unnecessary obtaining subsequent consent or approval from
Sublandlord or any subsequent act by Subtenant. The acceptance of rent hereunder
by Sublandlord shall not be a waiver of any preceding breach by Subtenant of any
provision hereof, regardless of knowledge by Sublandlord of such preceding
breach at the time of acceptance of such rent.
32. Recording
---------
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Subtenant shall not record this Sublease, and such recordation shall, at
the option of Sublandlord, constitute a non-curable default of Subtenant
hereunder.
33. Holding Over
------------
Subtenant shall have no right to hold over at the Premises beyond the
Expiration Date or earlier termination of this Sublease. If Subtenant remains in
possession after the expiration or earlier termination of the Sublease Term
without the express written consent of Sublandlord, such occupancy shall, at the
Sublandlord's option, be deemed an act of trespass. In the event of any such
holdover, Subtenant shall pay as liquidated damages (and not as rent) all
amounts payable by Sublandlord to Landlord incurred as a result of such
holdover, including but not limited to all amounts payable by Sublandlord to the
Landlord pursuant to the Master Lease as a result of such continued occupancy by
Subtenant. Nothing herein shall be deemed to limit Sublandlord's rights to
forcibly evict Subtenant, or any other rights or remedies available to
Sublandlord. No receipt of money by Sublandlord form Subtenant after expiration
or termination of this Sublease shall reinstate or extend this Sublease.
34. Cumulative Remedies
-------------------
No remedy or election hereunder shall be deemed exclusive but shall,
wherever possible, be cumulative with all other remedies at law or in equity.
35. Covenants and Conditions
------------------------
Each provision of this Sublease performable by Subtenant shall be deemed
both a covenant and a condition.
36. Choice of Law
-------------
This Sublease shall be governed by the laws of the State of Georgia without
regard to conflicts of laws.
37. Attorneys' Fees
---------------
In the event Sublandlord, without any fault on its part, is a party to any
proceeding, including litigation, commenced by or against Subtenant or by or
against any parties in possession of the Premises or any part thereof claiming
under Subtenant, Subtenant shall pay to Sublandlord all costs, including,
without limitation, reasonable attorneys' fees incurred by or imposed by or upon
Sublandlord in connection with such proceeding, and the costs of enforcement of
this Sublease against Subtenant.
38. Sublandlord's Access
--------------------
Sublandlord and its agents shall have the right to enter the Premises at
reasonable times, upon reasonable notice to Subtenant, for the purpose of
inspecting the Premises and showing the Premises to prospective assignees,
lenders or lessees, all without undue interruption to Subtenant's business. In
addition, Sublandlord shall have the right to enter the Premises to perform such
actions as are required of it as tenant pursuant to the Master Lease. Subject to
the above, and provided Subtenant is not in default hereunder (subject to any
applicable notice and cure period under the Master Lease) or under the Master
Lease, Sublandlord covenants that Subtenant shall have the right to possession
and quiet enjoyment of the Premises during the term of this Sublease.
Sublandlord shall take no action or fail to take a required action
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which would cause a default under the Master Lease and shall indemnify and hold
harmless Subtenant from all loss, cost, damage, action, liability and expenses
incurred by Subtenant as a result thereof.
39. Security Deposit
----------------
Upon the execution of this Sublease, Subtenant shall pay to Sublandlord the
sum of $0.00 as security for Subtenant's performance of its obligations under
----
this Sublease. Upon termination of this Sublease, provided Subtenant is not then
in default of any of the terms hereof, the security deposit shall be returned to
Subtenant, without interest, less any amounts due Sublandlord upon termination.
40. Corporate Authority
-------------------
Each individual executing this Sublease on behalf of Subtenant or
Sublandlord represents and warrants that he is duly authorized to execute and
deliver this Sublease on behalf of such party.
41. Amendments
----------
This Sublease may be modified only in writing, signed by the parties in
interest at the time of the modification.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals as of
the day and year first above written.
[SIGNATURES CONTINUED ON NEXT PAGE]
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Signed, sealed and delivered SUBLANDLORD:
this 30 day of March, -----------
1998, in the presence of:
QUALITY DIAGNOSTIC SERVICES, INC.,
/s/ W. Xxxxxxx Xxxxxx a Georgia corporation
----------------------------------
Witness By: /s/ Xxxxx Xxxxxxx
-------------------------------
/s/ Xxxxxxx X. Xxxxxxx Title: President
---------------------------------- ----------------------------
Notary Public
My Commission Expires [CORPORATE SEAL]
----------------------------------
[NOTARIAL SEAL]
SUBTENANT:
---------
Signed, sealed and delivered
this _____ day of March, CARD GUARD, USA, INC.,
1998, in the presence of: a Georgia corporation
---------------------------------- By: /s/ Xxxxxxx Xxxxx
Witness -------------------------------
Title: Executive Vice President
----------------------------
----------------------------------
Notary Public
[CORPORATE SEAL]
My Commission Expires
----------------------------------
[NOTARIAL SEAL]
GUARANTOR:
Signed, sealed and delivered ---------
this _____ day of March,
1998, in the presence of: CARD GUARD SCIENTIFIC SURVIVAL, LTD
---------------------------------- By: /s/ Xxxxxxx Xxxxx
Witness -------------------------------
Print Name: Xxxxxxx Xxxxx
-----------------------
---------------------------------- Title: Executive Vice President
Notary Public ----------------------------
My Commission Expires
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[NOTARIAL SEAL]
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LANDLORD CONSENT TO SUBLEASE
The undersigned Landlord does hereby consent to the subleasing of the
Premises by Sublandlord to Subtenant pursuant to and in accordance with the
provisions of the within and foregoing Sublease, subject to the following terms
conditions:
1. Landlord's consent shall not in any manner release Sublandlord
from, or relieve Sublandlord of, any of the terms, covenants, conditions,
agreements, requirements, provisions or restrictions set forth in the
Lease, or from the full and complete payment and performance of all duties,
obligations, liabilities and responsibilities of Sublandlord under the
Lease, whenever arising, for which Sublandlord shall remain liable and
responsible in all respects, as principal and not as surety.
2. Sublandlord and Subtenant acknowledge and agree that the Sublease
is, and shall at all times be and remain, in all respects, subject and
subordinate to the Lease and all of the terms, covenants, conditions,
agreements, requirements, provisions or restrictions set forth in the
Lease.
3. Upon a default by Sublandlord in the payment of any base rental,
additional rent or other amounts due under the Lease, or upon any other
default by Sublandlord under the Lease, Landlord shall have, in addition to
its other rights and remedies under the Lease, the right to collect and
receive from Subtenant, upon written demand from Landlord to Sublandlord
and Subtenant at the addresses for notices set forth in the Sublease, any
rental due and payable under the Sublease by Subtenant to Sublandlord. Any
such sums so collected and received shall be applied by Landlord to any
amounts due from Sublandlord under the Lease in such order as Landlord
elects and in furtherance of the foregoing. Sublandlord hereby assigns to
Landlord the rent and other sums due from Subtenant and hereby authorizes
and directs Subtenant to pay such rent directly to Landlord; provided,
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however, that, until the occurrence of a default under the Lease,
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Sublandlord shall have the license to continue collecting such rent from
Subtenant; and, provided further, however, it is agreed that for all
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purposes Landlord is not a party to the Sublease. Landlord shall not have
the right to demand payment from Subtenant of any amounts paid by Subtenant
to Sublandlord prior to receipt of notice from Landlord as provided herein.
4. Upon default by Sublandlord under the Lease and the subsequent
termination of the Lease by Landlord, at the option of Landlord, Subtenant
shall be bound under the terms and conditions of the Sublease with the same
force and effect as if Landlord were the original sublessor, and Subtenant
agrees to execute any attornment agreement requested by Landlord not in
conflict herewith.
5. The consent by Landlord to the Sublease shall not be deemed an
approval of any future assignment of the Lease or the Sublease, or of any
subsequent subletting of the Premises or any portion thereof; and any such
future assignment or subletting shall be made subject to Landlord's prior
written consent, which consent may be withheld in Landlord's sole
discretion, and any such assignment or subletting without the written
consent of Landlord shall be null and void. No assignment of the Lease or
the Sublease, and no subletting of the Premises or any portion thereof,
shall in any manner release Sublandlord from, or relieve Sublandlord of,
any of the terms, covenants, conditions, agreements, requirements,
provisions or restrictions set forth in the Lease, or from the full and
complete payment and performance of all duties, obligations, liabilities
and responsibilities of Sublandlord under the Lease, whenever arising,
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for which Sublandlord shall remain liable and responsible in all respects,
as principal and not as surety.
6. By consenting to the Sublease, Landlord in no way agrees to
perform or to be obligated to perform any services for the benefit of
Subtenant under the Sublease, but Landlord shall continue to provide
services to the Premises (as part of the Premises) in accordance with the
terms and conditions of the Lease. Subtenant shall have no rights or claims
against Landlord, but shall instead look solely to Sublandlord for any such
claims, except as may arise after Landlord exercises its rights under
Section 4 hereof.
7. This Consent shall not be deemed to create any contractual or
other relationship between Landlord and Subtenant.
8. Sublandlord and Subtenant agree by their acceptance of this
Consent that the Sublease shall not be amended or modified without the
prior written consent of Landlord, and that the Lease remains in full force
and effect without modification and is binding on Sublandlord, as lessee
thereunder, and Sublandlord hereby ratifies and affirms the same. This
Consent and Agreement does not constitute recognition of any deviations,
alteration or substitutions from the terms and conditions of the Lease.
IN WITNESS WHEREOF, the undersigned Landlord has executed this Consent
under seal this _____ day of April, 1998.
LANDLORD:
PAVILION PARTNERS, L.P., a Georgia limited
partnership
By: Bentley Investments, Inc., a Georgia
corporation, its sole general partner
By: /s/ Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxxx X. Xxxxxx
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Title: President
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(CORPORATE SEAL)
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EXHIBIT "A"
MASTER LEASE
(See Exhibit 10.30 to Registration Statement)
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EXHIBIT "B"
STATE OF GEORGIA
COUNTY OF XXXXXX
GUARANTY
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KNOWN ALL MEN BY THESE PRESENTS:
In consideration of the subletting by Quality Diagnostic Services, Inc.
("Sublandlord") to Card Guard USA, Inc. ("Subtenant") pursuant to Sublease
Agreement dated March ____, 1998 (the "Sublease") of the premises described
therein, the delivery of which Sublease is conditioned upon the execution and
delivery of this guaranty ("Guaranty"), and the payment of One Dollar ($1.00) to
the undersigned by Sublandlord, the receipt and sufficiency of which are hereby
acknowledged by the undersigned, the undersigned (hereinafter collectively
called the "Guarantor") does hereby unconditionally guarantee the full, prompt
and complete performance by Subtenant of all of the terms, covenants, conditions
and agreements contained in the Sublease on the part of Subtenant to be
performed, including specifically, without limitation, the obligation to pay all
rents and any other charges or obligations therein set forth, together with any
and all renewal or renewals, extension or extensions, modification or
modifications thereof, and substitution or substitutions therefor (all such
obligations being hereinafter called the "Obligations").
Guarantor waives presentment, demand, dishonor, notice of dishonor,
protest, and all other notices whatsoever, including, without limitation,
notices of acceptance hereof, of the existence or creation of the Obligations,
and of all defaults, disputes or controversies with Subtenant, and of the
settlement, compromise or adjustments thereof. Guarantor agrees that Sublandlord
shall have full authority, without obtaining the consent of, giving notice to,
or affecting the liability of Guarantor, to make changes of terms, to extend
time to pay, to release the whole or any part of the Obligations, to settle or
compound differences for less than the full amount owing under the Lease, to
accept notes, trade acceptances or any other form of obligation for the
Obligations, to make arrangements or settlements in or out of court in the case
of receivership, liquidation, readjustment, bankruptcy, reorganization,
arrangement or an assignment for the benefit of creditors and to do anything,
whether or not herein specified, which may be done or waived by or between
Sublandlord and Subtenant. The making of such arrangements, settlements,
compromises, adjustments, extensions of time and so forth shall not diminish,
discharge, modify, reduce, extinguish or otherwise affect the liability of
Guarantor hereunder for the full amount owing under the Sublease. Guarantor
further agrees that no act or omission on the part of Sublandlord shall in any
way affect, impede or impair this Guaranty.
This Guaranty shall be enforceable without Sublandlord having (i) to
proceed against Subtenant (any right to require Sublandlord to take action
against Subtenant as required by O.C.G.A. (S) 10-7-24 being hereby expressly
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waived) or against any security for any payments due under the Lease, or (ii) to
exercise any of Sublandlord's remedies under the Sublease, and shall be
effective regardless of the solvency or insolvency of Subtenant, any
reorganization, merger or consolidation of Subtenant, any change in the
composition, nature, personnel or location of Subtenant, or any bankruptcy,
receivership, liquidation, reorganization or other proceeding involving
Subtenant.
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This Guaranty shall be binding upon and enforceable against each person and
entity executing this Guaranty and upon the respective heirs, legal
representatives, successors and assigns of each such person and entity. The
liability of each person and entity executing this Guaranty and the heirs, legal
representatives, successors and assigns of each such entity and person hereunder
is joint and several, primary and unconditional, and shall not be subject to any
claim of offset, counterclaim or defense of Subtenant.
This Guaranty shall be irrevocable, absolute and unconditional and shall
remain in full force and effect as to Guarantor until such time as all of the
Obligations shall have been paid or satisfied in full. No delay or failure on
the part of Sublandlord in the exercise of any right or remedy shall operate as
a waiver thereof, and no single or partial exercise by Sublandlord of any right
or remedy shall preclude other or further exercise thereof or the exercise of
any other right or remedy. Guarantor agrees that this Guaranty shall not be
affected by reason of assertion by Sublandlord against Subtenant of any rights
or remedies reserved to Sublandlord in the Sublease, or by reason of any summary
or other proceedings against Subtenant, or by the amendment or modification of
the Sublease with or without notice to, or consent of, the Guarantor.
This Guaranty shall remain in full force and effect, and Guarantor shall
continue to be liable for the payment of all amounts owing under the Sublease in
accordance with the original terms of the documents and instruments evidencing
the same, notwithstanding the commencement of any bankruptcy, reorganization or
other debtor relief proceeding by or against Subtenant, and notwithstanding any
modification, discharge or extension of the Obligations, any modification or
amendment of any document or instrument evidencing any of the Obligations, any
stay of the exercise by Sublandlord of any of its rights and remedies against
Subtenant with respect to any of the Obligations, or any cure of any default by
Subtenant under any document or instrument evidencing any of the Obligations,
which may be effected in connection with any such proceeding, whether permanent
or temporary, and notwithstanding any assent thereto by Sublandlord.
Sublandlord may, without notice of any kind, sell, assign or transfer the
Sublease, and in such event each and every immediate and successive assignee,
transferee or holder of the Sublease shall have the right to enforce this
Guaranty, by suit or otherwise, for the benefit of such assignee, transferee or
holder, as fully as if such person were herein by name specifically give such
rights, powers and benefits, but Sublandlord shall have an unimpaired right to
enforce this Guaranty for its benefit as to so much of the Obligations as
Sublandlord has not sold, assigned or transferred.
This Guaranty has been made and delivered in the State of Georgia and shall
be governed by, construed under and interpreted and enforced in accordance with
the laws of the State of Georgia. Wherever possible, each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
be invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
Guarantor hereby submits to personal jurisdiction in the State of Georgia
for the enforcement of this Guaranty and waives any and all personal rights
under the laws of the State of Georgia or the United States to object to
jurisdiction within the State of Georgia for the purposes of litigation to
enforce this Guaranty. In the event that such litigation is commenced, Guarantor
agrees that service of process may be made, and personal jurisdiction over
Guarantor obtained, by the serving of a copy of the summons and complaint upon
Subtenant, as agent for Guarantor, at 0000 Xxxx Xxxxx Xxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx, and with a copy to its counsel, Xxxxxx & Xxxxxx, L.L.P. at 2700
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International Tower, 000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx 00000,
Attention: Xxxxxxx Xxxxxxxxxx. Nothing contained herein shall prevent
Sublandlord from bringing any action or exercising any rights against any
security given to Sublandlord by Subtenant or Guarantor, or against Guarantor
personally, or against any property of Guarantor, within any other state.
Commencement of any such action or proceeding in any other state shall not
constitute a waiver of the agreement that the laws of the State of Georgia shall
govern the rights and obligations of Guarantor and Sublandlord hereunder or of
the submission made by Guarantor to personal jurisdiction within the State of
Georgia. The aforesaid means of obtaining personal jurisdiction and perfecting
service of process are not intended to be exclusive but are cumulative and in
addition to all other means of obtaining personal jurisdiction and perfecting
service of process now or hereafter provided by the laws of the State of
Georgia.
Guarantor agrees that Guarantor shall have no right to recover against
Subtenant by way of subrogation to the rights of Sublandlord on account of any
payment by Guarantor to Sublandlord hereunder until all of the Obligations have
been paid and satisfied in full, and Guarantor hereby subordinates any such
rights of subrogation to such extent.
If Guarantor is a corporation or other business entity, Guarantor and the
persons executing this Guaranty as officers or representatives of the Guarantor
represent that Guarantor has full corporate authority to execute this Guaranty
and that the officers executing this Guaranty are duly authorized to execute
this Guaranty on behalf of the Guarantor, and that there is no provision in
Guarantor's charter, bylaws or other governing document that in any way
conflicts with or prevents the execution, delivery or performance of this
Guaranty by Guarantor. Guarantor further represents that there is no provision
of any other agreement by which Guarantor is bound that in any way conflicts
with or prevents the execution, delivery or performance of this Guaranty by
Guarantor.
IN WITNESS WHEREOF, Guarantor has executed, sealed and delivered this
Guaranty, all this ______ day of March, 1998.
Signed, sealed and delivered this _____ day CARD GUARD SCIENTIFIC SURVIVAL, LTD
of March, 1998, in the presence of:
By: /s/ Xxxxxxx Xxxxx
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Witness Print Name: Xxxxxxx Xxxxx
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Notary Public Title: Executive Vice President
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My Commission Expires
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[NOTARIAL SEAL]
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