SUBLEASE BETWEEN
HEALTHCARE INTEGRATED SERVICES, INC., SUBLANDLORD
AND
PRESGAR IMAGING OF HIGHWAY, L.L.C., SUBTENANT
SUBLEASE made as of the 22nd day of November, 2000, by and
between HEALTHCARE INTEGRATED SERVICES, INC. (f/k/a Healthcare Imaging Services,
Inc.), a Delaware corporation, having an office at Shrewsbury Executive Center
II, 0000 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 ("Sublandlord"), and PRESGAR
IMAGING OF HIGHWAY, L.L.C., a New York limited liability company, having an
office at 00000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxx, Xxxxxxx 00000 ("Subtenant").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS:
A. By lease dated Xxxxxxxxx 00, 0000 (xxx "Xxxxxxxxx"), XXX
Realty Company (the "Overlandlord") leased to Sublandlord the land and building
located at 0000 Xxxxxxxx Xxxxxx (a/k/a 0000/0000 Xxxx 00xx Xxxxxx, a/k/a 4419
Avenue N), Brooklyn, New York (the "Premises"). A copy of the Xxxxxxxxx (from
which certain terms unrelated to Subtenant's obligations hereunder have been
deleted) has been furnished to and reviewed by Subtenant and is annexed hereto
as Exhibit A.
B. Pursuant to Asset Purchase Agreement dated November 22,
2000, Sublandlord is selling to Subtenant and Subtenant is purchasing from
Sublandlord certain of Sublandlord's assets used in connection with its business
operated at the Premises (the "Agreement").
C. In connection with the Agreement, Sublandlord and
Subtenant have agreed to the subleasing of the Premises on the terms and
conditions set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, it is hereby agreed as follows:
1. Term and Rent
1.1 Sublandlord hereby leases to Subtenant and Subtenant
hereby hires from Sublandlord the Premises for a term (the "Sublease Term") to
commence on the date hereof ("Sublease Commencement Date") and to end on
September 29, 2008 ("Sublease Expiration Date") unless sooner terminated
pursuant to any of the conditions or covenants of this Sublease, the Xxxxxxxxx
or pursuant to law.
1.2 Subtenant shall pay to Sublandlord monthly base rent in
the amount of TWENTY ONE THOUSAND ONE HUNDRED FORTY-NINE AND 26/100 ($21,149.26)
DOLLARS to be paid by Subtenant to Sublandlord, by wire transfer or check to
Sublandlord's account at Summit Bank (or such other account as Sublandlord shall
designate), in advance, on
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the twenty-fifth (25th) day of each month, which payment shall be applicable to
the next succeeding month without any notice or demand therefor or any set-off,
abatement, counterclaim or reduction whatsoever. If so directed by Sublandlord,
Subtenant shall make payments under this Sublease directly to Overlandlord.
Sublandlord shall provide a copy, or other evidence, of each rental payment made
by it to the Overlandlord under the Xxxxxxxxx within two (2) business days of it
making such payment. In the event that Sublandlord fails to make any such rental
payment, Subtenant shall be entitled to make such payment directly to the
Overlandlord and offset such payment against the sums that are next due to
Sublandlord under this Sublease.
2. Incorporation of Xxxxxxxxx.
--------------------------
2.1 Except as otherwise expressly provided herein and except
to the extent same are inapplicable or are modified by the provisions of this
Sublease, all of the terms, covenants, conditions and provisions of the
Xxxxxxxxx are hereby incorporated in, and are made a part of this Sublease, and
such rights and obligations as are contained in the Xxxxxxxxx are hereby imposed
upon the respective parties hereto; the Sublandlord being substituted for the
Lessor named in the Xxxxxxxxx, and the Subtenant being substituted for the
Lessee named in the Xxxxxxxxx. Notwithstanding the foregoing, Sublandlord shall
not be liable for any obligations of Overlandlord and no representation or
warranty of the Overlandlord shall be deemed to be a representation or warranty
of Sublandlord and no breach of any such representation or warranty shall give
rise to any liability or obligation on the part of Sublandlord. If the Xxxxxxxxx
shall be terminated during the Sublease Term for any reason or no reason
whatsoever, this Sublease shall thereupon automatically terminate and
Sublandlord shall have no liability to Subtenant by reason thereof. Upon the
expiration or sooner termination of this Sublease, Subtenant will immediately
surrender the Premises to Sublandlord in good condition and repair, reasonable
wear and tear and repairs that are the obligation of Overlandlord excepted.
2.2 Notwithstanding the provisions of Section 2.1 of this
Sublease to the contrary, for purposes of this Sublease, the following
provisions of the Xxxxxxxxx shall not be deemed incorporated herein or made a
part hereof: Article 1, the first paragraph of Article 3, Section 5.1 and
Section 17.1. Paragraph 15(A) of the Xxxxxxxxx shall be modified by deleting
therefrom all references to "Exhibit A" and the "Permitted Sublease". References
in Section 9.3 and paragraph 9.1(f) of the Xxxxxxxxx to "Lessor" shall mean
Overlandlord and Sublandlord.
2.3 Neither Sublandlord nor Overlandlord, nor any partner,
director, officer, shareholder, principal, agent, servant or employee of either,
shall be liable to Subtenant for any loss, injury or damage to Subtenant or to
any other person, or to its or their property, irrespective of the cause of such
injury, damage or loss, except that Sublandlord shall be liable for any such
injury, damage or loss resulting from its or its employees' or agents' gross
negligence or wilful misconduct. Further, neither Sublandlord nor Overlandlord
nor any partner, director, officer, principal, shareholder, agent, servant or
employee of either shall be liable for any such damage caused by other tenants
or persons in, upon or about the Premises.
2.4 (A) Except as set forth in Section 1.2 of this Sublease, the time
limits contained in the Xxxxxxxxx for the giving of notices, making of demands
or performing of any
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act, condition, covenant or remedy including, but not limited to, the making of
any required payment on the part of the Lessee thereunder are, for the purposes
of incorporation herein by reference, reduced in each instance by three (3)
days, so that Subtenant shall have three (3) days less time to observe or
perform hereunder than Sublandlord has as the Lessee under the Xxxxxxxxx, unless
the time limit at issue is shorter than five (5) days, in which case the same
shall be shortened for purposes of this paragraph by one (1) day.
(B) Wherever in the Xxxxxxxxx the approval or consent of Overlandlord is
required, Subtenant shall be required to obtain the approval or consent of both
Overlandlord and Sublandlord. In no event shall Sublandlord be liable for any
failure of the Overlandlord to grant any approval or consent.
2.5 If any provisions in this Sublease are inconsistent with
the provisions of the Xxxxxxxxx, the provisions of this Sublease shall govern.
2.6 Sublandlord shall not be required to perform any work,
repairs or restoration to the Premises (including without limitation in the
event of a casualty) as may be required pursuant to the provisions of the
Xxxxxxxxx. Sublandlord shall in no event be liable to Subtenant nor shall the
obligations of Subtenant hereunder be impaired or the performance thereof
excused because of any failure, interruption or delay in the furnishing of any
services, facilities, repairs or restorations that may be supplied to the
Premises by Overlandlord or otherwise. If Overlandlord shall default in any of
its obligations with respect to the Premises, only Sublandlord shall have the
right to enforce Sublandlord's rights against Overlandlord, but Sublandlord
shall have no obligation to bring any action or proceeding or to take any other
steps to enforce Sublandlord's rights against Overlandlord.
3. Condition of Premises.
---------------------
3.1 Subtenant has examined the Premises, is aware of the
physical condition thereof, and agrees to take the same "as is," in its current
condition and state of repair, with the understanding that there shall be no
obligation on the part of Sublandlord to perform any work, supply any materials
or incur any expense whatsoever in connection with the preparation of the
Premises for Subtenant's occupancy thereof.
4. No Privity of Estate.
--------------------
4.1 Nothing contained in this Sublease shall be construed to
create privity of estate or contract between Subtenant and the Overlandlord.
Subtenant shall indemnify and hold harmless Sublandlord from and against any and
all claims, liabilities, demands, costs and expenses, including reasonable
attorneys fees, which may be asserted by Overlandlord against Sublandlord in
connection with this Sublease.
5. Subordination.
-------------
5.1 This Sublease is subject and subordinate to, and
Subtenant accepts this
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Sublease subject to: (a) the Xxxxxxxxx and (b) all ground or underlying leases
and all mortgages which may now or hereafter affect such leases or the real
property of which the Premises are a part and all renewals, modifications,
replacements and extensions of any of the foregoing. This Paragraph 5.1 shall be
self-operative and no further instrument of subordination shall be required. To
confirm such subordination, Subtenant shall execute any certificate that
Sublandlord may request within five (5) days after submission thereof to
Subtenant.
6. Broker.
------
6.1 Each of Sublandlord and Subtenant covenants, represents
and warrants that such party has had no dealings or communications with any
broker or agent in connection with the consummation of this Sublease, and each
of Sublandlord and Subtenant covenants and agrees to pay, hold harmless and
indemnify the other party from and against any and all cost, expense (including
reasonable attorneys' fees) or liability for any compensation, commissions or
charges claimed by any broker or agent with respect to the execution of this
Sublease or the negotiation thereof by such party.
7. Notices.
-------
7.1 Any notice, demand or communication which, under the terms
of this Sublease or under any statute or municipal regulation must or may be
given or made by the parties hereto, shall be in writing and unless otherwise
required by such law or regulation, shall be deemed to have been properly given,
rendered or made only if sent by (i) hand delivery with receipted delivery, or
(ii) certified mail, return receipt requested, or (iii) for next business day
morning delivery by a nationally recognized overnight courier service (e.g.,
Federal Express) requiring receipt for delivery, addressed to the party for whom
intended as follows:
If to Sublandlord:
HealthCare Integrated Services, Inc.
Shrewsbury Executive Center II
0000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxxxx Berlin Shereff Xxxxxxxx, LLP
The Chrysler Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Fax: (000) 000-0000
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and if to Subtenant as follows:
Presgar Imaging of Highway, L.L.C.
00000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxxx
Fax:
with a copy to:
Xxxx Xxxx Xxxxxxx Xxxxxx & Xxxx
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
Fax: (000) 000-0000
Either party, however, may designate such new or other address to which such
notices, demands or communications thereafter shall be given, made or mailed by
notice given in the manner prescribed herein. Any such notice, demand or
communication shall be deemed given or served, as the case may be, (x) if
delivered by hand, on the date of the receipt thereof, or in the case of refusal
to receive, as of the date of such refusal, or (y) on the second business day
following the day so mailed if mailed by registered or certified mail, or (z) on
the first business day following the date sent by a nationally recognized
overnight courier service.
7.2 Notices hereunder from Sublandlord may be given by Sublandlord's
attorneys.
8. Limitation of Liability.
-----------------------
8.1 Subtenant agrees to look solely to Sublandlord's estate
and interest in this Sublease and the Premises, for the satisfaction of any
right or remedy of Subtenant and the collection of any judgment (or other
judicial process) requiring the payment of money by Sublandlord, in the event of
any liability by Sublandlord. No other property or assets of Sublandlord shall
be subject to levy, execution, attachment, or other enforcement procedure for
the satisfaction of Subtenant's remedies under or with respect to this Sublease,
the relationship of Sublandlord and Subtenant hereunder, or Subtenant's use and
occupancy of the Premises, or any other liability of Sublandlord to Subtenant.
9. Landlord's Consent.
9.1 By executing this Sublease where indicated, Overlandlord hereby
consents to the Sublease herein.
10. [Intentionally Deleted]
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11. Miscellaneous.
-------------
11.1 This Sublease may not be changed orally, but only by an
agreement in writing signed by the party against whom enforcement of any waiver,
change, modification or discharge is sought.
11.2 This Sublease shall not be binding upon Sublandlord
unless and until it is signed by Sublandlord and a fully-executed counterpart
thereof has been delivered to Subtenant.
11.3 This Sublease constitutes the entire agreement between
the parties and all representations and understandings have been merged herein.
11.4 This Sublease shall inure to the benefit of all of the
parties hereto, their successors and (subject to the provisions hereof) their
assigns.
11.5 The term "Sublandlord" as used in this Sublease shall
mean only the Sublandlord named herein, so that in the event of any assignment
by Sublandlord of its interest in the Xxxxxxxxx, the Sublandlord named herein
shall be and hereby is entirely freed and relieved of all future covenants,
obligations and liabilities of Sublandlord hereunder, and it shall be deemed and
construed without further agreement between the parties or their successors in
interest that the assignee of the Xxxxxxxxx has assumed and agreed to carry out
any and all such covenants, obligations and liabilities of Sublandlord
hereunder.
11.6 Each party shall, at any time and from time to time, as
requested by the other party, execute and deliver to the other party within
fifteen (15) days after receipt of such request a statement (a) certifying that
this Sublease is unmodified and in full force and effect (or if modified, that
same is in full force and effect as modified and stating the modifications), (b)
certifying the dates to which rent has been paid, (c) stating whether or not, to
the best knowledge of the signing party, the other party is in default in
performance of any of its obligations under this Sublease, and, if so,
specifying each such default of which the signing party has knowledge, and (d)
stating whether or not, to the best knowledge of the signing party, any
condition or event exists which would constitute such a default, and, if so,
specifying each such condition or event, it being intended that any such
statement delivered pursuant hereto shall be deemed a representation and
warranty to be relied upon by the party requesting the certificate and by others
with whom such party may be dealing, regardless of independent investigation.
11.7 Sublandlord represents and warrants that, to its actual
knowledge, as of the date of this Sublease, neither the Overlandlord nor the
Sublandlord is in default under any term, covenant or condition in the
Xxxxxxxxx, and further that the Sublandlord shall not amend, alter, assign,
transfer or modify the Xxxxxxxxx in any way without the prior written consent of
the Subtenant (which consent shall not be unreasonably withheld or delayed).
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IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
as of the day and year first above written.
HEALTHCARE INTEGRATED SERVICES, INC.,
Sublandlord
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Chairman and CEO
PRESGAR IMAGING OF HIGHWAY, L.L.C.,
Subtenant
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title:
As to Article 9:
DVI REALTY COMPANY, Overlandlord
By: ___________________________
Name:
Title:
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EXHIBIT A
Xxxxxxxxx
[See following pages]
A-1
