SUBLEASE AGREEMENT
1. PARTIES
This Sublease (the "Sublease"), dated January 7, 2003 is made by and between The
Dialog Corporation, a Delaware corporation, successor by merger to Newsedge
Corporation, a Delaware corporation, ("Sublessor"), and Xxxxxx Medical, Inc., a
Texas corporation ("Sublessee").
2. MASTER LEASE
On May 26, 1999, Red Sea Group Addison, L.P., as Landlord ("Lessor") entered
into a lease ("Mastery Lease") with Sublessor, whereby Lessor leased to
Sublessor 1,720 rentable square feet of space ("Premises") in that certain
building ("Building") known as Addison Plaza, located at 00000 Xxxxxxx Xxxx,
Xxxxxxx, Xxxxx.
A true and complete copy of the Master Lease is attached hereto as Exhibit A and
except as otherwise provided in Section 11 hereof made a part hereof
Any capitalized term used herein and not otherwise defined shall have the
meaning given to it in the Master Lease. To the extent any term or condition of
this Sublease conflicts with any term or condition of the Master Lease, as
between Sublessor and Sublessee (but not as between Lessor and Sublessor), this
Sublease shall govern.
3. SUBLET SPACE
3(a) Demise of Sublet Space and Use of Common Areas. Sublessor hereby subleases
the Premises to Sublessee (as shown on Exhibit B attached hereto) and all
improvements and fixtures contained therein as of the execution of this Sublease
(the "Sublet Space"), on the terms and conditions set forth in this Sublease,
together with the right to use, to the extent such right is extended to
Sublessor pursuant to the terms of the Master Lease, in common with others, such
portions of the lobbies, elevators and other public portions of the Building as
may be necessary for access to the Sublet Space.
3(b) Condition of Sublet Space. Sublessor shall deliver the Sublet Space to
Sublessee on the Commencement Date (as such term is hereinafter defined) "as is"
and "where is," in broom-clean, condition, with the improvements made pursuant
to Article 10 hereof
3(e) Maintenance of Sublet Space. Compliance with Laws. End of Term.
Sublessee shall maintain the Sublet Space in good condition and repair and shall
return the same to Sublessor after the Expiration Date (as defined in Section 6
hereof) in the same condition as they are delivered to Sublessee on the
Commencement Date, normal wear and tear and casualty not caused by Sublessee
excepted.
During the term of this Sublease, Sublessee shall comply with all applicable
laws, ordinances,
rules and regulations of any governmental authorities regarding the Sublet
Space, provided that Sublessee shall have no responsibility to cure any
violation of laws, ordinances, rules and regulations existing prior to the
Commencement Date.
4. FURNITURE
Sublessor hereby grants to Sublessee, without charge, the right to use, during
the Sublease Term, the furniture located in the Sublet Space as of the execution
date of this Sublease (the "Furniture"). In addition to any other rights and
remedies available to Sublessor under this Sublease or the Master Lease,
Sublessor may revoke this license at anytime during the Sublease Term if
Sublessee is its default hereunder beyond applicable grace and cure periods. On
the Expiration Date, provided that Sublessee is not in default hereunder,
Sublessor shall be deemed to have conveyed to Sublessee, without charge, all of
its right, title and interest in, and to the Furniture. The Furniture will be
conveyed to Sublessee in its "as is" condition on the Expiration Date. Sublessee
shall pay all sales tax, if any, imposed upon Sublessor by any governmental
authority in connection with the transfer of the Furniture by Sublessor to
Sublessee. On or before the Expiration Date, Sublessee shall be solely
responsible for the removal from the Sublet Space, at its sole cost and expense,
of the Furniture and all other movable property, furniture, furnishings and
trade fixtures furnished by or at the expense of Sublessee, other than those
affixed to the Sublet Space which are not required to be removed by the
Sublessor pursuant to the terms of the Master Lease.
5. REPRESENTATIONS BY SUBLESSOR AND SUBLESSEE
Sublessor represents to Sublessee:
i. that it is duly incorporated and validly existing corporation under the laws
of incorporation as stated in this Sublease;
ii. that the individual signing on behalf of Sublessor has the power and
authority to so execute;
iii. that the Master Lease has not been amended or modified and is in full force
and effect; and
Sublessee represents to Sublessor
i. that it is duly incorporated and validly existing corporation under the laws
of incorporation as stated in this Sublease;
ii. that the individual signing on behalf of Sublessee has the power and
authority to so execute; and
iii. that the financial statements provided to Sublessor in connection with this
Sublease are true, complete and accurate in all material respects.
6. TERM
The term of this Sublease (the "Sublease Term") shall commence on the later of
(i) February 1, 2003 or (ii) the date the consent required pursuant to Section
15 hereof. bias been delivered by Sublessor to Sublessee ("Commencement Date")
end, unless sooner terminated as provided herein, shall end at midnight on June
29, 2004 (the 'Expiration Date"), subject to the terms of the Master Lease.
If Sublessor is unable to give possession of the Sublet Space on the
Commencement Date hereof for any reason, Sublessor shall not be subject to any
liability for failure to give possession on said date and the validity of this
Sublease shall not be impaired under such circumstances, except as provided in
Section 15 herein, nor shall the same be construed to extend the term of this
Sublease, but the rent payable hereunder shall be abated (provided Sublessee is
not responsible for Sublessor's inability to deliver possession) until after
Sublessor shall have given Sublessee notice that the Sublet Space is available
for Sublessee's occupancy and shall have delivered possession of the Sublet
Space to Sublessee.
7. RENT/SERVICES & UTILITIES
7.1 Sublease Base Rent: Sublessee shall pay to Sublessor without deduction,
setoff, notice or demand, at the following address: The Dialog Corporation,
00000 Xxxxxxx Xxxxxxx, Xxxxx 00, Xxxx, Xxxxx Xxxxxxxx 00000, attention: Xxxx
Xxxxxx, or at such other address as Sublessor may from time to time designate by
written notice to Sublessee, base rent ("Monthly Base Rent") in the amount of
$1,576.67.
Monthly Base Rent is inclusive of electric, subject to the terms of the Master
Lease. The Monthly Base Rent shall be payable on a monthly basis, in advance,
commencing 30 days from the Commencement Date ("Rent Commencement Date") and on
the first day of each month thereafter during the Sublease Term. If the Sublease
Term begins or ends on a day other than the first or last day of the month, the
Monthly Base Rent for any partial month shall be prorated on a per diem basis.
The first full monthly installment of Monthly Base Rent in the amount of
$1,576.67 shall be due and payable by Sublessee upon the execution of this
Sublease.
7.2 Adjustment of Base Rental. Commencing 12 months from the Commencement Date
of this Lease, Sublessee shall pay to Sublessor its pro rata share of Operating
Expenses, as calculated in accordance with Article 4 of the Master Lease, except
that Section 1(I) of the Master Lease is hereby amended to read, "The aggregate
of Operating Expenses incurred in connection with the Building during calendar
year 2003" anal the year referenced in Section 4(a) shall be changed to read
"2004."
7.3 Electricity and Phone Services;
a. Electricity: Sublessee shall at all times comply with Lessor's rules and
regulations applicable to the service, equipment, wiring and requirements of the
electricity in the Building. Sublessee covenants and agrees at all times that
its use of electricity will not exceed the capacity of the existing feeders to
the Building or the risers or wiring installations therein (the existing
feeders, risers and wiring installations servicing the Sublet Space are
hereinafter referred to as the
"Electrical System"). Sublessee shall not use any electrical equipment, which,
in Sublessor's sole judgement will overload any component of the Electrical
System. Sublessee shall not make any installations, alterations, additions or
changes to the Electrical System without Sublessor's prior written consent in
each such instance. Sublessor agrees that it shall not unreasonably withhold or
delay its consent if Lessor has approved o(pound) such installations,
alterations, additions or changes to Electrical System.
b. Telephone Service: Sublessee shall pay all telephone charges for the Sublet
Space during the Sublease Term directly to the telephone company providing same
to Sublessee.
7.3 Interest on Late Payments. If all or any portion of the Monthly Base Rent or
any other sums due to Sublessor under this Sublease shall not be paid when due,
such unpaid Monthly Base Rent or any other amount due to Sublessor under this
Sublease shall bear interest, from the date on which such sum was originally due
until the date when paid, at a rate equal to the applicable rate pursuant to the
terms of the Master Lease.
8. USE OF SUBLET SPACE
The Sublet Space shall be used and occupied by Sublessee only for the uses set
forth in Section I (h) of the Master Lease.
9. ASSIGNMENT AND SUBLETTING
Sublessee shall not assign this Sublease or further sublet all or any part of
the Sublet Space without the prior written consent of Sublessor and Lessor.
10. CONDITION OF SPACE ON DELIVERY AND ALTERATION OF SUBLET SPACE
Sublessee acknowledges that it is accepting the Sublet Space in "as is"
condition and Sublessor has no obligation to make improvements or alterations
thereto except as expressly provided in this Article 10. Sublessee shall, at its
own, expense, paint, repair blinds, install shelving and repair minor damages to
the Sublet Space. Provided that Sublessee is not in default hereunder beyond
applicable grace and cure periods, Sublessee shall receive a credit of the first
month of Monthly Base Rent hereunder in the amount of $1,576.67 toward such
repairs and alterations performed by Sublessee. Sublessee shall be solely
responsible for any costs in excess of $1,576.67 to complete such repairs and
alterations.
Sublessee shall not make any alterations to the Sublet Space without the prior
written consent of Sublessor and Lessor. Sublessor shall not withhold its
consent if Lessor consents to such alterations. As of the Expiration Date,
Sublessee shall be responsible for removing, at its sole cost and expense, any
alterations done by Sublessee.
11. OTHER, PROVISIONS OF MASTER LEASE
a. Incorporation by reference: Except as otherwise provided herein to the
contrary, all terms and
conditions of the Master Lease are incorporated into and made a part of this
Sublease, as between Sublessor and Sublessee only, as if Sublessor were the
Lessor thereunder, Sublessee the tenant thereunder, and the Sublet Space were
the Sublet Space leased by the Sublessor.
The following provisions of the Master Lease are not incorporated herein and
Sublessee shall have no rights or obligations pursuant thereto: Definitions:
Sections 1(a) ("Landlord"), 1(b) ("Tenant"), 1(e) ("Base Rental"), 1(f)
("Prepaid Rental"), 1(g) ("Security Deposit"), 1(j) ("Leasing Agent"), 1(l)
("Submission Dates', 1(m) ("Allowance"), first sentence of Article 7
(Installation of Improvements: ADA Compliance), Article 8 (Completion of
Improvements acid Commencement of Rent), Article 9 (Limited Right to Calculate
Rentable Space; Subsequent Liquidation), Article 21 (Assignment and Subletting),
last sentence of Article 22 (Holding Over), Article 36 (Consents), Article 38
(Brokerage), Article 46 (Effective Date), Exhibit h (Leasehold Improvements
Agreement), Exhibit F (Tenant's Option to Renew), and Schedule 1 (Tenant
Improvements - Building Standard) all of which are either covered by Sections of
this Sublease or have no application to the Sublessee.
b. Additional Amendments to Master Lease Provisions.
i. References. All references to "Landlord" or "Owner" in the Master Lease shall
be deemed to be references to Sublessor and Lessor unless otherwise indicated.
The reference to Landlord or Owner, as the case may be, in the following
sections shall refer solely to Lessor under the Master Lease: Section 1(n)
("Rentable Axes"), second sentence and subsection (b) of Article 2 (Lease of
Premises, Parking Privileges), subsections (a) through (e) of Article 3
(Services by Landlord), second sentence of Article 7 (Installation of
Improvements: ADA Compliance), last sentence of Article 10 (Repairs and
Reentry), Article 11 (Alterations and Additions by Tenant), Article 18 (Fire and
Casualty), Article 19 (Condemnation), Article 20 (Relocation of Premises),
Article 32 (Building Name), Article 33 (Subordination).
ii. Abatements. Sublessee shall not be entitled to any abatements of Monthly
Base Rent or any additional rent unless Sublessor is entitled to such abatements
pursuant to the terms of the Master Lease and actually receives such abatement
from Lessor.
iii. Services. Notwithstanding the incorporation of any provisions of the Master
Lease addressing services or repairs, Sublessor shall not have any liability to
Sublessee for any failure to provide any service or perform any obligation,
which is the responsibility of Lessor under the Master Lease. Sublessor's only
responsibility shall be to use commercially reasonable efforts to cause Lessor
to perform its obligations under the Master Lease for the benefit of Sublessee.
iv. Fire and Casualty and Condemnation. Notwithstanding the incorporation of
Articles 18 and 19 of the Master Lease, to the extent the Master Lease gives
Lessor any right to terminate the Master Lease in the event of the partial or
total damage or destruction or condemnation of the Sublet Space or the Building
of which the Sublet Space is a part, this Sublease shall terminate
contemporaneously with, the Master Lease without any liability of Sublessor as a
result thereof. Sublessor shall give to Sublessee notice of Lessor's exercise of
any such right within ten (10) days after Sublessor receives any such notice
from Lessor.
v. Insurance. Sublessee shall, as to the Sublet Space, procure and maintain
policies of insurance covering liability and physical damage with respect to the
Sublet Space, as are required. of Sublessor under Article 17 of the Master
Lease, insuring Lessor and in addition to Sublessor. Sublessee shall provide
with satisfactory evidence of such insurance prior to the Commencement Date oaf
this Sublease.
With respect to those provisions of the Master Lease not eliminated from
incorporation herein by reference or amended herein: (i) Sublessee assumes and
agrees to perform the obligations of Lessee under such provisions of the Master
Lease to the extent that such obligations are applicable to the Sublet Space
during the Sublease Term and (ii) Sublessor assumes and agrees to perform the
obligations of Lessor under such provisions of the Master Lease to the extent
that such obligations are applicable to the Sublet Space during the Sublease
Term. Neither Sublessor nor Sublessee shall commit or suffer any act or omission
that will violate any of the provisions of the Master Lease or the Sublease. If
the Master Lease or Sublease terminates as a result of a default or breach of
Sublessor or Sublessee under thus Sublease and/or Master Lease, then the
defaulting party shall be liable to the non defaulting party for the direct
damage suffered as a result of the such termination. This liability shall
survive termination of this Sublease.
12. BROKER PARTICIPATION
Sublessor and Sublessee warrant and represent that they have dealt with no real
estate brokers in connection with, this Sublease other than NAI Stoneleigh Xxxx
Xxxxx XxXxxxxx and Transwestern Commercial Services and XXX Xxxxxxxxx Realty
Incorporation (the "Brokers") and that Sublessor agrees to pay the Brokers
pursuant to a separate written agreement and that no broker other than the
Brokers axe entitled to any commission on account of this Sublease. Each party
shall hold the other party harmless from and against any and all costs
(including reasonable attorney's fees), expense or liability for any
compensation, commissions and charges claimed by any other broker through
contacts the indemnifying party had with respect to this Sublease.
13. NOTICES /TIME PERIODS
All notices and demands which may or are to be required to be given to either
party by the other hereunder shall be in writing. All notices and demands by the
Sublessor to the Sublessee shall be sent by United States Mail, certified or
registered mail, postage prepaid, or by private delivery service addressed to
the Premises, Attention: Xx Xxxxx, President, or to such other person or place
as the Sublessee may from time to time designate in a notice to the Sublessor.
All notices and demands by the Subleases to Sublessor shall be sent by United
States Mail, certified or registered mail, postage prepaid, or by private
delivery service addressed to: Thomson Legal & Regulatory Inc., 000 Xxxxxxxx
Xxxxx, Xxxxx, XX 00000, Attention,: Vice President, U.S. Real Estate, with a
copy to The Thomson Corporation, Xxx Xxxxxxx Xxxxx, Xxxxxxxx Xxxxxxxxxxx 00000,
Attention: Real Estate Counsel, or to such other person or place as the
Sublessor may from lime to time designate in a notice to the Sublessee. All
notices shall be effective on receipt or refusal of delivery. The time limits
provided in the Master Lease for the Sublessor to give notices, make demands,
perform any act, condition or covenant, or exercise any right, remedy or option,
except in the case of payment of Monthly Base Rent or any additional rent, which
shall be within the
time periods prescribed herein, are changed for the purposes of the
incorporation of the Master Lease in this Sublease by the shortening the same by
ten (10) days in each instance, unless such time limit is ten (10) days or less,
in which event it shall be shortened by five (5) days (but in no event less than
twenty-four (24) hours), so that notices may be given, demands made, any act,
condition or covenant performed, or any right, remedy or option hereunder
exercised within the time limit relating thereto contained in the Master Lease.
Each parry shall, no later than five (5) business days after receipt thereof,
give the other party a copy of any ' notice, demand or. other communication
received from Lessor.
14. QUIET ENJOYMENT
Subject to the provisions of this Sublease, Sublessor covenants that so long as
Sublessee is not in default in the performance of its covenants and agreements
under this Sublease beyond any applicable cure period, Sublessee's quiet and
peaceable enjoyment of the Sublet Space shall not be disturbed or interfered
with by Sublessor or any person claiming by, though or under Sublessor.
Sublessor hither covenants that Sublessor shall not terminate the Sublease or
amend the Sublease so as to adversely affect the rights of Sublessee under this
Sublease without the prior written consent of Sublessee.
15. CONSENT BY LESSOR
This Sublease shall be: of no force or effect unless consented to by Lessor by
execution and delivery of a consent document after the execution hereof. In the
event this Sublease is nullified pursuant to the terns of this Section 15, any
monies paid by Sublessee to Sublessor shall be promptly refunded, the parties
hereto shall bear their respective costs in connection with this Sublease and
shall .have no further liability hereunder. Sublessor, at its expense, hereby
agrees to pursue the required Lessor consent pursuant to the Master Lease as
promptly as reasonably possible after the mutual, execution of this Sublease. In
the event Lessor consent to this Sublease is not obtained fur any reason
whatsoever within 45 days following the mutual execution of this Sublease,
either party may give the other party hereto written notice that this Sublease
shall be deemed null and void and of no effect, provided, however, before this
Sublease can be deemed null and void and of no effect, Sublessor shall promptly
refund all sums paid by Sublessee hereunder.
16. ENTIRE AGREEMENT
There are no oral, agreements between Sublessor and Sublessee affecting this
Sublease, and this Sublease supersedes and cancels any and all previous
negotiations, arrangements, brochures, agreements and understandings, if any
between Sublessor and Sublessee or displayed by Sublessor to Sublessee with
respect to the subject matter of this Sublease, except to the extent the Master
Lease is incorporated herein by reference. This Sublease may not be amended
except in writing signed by both parties authorized officers. This Sublease may
be executed in counterparts and shall be deemed fully executed and delivered
when a counterpart executed by each xxxxx has been delivered to the other.
17. LIABILITY OF THE PARTIES
Notwithstanding any other provision contained herein to the contrary, a party
shall look only to the assets of the other party for the satisfaction of any
liability of such other party under this Sublease, it being expressly understood
and agreed that any partner, officer, director, employee or agent of a party, as
an individual, shall not be held personally liable for such obligations and the
claiming party shall not pursue any satisfaction of any judgment against the
other party against the assets of such other party's partners, officers,
directors, employees or agents. Sublessor's liability hereunder, if any, shall
be limited to direct damages.
18. INDEMNITY
Effective from the Commencement Date, Sublessee shall assume the risk of
responsibility for, have the obligation to insure against, and indemnity
Sublessor and hold it harmless from any and all liability for any loss or damage
or injury to any person (including death resulting therefrom) or property
occurring within the Sublet Space, regardless of cause, except to the extent any
loss or damage is caused by the negligence (whether by acts or omissions) or
willful misconduct of Sublessor, its employees and agents, and from and against
any and all losses, costs, damages, expenses and liabilities, including without
limitation, reasonable attorney fees, court costs and disbursements, to the
extent incurred by Sublessor by reason of the breach or default under this
Sublease or the Master Lease by Sublessee or its officers, directors, agents,
employees, contractors, licensees, sublessees (except for Sublessee), assigns or
invitees which results in the termination of the Master Lease. Sublessee hereby
releases Sublessor from any and all liability for same. Sublessee's Obligation
to indemnify Sublessor hereunder shall include the duty to defend against any
claims asserted by reason of such loss, damage or injury and to pay any
judgments, settlements, costs, fees and expenses, including reasonable
attorney's fees incurred by Sublessor in connection therewith. The indemnity
provisions in the Sublease shall survive termination of this Sublease.
Sublessor shall notify Sublessee in writing of any loss, cost, damage, expense
or liability for which Sublessor is seeking indemnification hereunder within, a
reasonable time period following the event giving rise to the indemnification;
however, failure to provide timely notification shall not limit Sublessee's
indemnification obligations hereunder unless such delay materially impairs
Sublessor's right of recovery with respect to such loss, cost, damage, expense
or liability.
19. SECURITY DEPOSIT
Upon its execution of this Sublease, Sublessee shall deposit with Sublessor, a
cash security deposit (the "Security Deposit") in the amount of One Thousand
Five Hundred Seventy Six and 67/100 Dollars ($1,576.67), which Sublessor may
draw upon to cure any default under this Sublease continuing beyond any
applicable notice and cure periods or to compensate Sublessor for any damage
Sublessor incurs as a result of Sublessee's failure to perform any of its
obligations hereunder. If Sublessee fails to pay rent or other charges due
hereunder, or otherwise defaults with respect to any provision of this Sublease
beyond any applicable notice and cure periods, Sublessor may use, apply, or
retain all or any portion of the Security Deposit for the payment of any rent or
other charge in default or for the payment of any sum to which Sublessor may
become obligated by reason of Sublessee's default, ox to compensate Sublessor
for any loss or damage which Sublessor may suffer thereby. If Sublessor draws on
the Security Deposit, within ten (10) days of such draw, Sublessee shall
replenish the Security Deposit so that the amount available to Sublessor from
the Security Deposit provided hereunder is the amount specified above.
Sublessee's failure to replenish the Security Deposit as required hereunder
within the tune specified herein shall constitute an Event of Default under this
Sublease and shall entitle Sublessor to draw the full amount of the Security
Deposit then in effect, in addition to any other rights at law, in equity or
pursuant to the Master Lease.
Provided there is no uncured default on the Expiration Date, any balance of the
Security Deposit not used, applied or retained by Sublessor as above provided,
shall be returned to Sublessee within fifteen days after the Sublease Expiration
Date and after delivery of possession of the entire Demised Premises to
Sublessor in accordance with the terms of this Sublease. Any interest that
accrues on the Security Deposit shall belong to Sublessor.
Sublessee covenants that it will not assign or encumber, or attempt to assign or
encumber, the Security Deposit and that neither Sublessor nor its successors or
assigns shall be bound by any such assignment, encumbrance, attempted
assignment, or attempted encumbrance. In the event that any bankruptcy,
insolvency, reorganization or other debtor-creditor proceedings shall be
instituted by or against the Sublessee, its successors or assigns, the Security
Deposit shall be deemed to be applied to the payment of the Sublease Rent and
additional rent due Sublessor for periods prior to the institution of such
proceedings and the balance, if any, may be retained by Sublessor in partial
satisfaction of Sublessor's damages.
20. TERMINATION OF MASTER LEASE.
In the event of the termination of the Master Lease prior to the Expiration hate
for any reason whatsoever, this Sublease shall simultaneously terminate without
any liability of Sublessor to Sublessee, except if such termination is due to
Sublessor's failure to perform any of its obligations under this Sublease or the
Master Lease. Sublessor covenants that Sublessor shall not voluntarily terminate
the Master Lease prior to the Expiration Date, or consent to any modification,
amendment or supplement to the Master Lease which will materially diminish
Sublessee's rights or increase Sublessee's obligations under this Sublease,
without Sublessee's prior written consent.
21. CAPTIONS
The captions, headings and titles, if any, in this Sublease arc solely for
convenience of reference and shall not affect its interpretation.
22. SUCCESSORS AND ASSIGNS.
Subject to the limitations set forth in Section 9 hereof arid Article 21 of the
Master Lease, the provisions of this Sublease shall extend to, bind and inure to
the benefit of the parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF, Sublessor and Sublessee have executed this Sublease as of
the date first written above.
THE DIALOG CORPORATION
By
Name:
Title:
XXXXXX MEDICAL, INC.
By
Name:
Title:
