AGREEMENT OF SUBLEASE
Agreement of Sublease ("Sublease") made this 1st day of August, 1999
between NETsilicon, Inc., having an office at 000 Xxxxxxx Xxxx Xxxx, Xxxxxxx, XX
("Sublessor") and Osicom Technologies, Inc., having an office at 0000 00xx
Xxxxxx, Xxxxx Xxxxxx, XX ("Sublessee").
W I T N E S S E T H:
WHEREAS, Sublessor represents and warrants that it has leased 36,000
square feet of the building located at 000 Xxxxxxx Xxxx Xxxx, Xxxxxxx, XX
("Premises") pursuant to a Lease dated July 1991 and Amendment to Commercial
Lease dated August 8, 1997 between Sublessor, as tenant, and Xxxxx Bros.
Construction, Inc. as lessor ("Lessor"), a copy of which lease as amended
("Lease") has been reviewed by Sublessee and is annexed hereto as Exhibit "A";
and
WHEREAS, Sublessee desires to sublease from Sublessor 6,000 square feet
of space within the Premises ("Subleased Premises"); and
NOW, THEREFORE, in consideration of the Premises and other good and
valuable consideration, it is hereby mutually covenanted and agreed as follows:
1. Term.
(a) Sublessor hereby subleases the Subleased Premises to
Sublessee and Sublessee hereby subleases the Subleased Premises from Sublessor
upon and subject to the terms, covenants, rentals
and conditions herein set forth for a term commencing on August 1, 1998 and
expiring on August 1, 1999 provided, however, if the Lease shall expire prior
to said date for any reason then this Sublease shall expire on the date that the
Lease shall expire.
(b) Sublessor hereby grants to Sublessee an option to extend the
term of this Sublease for successive one year terms as long as the Lease shall
be in effect. The option must be exercised in writing delivered to Sublessor by
certified mail, return receipt requested, not less than one month before the
expiration of the term of this Sublease. Time is of the essence with respect to
this requirement. The exercise of the option is conditional in that it will be
deemed waived in the event that Sublessee defaults in the performance of any
Lease obligation between the exercise of the option and the commencement of the
extended term. All of the terms and conditions of the Lease shall apply during
the extended term or terms.
2. Rent.
(a) The annual minimum rent reserved under this Sublease for the
term hereof shall be in the amount of Eighty-Eight Thousand ($88,000.00) Dollars
which shall be due and payable on October 1, 1998, January 1, 1999, April 1,
1999, and July 1, 1999 in installments of Twenty-Two Thousand ($22,000.00)
Dollars each.
(b) The parties acknowledge that the Sublessor shall be
responsible, at its sole cost and expense, to pay all sums due and payable by
Tenant to Lessor under the Lease including but not limited to annual minimum
rent, real estate taxes, utilities, common area maintenance, insurance and
common water and sewer. Sublessee agrees at its sole cost and expense to have
all utilities which are
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separately metered to the Subleased Premises placed in its own name and to
timely pay all bills rendered by such utility company.
(c) All annual minimum rent, additional rent and other charges
shall be paid to Sublessor at its office first above written or such other place
as Sublessor shall designate.
3. Use. Sublessee shall use and occupy the Subleased Premises for
general office purposes.
4. Incorporation of Lease and Terms.
(a) Except as herein otherwise expressly provided, all of the
terms of the Lease as they pertain to the Premises are hereby incorporated into
and made a part of this Sublease as if stated at length herein, and Sublessee
accepts this Sublease subject to, and hereby agrees to be bound by all of the
terms, covenants, conditions, provisions and agreements contained in the Lease
with respect to the Premises to be performed or observed by Sublessor
thereunder. The parties hereto agree that subject to the provisions of this
Sublease, wherever the words "Demised Premises" or words of similar import
appear in the Lease, the same shall be deemed to mean the Subleased Premises and
wherever the words "Lessor" and "Lessee" appear in the Lease, the words shall be
deemed to refer to Sublessor and Sublessee respectively only with respect to the
Subleased Premises, so that, subject to the provisions of this Sublease,
Sublessor shall have the rights and powers of Lessor under the Lease only with
respect to the Leased Premises, and Sublessee shall have and does hereby agree
to be bound by and accepts all the rights, powers, duties and obligations of the
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Lessee under the Lease, provided, however, that notwithstanding the foregoing,
Sublessor shall have no obligation to perform or furnish any of the work,
services, repairs or maintenance undertaken to be made by Lessor under the
Lease, or any other term, covenant or condition required to be performed by
Lessor under the Lease. Sublessee covenants and agrees that it shall do nothing
which shall have the effect of creating a breach, of any of the terms, covenants
and conditions of the Lease. To the extent applicable to the Subleased Premises,
Sublessee shall have the benefit of each and every covenant and agreement made
by Lessor to Sublessor under the Lease. In the event that Lessor shall fail or
refuse to comply with any of the respective provisions of the Lease, Sublessor
shall have no liability on account of any such failure or refusal, provided that
the Sublessee shall have the right to exercise in the name of the Sublessor all
the rights to enforce compliance on the part of Lessor as are available to the
Sublessor with respect to the Premises. Sublessor hereby agrees to cooperate
with and execute, all at Sublessee's expense, all instruments and supply
information reasonably required by Sublessee in order to enforce such
compliance. Sublessee hereby agrees to indemnify and hold Sublessor harmless of
and from any and all damages, liabilities, obligations, costs, claims, losses,
demands, expenses and injuries, including reasonable attorneys' fees and
expenses which may be incurred by Sublessor in or as a result of such
cooperation and execution. In amplification and not in limitation of the
foregoing and without any allowance to Sublessee or other reduction or
adjustment of rent, Sublessor shall not be responsible for furnishing
electrical, heating, air conditioning, cleaning, window washing, or other
services, nor for any maintenance or repairs in
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or to the Subleased Premises or any of the facilities or equipment
therein.
(b) Sublessor, as Tenant, covenants and agrees to remain liable
as a primary obligor for the due performance of all of the covenants,
agreements, terms, provisions and conditions of the Lease on the part of the
Tenant to be performed or observed.
5. Delivery of Notice. Sublessor shall promptly transmit to
Lessor any notice or demands received from Sublessee and shall promptly transmit
to Sublessee any notice or demands received from Lessor. Sublessee shall
promptly transmit to Sublessor any notice or demands received from Lessor or any
other party having an interest to which this Sublease is subordinate.
6. Time for Notices. Solely for the purpose of this Sublease,
wherever in the Lease a time is specified for the giving of any notice or the
making of any demand by Lessee thereunder, such time is hereby changed (for the
purpose of this Sublease only) by adding five (5) days thereto, and wherever in
the Lease a time is specified for the giving of any notice or the making of any
demand by the Lessor thereunder, such time is hereby changed (for the purpose of
this Sublease only) by subtracting five (5) days therefrom. Wherever in the
Lease a time is specified within which the Lessee thereunder must give notice or
make a demand following an event, or within which Lessee must respond to any
notice, request or demand previously given or made by Lessor thereunder, or to
comply with an obligation on Lessee's part thereunder, such time is hereby
changed (for the purpose of this Sublease only) by subtracting five (5)
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days therefrom. Wherever in the Lease a time is specified within which Lessor
thereunder must give notice or make a demand following an event, or within which
Lessee must respond to any notice, request or demand previously given or made by
Lessee thereunder, or to comply with any obligation on Lessor's part thereunder,
such time is hereby changed (for the purpose of this Sublease only) by adding
five (5) days thereto. It is the purpose and intent of the foregoing provisions
to provide Sublessor with time within which to transmit to Lessor any notice or
demands received from the Sublessee and to transmit to Sublessee any notice or
demands received from the Lessor.
7. Required Consent of Lessor. Sublessee agrees that in any
case where the provisions of this Sublease require the consent or approval of
Sublessor prior to the taking of any action, it shall be a condition precedent
to the taking of such action that the prior consent or approval of Lessor shall
have been obtained if Lessor's consent must be obtained under the Lease in such
cases. In the event Lessor's consent is so obtained, Sublessor agrees that its
consent shall not be unreasonably withheld or delayed. Sublessee agrees that
Sublessor shall not have any duty or responsibility with respect to obtaining
the consent or approval of Lessor when the same is required under the terms of
the Lease, other than the transmission by Sublessor to Lessor of Sublessee's
request for such consent or approval.
8. Cure of Breach. Sublessee shall not do or suffer or permit
anything to be done which would cause the Lease to be terminated or forfeited by
virtue of any rights of termination or for-
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feiture reserved or vested in Lessor. If Sublessor makes any expenditures or
incurs any obligation for the payment of money in connection therewith, such
sums paid or obligations incurred shall be deemed to be additional rent
hereunder and shall be paid to it by Sublessee on demand.
9. Brokers. The parties hereto represent and warrant to each
other and to Lessor that they have not dealt with any broker in connection with
this Sublease.
10. Assignment and Subletting. Sublessee shall not assign,
mortgage or encumber this Sublease, nor underlet, nor suffer or permit the
Subleased Premises or any part thereof to be used by others except with the
prior written consent of Sublessor. In no event shall any assignment or
subletting consented to by Sublessor relieve Sublessee of its primary liability
and responsibility to Sublessor under this Sublease or to Lessor under the Lease
in the absence of any express written agreement by Sublessor or Lessor, as the
case may be, to that effect.
11. Condemnation and Casualty. In the event of any taking by
eminent domain or damage by fire or other casualty to the Subleased Premises
thereby rendering the Subleased Premises wholly or in part untenantable,
Sublessee shall acquiesce in and be bound by any action taken by or agreement
entered into between Lessor and Sublessor with respect thereto. Notwithstanding
the foregoing, Sublessor agrees to act reasonably and in good faith taking into
account Sublessee's interest in the Subleased Premises.
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12. Security Deposit. Sublessee has deposited with Sublessor the sum
of Five Thousand ($5,000.00) Dollars 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 of any of
the terms, provisions and conditions of this Sublease including, but not limited
to, the payment of the annual minimum rent and/or additional rent or charges,
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 installment of annual
minimum rent and/or additional rent or charges 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 of any of the
terms, covenants and conditions of this Sublease; including, but not limited to,
any damages or deficiency in the reletting of the Subleased Premises, whether
such damages or deficiency accrue before or after summary dispossess proceedings
or other re-entry by Sublessor. In the event that Sublessee shall fully and
faithfully comply with all of the terms, provisions, covenants and conditions of
this Sublease, the security deposit without interest shall be returned to
Sublessee within thirty (30) days after the date fixed as the expiration of this
Sublease.
13. Notices. All notices or demands under this Sublease shall be in
writing and shall be sent by registered or certified mail, return receipt
requested, to Sublessor at its address set forth above, and to Sublessee at its
address first above written prior to the commencement of the term and thereafter
to Sublessee at the address for the Subleased Premises, or such other address or
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person as either of the parties may designate by written notice.
14. Sublessor Representations. Sublessor represents to Sublessee that
(i) Exhibit "A" attached hereto constitutes the Lease in its entirety.
15. Subleased Premises Acknowledged "As Is". Sublessee acknowledges
that it has inspected the Subleased Premises and the improvements therein, or
has caused an inspection thereof to be made, and is fully familiar and satisfied
therewith and no representations have been made or responsibility assumed by
Sublessor as to the condition, value or suitability of the Subleased Premises or
any improvements thereon. Sublessee agrees that Sublessor shall not be required
to do any work to make the Subleased Premises ready for occupancy by Sublessee.
16. Alterations. Sublessee covenants at all times during the term of
this Sublease not to make any alterations, improvements or additions to the
Subleased Premises of any nature whatsoever without the prior written consent of
Sublessor.
17. Insurance. Sublessee agrees to name the Sublessor as an
additional insured on insurance policies under which the Lessor is required to
be named as an additional insured as set forth in the Lease. Any indemnity
required to be given by Sublessee pursuant to any Article of the Lease as
incorporated herein shall be given to both the Sublessor and Lessor.
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18. Sublessor's Liability for Loss of Property. Sublessor shall not
be liable in any way for any loss of property owned by Sublessee, or anyone
claiming by, through or in connection with Sublessee from any cause whatsoever,
including but not limited to, theft or burglary from the Subleased Premises and
Sublessee covenants and agrees, on behalf of itself and anyone who may make
claim by, through or in connection with Sublessee, to make no claim for any such
loss at any time.
19. Sublessor's Personal Liability. There shall be absolutely no
personal liability on the part of the Sublessor, its successors or assigns with
respect to any of the terms, covenants and conditions of this Sublease and
Sublessee shall take into consideration the Sublessor's interest in the
Subleased Premises for the satisfaction of each and every remedy of Sublessee in
the event of any breach by Sublessor of any of the terms, covenants and
conditions of this Sublease to be performed by Sublessor. In such event, such
exculpation of liability shall be absolute and without any exceptions
whatsoever.
20. Termination.
(a) Upon the expiration or other termination of the term of this
Sublease, Sublessee covenants to quit and surrender to Sublessor the Subleased
Premises, broom clean, in good order and condition, ordinary wear and tear
excepted, and at Sublessee's expense to remove all property of Sublessee. Any
property not so removed shall be deemed to have been abandoned by Sublessee and
may be retained or disposed of at Sublessee's expense by Sublessor, as Sublessor
shall desire. If the last day of the term of this Sublease
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falls on Sunday, the term of this Sublease shall expire on the business day
immediately preceding. Sublessee's obligation to observe or perform this
covenant shall survive the expiration or earlier termination of the term of this
Sublease. Immediately upon the failure of Sublessee to perform any covenant of
this Paragraph 20, Sublessor may, upon notice to Sublessee, do so and shall be
entitled to receive from Sublessee as liquidated damages the then cost of
performance of such covenant, such damages to be paid in addition to and
separate and independently from damages accruing by reason of any other covenant
of this Sublease.
(b) The terms and conditions of Paragraph 20(a) shall be void
and not of any force and effect in the event Lessor and Sublessee (prior to the
expiration of this Sublease) enter into a direct lease for the continued
occupancy of the Subleased Premises by Sublessee upon expiration of the term of
the Sublease. In such event, Sublessor shall not be responsible for the
condition of the Subleased Premises at the expiration of this Sublease.
21. Lessor Consent. The consent of the Lessor to Sublease is set
forth in the agreement between the parties of even date ("Lessor's Consent"), a
copy of which is attached hereto as Exhibit "B".
IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument the day and year first above written.
ATTEST: OSICOM TECHNOLOGIES, INC., Sublessor
By: /s/ Xxxxxxxxxxx X. Xxx
_______________________ _______________________
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ATTEST: NET SILICON, INC., Sublessee
By: /s/ Xxxxxxxxx Xxxxxxxx
_______________________ _______________________
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