EXHIBIT 10.1
AGREEMENT OF SUBLEASE
This Agreement of Sublease (this "SUBLEASE") is made as of the 15th
day of February 2005 by and between PatientKeeper, Inc. (f/k/a Virtual Medical
Systems, Inc.), a Delaware corporation, with its principal office at Brighton
Landing East, 00 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxxxxx 00000
(hereinafter referred to as "SUBLANDLORD"), and AMICAS, Inc., a Delaware
corporation, with its principal office at 00 Xxxxx Xxxxxx, Xxxxxxxx, XX 00000
(hereinafter referred to as "SUBTENANT").
W I T N E S S E T H:
WHEREAS, pursuant to that certain lease agreement by and between
Brighton Landing, LLC (f/k/a B.V. Development, LLC) (the "PRIME LANDLORD") and
Sublandlord dated as of May 25, 2000, as it may be amended from time to time
(the "PRIME LEASE" a copy of which Prime Lease, redacted as appropriate, is
attached hereto as EXHIBIT A), Sublandlord has leased space located at the
Brighton Landing, 20 Guest Street, Brighton, Massachusetts (the "BUILDINGS");
WHEREAS, Subtenant desires to sublease from Sublandlord, and
Sublandlord desires to sublease to Subtenant, a portion of the aforesaid space
leased to Sublandlord (hereinafter referred to as the "DEMISED PREMISES"); and
WHEREAS, the parties hereto desire to provide for the subletting of
the Demised Premises on the terms and conditions set forth in this Sublease.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements hereinafter set forth, the parties hereto agree as follows:
1. Demised Premises. Subject to and contingent upon the written
consent of the Prime Landlord, Sublandlord does hereby sublease to Subtenant,
and Subtenant does hereby sublease from Sublandlord, for the term and upon the
conditions hereinafter provided, the Demised Premises, including the right to
use all common areas as set forth in the Prime Lease. The Demised Premises
consists of (i) approximately 10,455 square feet (the "Initial Premises") of
gross rentable area (the "RENTABLE AREA") on the fourth (4th) floor of the
Building (currently designated Suite 400) and are outlined on EXHIBIT B attached
hereto and made a part hereof; and (ii) an additional approximately 16,159
square feet (the "Additional Premises") of Rentable Area on the fourth floor of
the Building and outlined on EXHIBIT B-1 attached hereto and made a part hereof.
2. Condition of Demised Premises.
Sublandlord shall deliver the Demised Premises in broom clean but
otherwise in its "as is" condition. Sublandlord shall not be required to make
any alterations, improvements, repairs or decorations to the Demised Premises
and shall deliver the Demised Premises in its "as is" condition. Subtenant's
possession of the Demised Premises on the Commencement Date (as defined
hereafter) shall be conclusive evidence that the Demised Premises have been
delivered in accordance with the provisions of this Sublease and are acceptable
to Subtenant.
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Subtenant shall make no structural or non-structural alterations to
the Demised Premises without the prior written consent of Sublandlord and Prime
Landlord, which consent shall not be unreasonably withheld or delayed by
Sublandlord.
3. Term.
(a) With respect to the Initial Premises, the term of this Sublease
shall commence on February 15, 2005 (the "COMMENCEMENT DATE") and shall end at
midnight on January 11, 2008, or on such earlier date upon which said term may
expire or be terminated pursuant to any of the conditions or limitations or
other provisions of this Sublease, the Prime Lease or pursuant to law. With
respect to the Additional Premises, the term of this Sublease shall commence on
July 1, 2006 and shall end at midnight on January 11, 2008, or on such earlier
date upon which said term may expire or be terminated pursuant to any of the
conditions or limitations or other provisions of this Sublease, the Prime Lease
or pursuant to law (collectively, the "TERM").
4. Use. Subtenant shall use and occupy the Demised Premises solely
for general office purposes (including, but not limited to, customer and staff
training, and product demonstrations), and shall comply with all applicable
laws, ordinances, governmental regulations, and all protective covenants and
restrictions of record affecting such use, and all rules and regulations of the
Prime Landlord with respect to the Building.
5. Base Rent.
(a) Commencing on the Commencement Date, Subtenant shall pay annual
base rent ("Base Rent") for the term hereby created as follows:
February 15, 2005 through June 30, 2006: a monthly amount of Twelve
Thousand Four Hundred Eighty Five and 00/100 Dollars ($12,485.00); and
July 1, 2006 through January 11, 2008: a monthly amount of Fifty Five
Thousand Three Hundred Seventy Seven and 11/100 Dollars ($55,377.11).
(The Base Rent and the Additional Rent (as defined hereafter) are
referred to herein as "RENT"). If the obligation of Subtenant to pay Base Rent
hereunder begins on a day other than on the first day of a month, Base Rent from
such date until the first day of the following month shall be pro-rated at the
rate of one-thirtieth (1/30) of the Base Rent for each day payable in advance.
Subtenant will pay said Base Rent by check made payable to Sublandlord or to
such other party as Sublandlord may designate, at its address provided in the
notice section hereof, or at such other address as Sublandlord may hereafter
designate in writing, in lawful money of the United States, without notice,
demand, set-off or deduction whatsoever, except as otherwise provided in the
Prime Lease, in advance on the first day of each and every calendar month and in
the manner otherwise hereinafter specified.
6. Security Deposit. Upon execution of this Sublease, Subtenant
shall provide Sublandlord a cash security deposit in the sum of Thirty-eight
Thousand Three Hundred Thirty-Five Dollars ($38,335.00). Upon July 1, 2006,
Subtenant shall provide Sublandlord an additional cash security deposit of
Fifty-nine Thousand Seven Hundred Seventy-six Dollars
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($59,776.00), so as to create a total cash security deposit of Ninety-eight
Thousand One Hundred Thirty-one Dollars ($98,131.00). In the event of any
default by Subtenant hereunder, Sublandlord shall have the right, but shall not
be obligated, to apply, upon three days prior written notice to Subtenant, all
or any portion of the deposit to cure such default, in which event Subtenant
shall be obligated to promptly deposit with Sublandlord that portion of the
deposit used to cure such default. Said security deposit may be mingled with
other funds of Sublandlord and no fiduciary relationship shall be created with
respect to such deposit, nor shall Sublandlord be liable to pay Subtenant
interest thereon. If Subtenant faithfully performs all the covenants and
conditions on its part to be performed, then the security deposit shall be
returned to Subtenant within thirty (30) days after the expiration of the
Sublease.
Sublandlord and Subtenant hereby agree that in the event of a
default by the Sublandlord under the Prime Lease, Prime Landlord may, in Prime
Landlord's discretion, demand that Sublandlord assign its rights to and interest
in the Security Deposit to Prime Landlord, to be held in trust by Prime Landlord
to secure the performance of the Subtenant under the Sublease.
7. Additional Rent.
(a) Subtenant shall pay, in addition to the Base Rent, its
Proportionate Share (as hereafter defined) of Sublandlord's Share of Excess
Property Taxes and Sublandlord's Share of Excess Operating Costs, pursuant to
Section 4.4 and 4.5 of the Prime Lease as additional rent (which payments, in
addition to those payments set forth in Section 7(b) and any other amounts due
hereunder, are referred to as "ADDITIONAL RENT"). For purposes of calculating
such excess amounts, the term "Operating Cost Base Year" shall be calendar year
2005, and "Property Tax Base Year" shall be fiscal tax year 2005. All payments
due by Subtenant under this Section 7(a) shall be made at least ten (10) days in
advance of the date comparable payments are due by Sublandlord under the Prime
Lease, but no sooner than twenty (20) days after Sublandlord has provided
Subtenant with an invoice and detailed support and calculation of such
Additional Rent. Subtenant's obligations hereunder to the extent accrued prior
to the Sublease expiration date, shall survive the expiration of the Sublease.
From the Commencement Date through June 30, 2006, Subtenant's "PROPORTIONATE
SHARE" with respect to the Demised Premises shall be equal to 10,455 square feet
divided by 54,162 square feet, as set forth in the Prime Lease. From July 1,
2006 through January 11, 2008, Subtenant's Proportionate Share with respect to
the Demised Premises shall be equal to 26,614 divided by 54,162 square feet.
(b) Subtenant shall also pay as Additional Rent, commencing on
the Commencement Date, its Proportionate Share of all utility charges incurred
by Sublandlord pursuant to Section 4.3 of the Prime Lease. Subtenant shall pay
such charges within thirty (30) days of receipt of billing from Sublandlord. If
Sublandlord or other subtenants operate any high energy consumption equipment in
excess of standard office equipment, Sublandlord covenants and agrees to adjust
such utility charges, by subtracting the cost of the electricity reasonably
estimated to be used for the operation thereof, prior to calculating Subtenant's
Proportionate Share. If Subtenant operates any high energy consumption equipment
in excess of standard office equipment, Subtenant covenants and agrees to pay,
as an additional charge, the cost of the electricity reasonably estimated to be
used for the operation thereof. In addition, if Subtenant
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requires any heat and air-conditioning during non-business hours, then Subtenant
shall pay any amounts charged by Prime Landlord in accordance with Section 5.1.1
of the Prime Lease. Subtenant shall not be charged the Proportionate Share of
any heat and air-conditioning during non-business hours requested by Sublandlord
or other subtenants. If electric utility service, or any utility service, is
separately metered at any time to the Demised Premises, Subtenant agrees to pay
such separately metered charges directly to the utility provider. The
Proportionate Share of such utility bills owed by Subtenant will be adjusted as
appropriate to reflect any such sub-metering. Sublandlord reserves the right,
but shall be under no obligation, to sub-meter the Demised Premises at any time
during this Sublease.
8. Obligations Under the Prime Lease. This Sublease and Subtenant's
rights under this Sublease shall at all times be subject to and are made upon
all of the terms, covenants, and conditions of the Prime Lease (except as
otherwise set forth herein), with the same force and effect as if fully set
forth herein at length, the termination (for whatever reason) of which Prime
Lease shall automatically terminate this Sublease. Except as otherwise expressly
provided for herein or as may be inconsistent or in conflict with the terms and
provisions of this Sublease, Subtenant shall keep, observe and perform or cause
to be kept, observed and performed, faithfully all those terms, covenants and
conditions of Sublandlord under the Prime Lease with respect to the Demised
Premises. Notwithstanding the foregoing, where "Premises" or "Lease" or words of
similar import appear in the Prime Lease, the same shall be deemed to mean the
Demised Premises (as defined in this Sublease) and this Sublease, respectively,
and wherever the words "Landlord" and "Tenant" appear in the Prime Lease, the
words shall be deemed to refer to Sublandlord and Subtenant, respectively.
Notwithstanding the foregoing, the following provisions of the Prime Lease
are hereby expressly excluded and shall not be incorporated in this Sublease:
Sections 2.4, 3.1, 3.2, 3.3, 3.4 (except that the provisions of the first three
(3) paragraphs, to the extent applicable, shall apply to any alterations made by
Subtenant), 3.5, 3.6, 4.2, 6.1.6., 10.11 and Exhibit C and D.
In addition, to the extent that Sublandlord has any rights or options to
extend or renew the Prime Lease, or any expansion options or right of first
offers, Subtenant shall have no right to exercise such rights or options. In
addition, notwithstanding the provisions of this Section 8 of the Sublease to
the contrary, Sublandlord shall have no obligation to perform or furnish any of
the work, services, repairs or maintenance undertaken to be provided to the
Demised Premises that are made or performed by Prime Landlord under the Lease
(including but not limited to the Prime Landlord's Covenants set forth in
Article V of the Prime Lease) or any other term, covenant or condition required
to be performed by Prime Landlord under the Lease, and for all such services and
rights Subtenant will look solely to Prime Landlord. Furthermore, any
representations made by Prime Landlord in the Prime Lease shall be personal to
Prime Landlord and Sublandlord shall not be liable for any breach thereof.
Subtenant shall not be entitled to any abatement of Rent hereunder as a result
of the failure of Prime Landlord to perform or provide any of the work or
services to be provided by Prime Landlord in respect of the Demised Premises.
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9. Insurance.
(a) Subtenant shall obtain and at all times during the term
hereof maintain, at its sole cost and expense, policies of insurance required by
Section 6.1.8 of the Prime Lease.
(b) Subtenant shall deliver to Sublandlord and Prime Landlord
certificates of such insurance at the beginning of the term of this Sublease,
and thereafter certificates of renewal thereof not less than thirty (30) days
prior to the expiration of any such policy. In the event that Subtenant shall
fail promptly to furnish any insurance herein required, and provided Sublandlord
delivers to Subtenant at least three business days prior written notice and an
opportunity to cure, Sublandlord may effect the same and pay the premium
therefor for a period not exceeding one (1) year of the expiration hereof, and
the premium so paid by Sublandlord shall be payable by Subtenant to Sublandlord
within five (5) business days of receipt by Subtenant of notice of payment
thereof from Sublandlord.
(c) All policies of insurance as aforesaid shall name both
Sublandlord and the Prime Landlord as additional insureds, as their interests
may appear, and include a clause waiving the rights of subrogation against Prime
Landlord and Sublandlord.
10. Defaults. If Subtenant shall (i) fail to pay when due any Rent
or other sums due hereunder, or (ii) fail to faithfully perform any other
obligation under this Sublease, or (iii) default under Article IX of the Prime
Lease, then Subtenant shall be in default of this Sublease and Sublandlord shall
have all of the rights and remedies accorded to the Prime Landlord under the
Prime Lease and Subtenant shall have all of the rights and protections accorded
Sublandlord under the Prime Lease (except as otherwise set forth in this
Sublease). Subtenant further agrees to reimburse Sublandlord for all costs and
expenses, including reasonable attorneys' fees, incurred by Sublandlord in
asserting its rights hereunder against Subtenant or any other party claiming by,
through or under Subtenant.
11. Subordination. This Sublease is subject and subordinate to the
Prime Lease, to all ground and underlying leases, and to all mortgages and deeds
of trust which may now or hereafter affect such leases, the leasehold estate or
estates thereby created or the real property of which the Demised Premises form
a part, and to any and all renewals, modifications, consolidations, replacements
and extensions thereof.
12. Assignments and Further Subleases.
(a) Subtenant agrees that it will not assign or encumber, or
permit to be encumbered, its rights or interests under this Sublease, nor sublet
the whole or any part of the Demised Premises, directly or indirectly, by
operation of law or otherwise, without the prior written consent of Sublandlord
and Prime Landlord. Sublandlord agrees that it shall not unreasonably withhold
or delay its consent to any proposed assignment or sublet, provided that the
proposed assignment or sublet complies with all conditions set forth in the
Prime Lease. Subtenant shall reimburse Sublandlord promptly for its reasonable,
out-of-pocket, legal and other expenses incurred by Sublandlord in connection
with any request by Subtenant for consent to assignment or subletting. Subtenant
further agrees that, notwithstanding any assignment or
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sublease, Subtenant shall remain fully liable for the payment of Rent and
Additional Rent and for the other obligations of this Sublease on the part of
Sublessee to be performed or observed.
(b) Provided that Subtenant is not in default of any monetary
obligation hereunder (after the expiration of any applicable grace, notice or
cure period), in the event Subtenant subleases or assigns all or part of the
Demised Premises to a tenant pursuant to Section 12 (a) above, and, after
deducting all reasonable expenses incurred by Subtenant in connection with such
sublease or assignment (including attorneys fees, brokerage commissions, tenant
improvements paid by Subtenant and rent concessions) said tenant is obligated to
pay Subtenant more in any month than Subtenant is obligated to pay Sublandlord
under this Sublease, then Subtenant shall pay Sublandlord fifty percent (50%) of
the amount by which Subtenant's net rent received from said tenant after any
reasonable associated transaction expense incurred in connection with said
subletting or assignment exceed the Subtenant's payment obligations hereunder.
13. Quiet Enjoyment and Consent of Prime Landlord. Sublandlord
covenants and agrees with Subtenant that, upon Subtenant paying the rent
reserved in this Sublease and observing and performing all the terms, covenants
and conditions of this Sublease on Subtenant's part to be observed and
performed, Subtenant may peaceably and quietly enjoy the Demised Premises during
the term of this Sublease free from any claim by Sublandlord or persons claiming
under Sublandlord, in accordance with the terms, covenants and conditions of
this Sublease.
14. Indemnification. Subtenant hereby agrees to indemnify and hold
Sublandlord and the Prime Landlord harmless from and against any cost, damage,
claim, liability or expense (including reasonable attorney's fees) incurred by
or claimed against Sublandlord and the Prime Landlord, directly or indirectly,
as a result of (i) any act, event or occurrence in or about the Buildings caused
by Subtenant, Subtenant's employees or guests, (ii) Subtenant's breach of any of
its covenants under this Sublease, (iii) the use or occupancy of the Buildings
by Subtenant or any person using or occupying the Buildings under or through
Subtenant, or (iv) any act, omission, negligence or misconduct of Subtenant, or
of any person using or occupying the Buildings under or through Subtenant or of
any contractor, employee, agent or visitor of Subtenant in or about the property
of which the Buildings are a part.
Sublandlord hereby agrees to indemnify and hold Subtenant harmless
from and against any costs, damage, claim, liability or expense (including
reasonable attorney's fees) incurred by or claimed against Subtenant, directly
or indirectly, caused by Sublandlord or Sublandlord's contractors, employees,
agents or visitors' negligence or willful misconduct.
15. Notices. Any notice, demand or other communication which must or
may be given or made by either party hereto shall be in writing and shall be
given or made by hand delivery, commercial courier, against receipt, or by
mailing the same by registered or certified mail, postage prepaid, addressed:
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In the case of Subtenant, to
Prior to Occupancy:
AMICAS, Inc.
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxxxx
After Occupancy:
AMICAS, Inc.
00 Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxxxx
With a required copy to:
AMICAS, Inc.
00 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
In the case of Sublandlord, to
PatientKeeper, Inc.
Brighton Landing East
00 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx Xxxxxxxx
With a required copy to:
Xxxxx X. Xxxxx, Esq.
Looney, Cohen, Xxxxxx & Xxxxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxxxxx, XX 00000
If to Prime Landlord
B.V. Development, LLC
Brighton Landing East
00 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
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If to Prime Landlord's Counsel
Xxxxxxxxx Xxxxxxx, LLP
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxx X. Xxxx, Esq.
Either party may, by notice to the other given as aforesaid, designate a new or
additional address to which any such notice, demand or other communication
thereafter shall be given, made or mailed. Any notice, demand or communication
given hereunder shall be deemed delivered when actually received.
16. Surrender. Upon the expiration of the Term, provided that
Subtenant has not entered into a direct lease of the Demised Premises with the
Prime Landlord which direct term commences as of the expiration of the Term,
Subtenant shall quit and surrender to Sublandlord the Demised Premises
(including the furnishings, phone systems and any other items, if any, owned by
Sublandlord and which Subtenant used throughout the Term), broom clean and in
the same order and condition as they were on the Commencement Date, ordinary
wear and casualty excepted, and Subtenant shall remove from the Demised Premises
all of its personal property, furnishing and trade fixtures. Subtenant's
obligations to perform and observe this covenant shall survive the expiration or
other termination of the term of this Sublease.
17. Holdover. In the event Subtenant shall not immediately surrender
the Demised Premises upon the expiration of the Term, and provided that
Subtenant has not entered into a direct lease of the Demised Premises with the
Prime Landlord which direct term commences as of the expiration of the Term,
Subtenant shall become a tenant-at-sufferance at one hundred seventy-seven
(177%) of the Rent then in effect, and subject to all of the terms, conditions,
covenants and agreements of this Sublease. In addition, Subtenant shall be
liable to Sublandlord for, and shall indemnify Sublandlord against all claims
made against Sublandlord resulting from Sublandlord's delay in delivering
possession of the Demised Premises to Prime Landlord, including but not limited
to any holdover rent over and above the rent due under the first sentence of
this section that Sublandlord is required to pay Prime Landlord pursuant to the
terms of the Prime Lease.
18. Sublandlord's Compliance with Prime Lease. Sublandlord agrees to
pay all rents and other sums required of it, and comply with all other
provisions of the Prime Lease. Sublandlord hereby represents and warrants that
the Prime Lease (a) is presently in full force and effect, and has not been
amended or modified, (b) there is presently no outstanding default in the
payment of rent or other sums due under the Prime Lease and (c) to the best of
Sublandlord's knowledge, there is presently no outstanding breach or default of
the Prime Lease by either Sublandlord or Prime Landlord.
Subtenant agrees that in any case where the provisions of this Sublease
require the consent or approval of Sublandlord 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 Prime Landlord shall have been
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obtained if Prime Landlord's consent must be obtained under the Prime Lease in
such cases. In the event Prime Landlord's consent is so obtained, Sublandlord
agrees that its consent shall not be unreasonably withheld, delayed or
conditioned except as otherwise provided herein. Sublandlord agrees that it
shall use commercially reasonable efforts to obtain Prime Landlord's consent in
such circumstances (provided that in no event shall Sublandlord be required to
compensate Prime Landlord to obtain such consent), but otherwise shall not have
any duty or responsibility with respect to obtaining the consent or approval of
Prime Landlord.
19. Casualty and Taking. In the event of any taking by eminent
domain or damage by fire or other casualty to the Demised Premises thereby
rendering the Demised Premises wholly or in part untenantable, Subtenant shall
acquiesce in and be bound by any action taken by or agreement entered into
between Prime Landlord and Sublandlord with respect thereto. In addition, in the
event of any taking by eminent domain or damage by fire or other casualty to the
Demised Premises, Subtenant shall be entitled to terminate this Sublease if, and
to the extent, that Sublandlord has such termination rights in the Prime Lease
with respect to the Demised Premises, provided, however, that Subtenant must
provide notice of any such termination twenty (20) days earlier than required to
be given by Sublandlord to Prime Landlord under the terms of the Prime Lease,
but no sooner than ten (10) days after written notice of such taking is provided
to Subtenant by Sublandlord.
20. Broker. Subtenant warrants that it has had no dealings with any
broker or agent in connection with this Sublease except for Xxxxxxxx & Grew,
Inc. and XXX Xxxxxxxx. Subtenant covenants to pay, hold harmless and indemnify
Sublandlord from and against any and all costs, expense or liability for any
compensation, commissions and charges claimed by and broker or agent other than
the broker designated in this Section with respect to this Sublease or the
negotiation thereof arising from a breach of the foregoing warranty. Sublandlord
shall be responsible for payment of any brokerage commission to the broker
designated in this Section pursuant to separate agreement.
21. Furniture, Equipment. The Demised Premises shall be delivered to
Subtenant with all furniture, equipment and wiring currently located therein,
and Subtenant shall have the use of said furniture, equipment and wiring for the
duration of the Term at no additional charge. An inventory of the furniture and
equipment currently located in the Demised Premises is set forth on EXHIBIT C.
Sublandlord makes no representations or warranties that the existing furniture,
equipment or wiring is sufficient for Subtenant's business purposes, and
Subtenant accepts such furniture, equipment and wiring in its "as is" condition.
The furniture, equipment and wiring shall remain the property of Sublandlord. At
the expiration of the Term, or earlier termination thereof, all furniture,
equipment and wiring shall be delivered to Sublandlord in the same condition as
of the date of this Sublease, reasonable wear and tear excepted.
22. General Provisions.
(a) Benefit and Burden. The covenants, conditions, agreements,
terms and provisions herein contained shall be binding upon, and shall inure to
the benefit of, the
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parties hereto and each of their respective personal representatives,
successors, heirs, executors, administrators and assigns.
(b) Governing Law. It is the intention of the parties hereto
that this Sublease (and the terms and provisions hereof) shall be construed and
enforced in accordance with the laws of the Commonwealth of Massachusetts (but
not including the choice of law rules thereof).
(c) Entire Agreement. This Sublease contains the final and
entire agreement between the parties hereto, and they shall not be bound by any
terms, statements, conditions or representations, oral or written, express or
implied, not herein contained.
(d) Conflicts Between this Sublease and the Prime Lease. With
respect to the relationship between Sublandlord and Subtenant, the terms and
conditions of this Sublease shall take precedence with respect to any conflict
between the terms and conditions contained herein and the terms and conditions
of the Prime Lease. Nothing herein shall be construed in any way to affect the
rights and obligations of Sublandlord and the Prime Landlord under the Prime
Lease.
(e) Captions. The captions throughout this Sublease are for
convenience of reference only and the words contained therein shall in no way be
held or deemed to define, limit, describe, explain, modify, amplify or add to
the interpretation, construction or meaning of any provision of or the scope or
intent of this Sublease, nor in any way affect this Sublease.
(f) Singular and Plural. Wherever appropriate herein, the
singular includes the plural and the plural includes the singular.
(g) Counterparts. This Sublease may be executed in several
counterparts, but all counterparts shall constitute but one and the same
instrument.
(h) No Recordation. Neither this Sublease nor any short-form
memorandum or version hereof shall be recorded by either party.
(i) Parking. From the Commencement Date through and including
June 30, 2006, Subtenant shall be entitled to use, on a non-reserved basis,
thirty one (31) of the parking spaces available to Sublandlord in the South
Garage, as set forth in Section 2.1. From July 1, 2006 through January 11, 2008,
Subtenant shall be able to use, at no additional cost on a non-reserved basis,
eighty (80) of the parking spaces available to Sublandlord in the South Garage;
provided, however that at no time during the Term shall Subtenant shall have
rights to use any of the four (4) parking spaces specifically reserved for
Sublandlord in the West Garage.
(j) Signage. Subject to the prior reasonable consent of
Sublandlord and Prime Landlord, Subtenant shall have the right to erect signage
at the Demised Premises in accordance with the provisions of the Prime Lease.
Subtenant shall be responsible for any costs incurred in connection with such
signage.
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(k) Consent of Prime Landlord. The terms and conditions of
this Sublease, and all rights and obligations of the parties hereunder, are
subject to the consent of the Prime Landlord in accordance with the terms of the
Prime Lease.
(l) Termination of Current Sublease. The terms and conditions
of this Sublease, and all rights and obligations of the parties hereunder, are
subject to the execution of a Termination Agreement between Sublandlord and IMG
Worldwide ("IMG") terminating that certain Sublease dated May 31, 2001 between
Sublandlord and IMG with respect to the Demised Premises.
(m) This terms and conditions of this Sublease, and all of the
rights and obligations of the parties hereunder (notwithstanding that this
Sublease may have been executed by the parties hereto) are subject to, and shall
have no force and effect whatever, unless and until the Prime Landlord consents
in writing to both this Sublease and a contemporaneous fully executed Sublease
between Subtenant and Chordiant, Inc. for space on the second floor of Brighton
Landing, 00 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx.
[Signature page follows]
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IN WITNESS WHEREOF, Sublandlord and Subtenant have each executed
this Sublease on the day and year first hereinabove written.
SUBLANDLORD:
PatientKeeper, Inc.
----------------------------------------
By: Xxxxx X. Xxxxxxxx
Its: Chief Financial Officer
SUBTENANT:
AMICAS, Inc.
----------------------------------------
By: Xxxx Xxxxxxxxxxx
Its: Senior Vice President
EXHIBIT A
Prime Lease
Attached hereto.
EXHIBIT B
Outline of the Space
Attached hereto.
EXHIBIT B-1
Outline of Additional Premises
Attached hereto.
EXHIBIT C
Furniture and Equipment
Attached hereto.
