SUBLEASE AGREEMENT
EXHIBIT 10
This
SUBLEASE (“Sublease”)
is
made this 8th
day of
April, 2005 between MICROSOFT BUSINESS SOLUTIONS CORPORATION, a Minnesota
corporation (“Sublandlord”),
and
SMART VIDEO TECHNOLOGIES, INC, a Delaware corporation (“Subtenant”).
RECITALS
A. Sublandlord
is the tenant under that certain lease agreement dated April 2, 2000
with
Xxxxx Equity, a Florida corporation as landlord (“Landlord”)
(the
“Master
Lease”),
for
space (the “Master
Space”)
located in the building (the “Building”)
described below:
|
Name
of Building:
|
Duluth
Building
|
|
Address:
|
0000
Xxxxx Xxxxxxxxx
|
|
Xxxx,
Xxxxx and Zip Code:
|
Xxxxxx,
Xxxxxxx 00000
|
|
A
copy of the Master Lease is attached as Exhibit
A.
|
|
B. The
Building, and the land on which the Building is located, and the common areas
in
the Building and on the land are referred to collectively as the Property (the
“Property”).
AGREEMENT
In
consideration of the covenants and promises contained in this Sublease, the
parties agree as follows:
1. Subleased
Premises.
Sublandlord agrees to sublease to Subtenant, and Subtenant agrees to sublease
from Sublandlord, that portion of the Master Space shown in Exhibit
B,
consisting of approximately 25,162 rentable square feet (the “Premises”).
In
addition to use of the Premises, Subtenant shall have the same rights of ingress
and egress to the Premises, and any common areas and the benefit of any
appurtenant easements and rights of way, all on such conditions and at such
times as permitted by Landlord and granted under the Master Lease.
1.1 Roof
Rights.
Sublandlord hereby assigns to Subtenant all of the rights of Sublandlord under
Section 28R of the Master Lease relating to the use, operation and
maintenance of a satellite dish on the roof of the Building, and Subtenant
hereby agrees to comply with all terms and conditions of such Section 28R.
Sublandlord will not unreasonably withhold, delay, or condition its consent
to
Subtenant’s adding additional satellite dishes, provided that the consent of
Landlord is obtained.
1.2 Parking.
Subtenant shall have the right to use 128 (5.1 stalls per 1,000 rentable square
feet) of the parking stalls allocated to Sublandlord under Section 28B
of
the Master Lease, on the terms and conditions set forth in such
Section 28B.
1.3 Furnishings
and Equipment.
In
addition to the sublease of the Premises under this Sublease and in further
consideration thereof, Sublandlord agrees to permit Subtenant to use all of
the
existing furniture, fixtures and equipment owned or leased by Sublandlord and
located in the Premises as of the date of this Sublease,
which
furniture will be listed on Exhibit C
attached
(collectively, the “Furniture”)
following completion of the inventory to be performed promptly after execution
of this Sublease. The parties acknowledge that such furniture is leased by
Sublandlord pursuant to a furniture lease (the “Furniture Lease”), and Subtenant
agrees to comply with all terms and conditions of the Furniture Lease during
the
term thereof. Sublandlord agrees to work with Subtenant to allow Subtenant
to
enter into a new lease of such furniture upon the expiration of the term of
the
Furniture Lease.
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2. Term.
This
Sublease shall commence on the last to occur of (a) full execution of
this
Sublease by the parties and execution of Landlord’s written consent to this
Sublease (“Commencement
Date”)
and,
subject to sooner termination in accordance with the terms of this Sublease,
shall terminate on August 31, 2007 (the “Term”).
If
Landlord has failed to deliver its written consent to this Sublease,
substantially in the form attached, by April 29, 2005, either party
shall
have the right to terminate this Sublease, by written notice delivered to the
other party within ten (10) days of such date and prior to delivery of
Landlord’s consent, in which event this Sublease shall be of no further force
and effect. If Sublandlord shall be unable to deliver possession of the Premises
on the Commencement Date for any reason whatsoever, Sublandlord shall not be
subject to any liability for such failure to deliver possession. Under such
circumstances Rent shall not commence unless and until full possession of the
Premises (free of all occupancies) has been delivered and no such failure to
give possession on the Commencement Date shall affect the validity of this
Sublease or the obligation of Subtenant hereunder.
3. Rent.
Subtenant agrees to pay Sublandlord annual rent in the amount of Two Hundred
Seventy-Six Thousand Seven Hundred Eighty-Two and No/100 Dollars ($276,782.00)
($11.00 per rentable square foot), payable in monthly installments of
Twenty-Three Thousand Sixty-Five and 17/100 Dollars ($23,065.17) (“Monthly
Rent”) in advance on the first day of each month without any prior demand and
without any deduction or offset whatsoever.
3.1 Additional
Rent.
Any and
all sums Subtenant is obligated to pay under the terms of this Sublease shall
be
construed as rent obligations in addition to the monthly rent set forth in
this
Sublease. In addition, such additional rent shall include a service charge
of
One Hundred Dollars ($100) for each of Subtenant's dishonored checks returned
by
the institution on which said checks are drawn. If, at any time during the
term
of this Sublease, Subtenant has tendered payment by check and Subtenant's bank
has returned more than one such payment for any reason, including insufficient
funds, Sublandlord may, at its option, require that all future payments be
made
by cashier's check.
4. Security
Deposit.
Subtenant has deposited with Sublandlord the sum of Ninety-Two Thousand Two
Hundred Sixty and 68/100 Dollars ($92,260.68), which shall be held by
Sublandlord as a security deposit for Subtenant's performance of all of the
terms, covenants and conditions of this Sublease (the “Security
Deposit”).
If
Subtenant defaults under any provision of this Sublease, Sublandlord may (but
shall not be required to) use, apply or retain all or any part of this Security
Deposit for the payment of any amount Sublandlord may spend by reason of
Subtenant's default or to compensate Sublandlord for any loss or damage
Sublandlord may suffer because of Subtenant's default. If any portion of the
Security Deposit is so used or applied, Subtenant shall, within ten (10) days
after written demand, deposit cash with Sublandlord in an amount sufficient
to
restore the Security Deposit to its original amount. Sublandlord is not required
to keep the Security Deposit separate from its general funds, and Subtenant
is
not entitled to interest on the Security Deposit. If Subtenant performs each
of
its obligations under this Sublease, the Security Deposit, or any balance
thereof, shall be returned to Subtenant within sixty (60) days after the later
of the expiration of the Sublease term or the date Subtenant vacates the
Premises. If Subtenant does not default hereunder during the first
twelve (12) months of the Term, Sublandlord shall apply a portion of
the
Security Deposit to the payment of the Monthly Rent for the thirteenth month
of
the Term. If Subtenant does not default hereunder during the first twenty-four
(24) months of the Term, Sublandlord shall apply a portion of the Security
Deposit to the payment of the Monthly Rent for the twenty-fifth month of the
Term.
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5. Alterations.
Subtenant shall not make any improvements in or alterations or additions
(collectively, “Alterations”)
to the
Premises without first obtaining Sublandlord's written consent. All Alterations
shall be at the sole cost and expense of Subtenant and, except for Subtenant's
trade fixtures, furniture and equipment, shall become the property of
Sublandlord and shall remain in and be surrendered with the Premises at the
termination of this Sublease (unless Subtenant has entered into a direct lease
of the Premises with Landlord the term of which continues beyond the expiration
of the Term (a “Direct Lease”). Any alteration approved in writing by
Sublandlord shall not be subject to removal upon the termination of the Sublease
unless such requirement is stated at the time approval is given by Sublandlord
in writing. Should Sublandlord require in writing at time of approval, or should
Subtenant make alterations without attaining Sublandlord’s required written
consent, Sublandlord may elect to require Subtenant to remove from the Premises
such Alterations upon the termination of the Sublease, and upon any such
election Subtenant shall promptly do so and shall repair all damages occasioned
by such removal and return the Premises to their original condition to
Sublandlord's reasonable satisfaction, all at Subtenant's sole cost and
expense.
All
Alterations undertaken by Subtenant shall be performed by a contractor approved
in advance by Sublandlord, according to plans approved in advance by
Sublandlord. Subtenant shall cause all work to be done in a good and workmanlike
manner using materials equal to or better than those used in the construction
of
the Premises and shall comply with or cause compliance with all laws and with
any direction given by any public officer pursuant to law, including, without
limitation, Title III of the Americans with Disabilities Act of 1990
(“ADA”),
as
the same are in effect on the date hereof and may be hereafter modified, amended
or supplemented. During construction, Subtenant or its general contractor shall
procure and maintain in effect all insurance coverages required under the Master
Lease and any additional insurance coverage required by Sublandlord at its
sole
discretion.
Notwithstanding
the foregoing, Sublandlord agrees not to unreasonably withhold, condition or
delay its consent to any alterations proposed by Subtenant, provided that
(i) such alterations comply with all requirements of the Master Lease,
and
(ii) such alterations are approved by Landlord pursuant to the Master
Lease.
6. Condition
of Premises.
Subtenant has thoroughly inspected the Premises and accepts them in their
present condition, AS IS WITH ALL FAULTS. Subtenant acknowledges that neither
Sublandlord nor any agent of Sublandlord has made any representation as to
the
condition of the Premises or their suitability for the conduct of Subtenant's
business. Subtenant and Sublandlord expressly agree that there are and shall
be
no implied warranties of merchantability, habitability, fitness for a particular
purpose or any other kind arising out of this Sublease, and there are no
warranties that extend beyond those expressly set forth in this Sublease. Prior
to delivery of the Premises to Subtenant, Sublandlord shall remove all personal
items and property (other than the Furniture) from the Premises and ensure
that
the Premises is in a clean janitorial condition.
7. Landlord's
Services.
Under
the Master Lease Landlord is obligated to provide Sublandlord with certain
operating services, maintenance and repairs (collectively, “Landlord's
Services”).
To
the extent Landlord's Services apply to the Premises, Subtenant shall have
the
benefit of such services. Subtenant shall pay directly to Landlord, or, at
Sublandlord’s option, to Sublandlord, all charges imposed by the Master Lease
for any such services provided by Landlord outside of normal operating hours
or
in addition to services ordinarily provided to tenants of the Building (e.g.,
after-hours HVAC services) as provided in Section 9 of the Master Lease,
and including, without limitation, all charges for supplemental HVAC separately
metered to the Master Space pursuant to Section 28S of the Master Lease.
Sublandlord has no obligation to furnish any of Landlord's Services and will
not
be liable for any disruption or failure of such services. Upon receipt of
written complaint from Subtenant, Sublandlord shall make demand upon Landlord
to
take all appropriate action for the correction of any defect, inadequacy or
insufficiency in Landlord's provision of Landlord's Services. If necessary,
upon
written request of Subtenant, Sublandlord shall enforce its rights under the
Master Lease to Landlord's Services for Subtenant's benefit by litigation,
in
which event Subtenant shall reimburse Sublandlord for the costs and expenses
of
such enforcement to the extent such costs and expenses are not recovered from
Landlord.
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8 Maintenance
of Premises.
Subtenant shall, at its expense, maintain the Premises, including, without
limitation, all improvements to the Premises, in good order, condition and
repair to the same extent required of Sublandlord under the Master Lease,
excepting only reasonable wear and tear.
9. Use.
Subtenant shall use the Premises as a business office as described in Section
4
of the Master Lease only and for no other purposes whatsoever. Subtenant shall
not do or permit anything to be done in or about the Property that will in
any
way interfere with the rights of Sublandlord or other occupants of the Building,
or injure or annoy them, or use or allow the Property to be used for any
improper, immoral, unlawful or objectionable purpose; nor shall Subtenant cause,
maintain or permit any nuisance in, on or about the Property. Subtenant shall
not commit or suffer to be committed any waste in or about the
Property.
10. Sign
Restriction.
No
sign, picture, advertisement or notice shall be displayed, inscribed, painted
or
affixed to any door, wall or woodwork without Sublandlord's prior consent,
which
shall not be unreasonably withheld.
11. Locks.
No
additional locks shall be placed upon any doors of the Premises or Master Space
without Sublandlord's consent, which shall not be unreasonably withheld. At
the
termination of the Sublease, Subtenant shall surrender to Sublandlord all keys
and security cards to the Premises and Master Space, unless Subtenant has
entered into a Direct Lease.
12. Defaults.
Any of
the following occurrences shall constitute a default by Subtenant:
12.1 Failure
to Pay Money When Due.
If
Subtenant fails to make any payment of rent, additional security deposit or
any
other payment required to be made by Subtenant hereunder, as and when due,
for a
five (5) day period after written notice from Sublandlord.
12.2 Other
Breaches.
If
Subtenant fails to observe or perform any other provision of this Sublease,
including compliance with Landlord's Rules and Regulations, for a
fifteen (15) day period after written notice from Sublandlord. The
fifteen (15) day grace period shall not apply to Sublandlord’s right to
exercise remedies under Section 13.1 with respect to Subtenant’s breach of its
obligations to maintain unexpired insurance coverages in full compliance with
Sections 5 and 14 of this Sublease.
13. Remedies.
If
Subtenant commits a default under this Sublease and has not cured such default
within the time periods set forth in Section 12,, Sublandlord may do any one
or
more of the following, in addition to pursuing its remedies under
law:
13.1 Cure
the
default and charge the costs to Subtenant, in which case Subtenant shall pay
such costs as additional rent promptly on demand, together with interest thereon
at the rate of twelve percent (12%) per year or the highest rate permitted
by
law, whichever is less.
13.2 Terminate
this Sublease.
13.3 Enter
and
take possession of the Premises and remove Subtenant and all other persons
and
any property from the Premises, with process of law.
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13.4 Hold
Subtenant liable for and collect rent and other indebtedness owed by Subtenant
to Sublandlord or rent that would have accrued during the remainder of the
term
had there been no default, less any sums Sublandlord receives by reletting
the
Premises.
13.5 Hold
Subtenant liable for that part of the following sums paid by Sublandlord that
are attributable to the remainder of the term:
(a) Customary
broker's fees incurred by Sublandlord in reletting part or all of the
Premises;
(b) The
cost
of removing and storing Subtenant's property;
(c) The
cost
of repairs and alterations reasonably necessary to put the Premises in a
condition reasonably acceptable to a new subtenant; and
(d) Other
necessary and reasonable expenses incurred by Sublandlord in enforcing its
remedies.
Sublandlord
shall mitigate its damage by making reasonable efforts to relet the Premises
on
reasonable terms. Sublandlord may relet for a shorter or longer period of time
than the Sublease term and make reasonably necessary repairs and alterations.
All sums collected from reletting shall be applied first to Sublandlord's
expenses of reletting described in Section 13.5, and then to the payment
of
amounts due from Subtenant to Sublandlord under this Sublease.
14. Insurance.
Subtenant shall, during any period of occupancy, at its sole cost and expense,
keep in full force and effect the following insurance:
14.1 Liability
Insurance.
A
policy of general commercial liability insurance satisfying the requirements
of
the Master Lease regarding insurance to be carried by Sublandlord and naming
both Sublandlord and Landlord as additional insureds. Such liability policy
shall (a) insure against any and all claims or liability arising out of the
use
or maintenance of the Property under this Sublease, in an amount not less than
Two Million Dollars ($2,000,000) per occurrence covering bodily injury to
persons, including death, and damage to property; (b) insure the hazards of
the
Property and Subtenant's operations thereon, independent contractors,
contractual liability (covering all indemnity provisions of this Sublease);
and
(c) contain a cross-liability provision and a provision that the insurance
provided Sublandlord and Landlord hereunder shall be primary and
non-contributing with any other insurance.
14.2 Property
Damage Insurance.
A fire
and extended coverage insurance policy on the improvements to the Premises
satisfying the requirements of the Master Lease, if any, regarding insurance
to
be carried by Sublandlord and naming both Sublandlord and Landlord as additional
insureds as their interests may appear. Such policy shall (a) be a standard
form
of property insurance insuring against the perils of fire, extended coverage,
vandalism, malicious mischief, special extended coverage (“All-Risk”)
and
sprinkler leakage, and (b) be upon all property owned by Subtenant, or for
which
Subtenant is legally liable, or that was installed at Subtenant's expense,
and
that is located at the Premises, including, but not limited to, furniture,
fittings, installations, fixtures, and any other personal property of Subtenant,
in an amount not less one hundred percent (100%) of the full replacement cost
thereof.
14.3 General
Requirements.
All
policies shall be written in a form (including amount of deductibles, if any)
satisfactory to Sublandlord and shall be taken out with insurance companies
holding a General Policyholders Rating of “A” and a Financial Rating of “X” or
better, as set forth in the most current issue of Best's Insurance Reports,
but
in any event not less than the rating required under the Master
Lease.
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Within
ten (10) days after the execution of this Sublease, Subtenant shall deliver
to
Sublandlord copies of policies or certificates complying with this Sublease,
in
form satisfactory to Sublandlord. No such policy shall be cancelable or
reducible in coverage except after thirty (30) days prior written notice to
Sublandlord. If Subtenant fails to obtain, maintain and/or provide evidence
of
insurance required hereunder, Sublandlord may obtain the same and Subtenant
shall, upon demand, reimburse Sublandlord for the cost thereof. No such action
by Sublandlord or reimbursement from Subtenant shall be a waiver of default
or
other remedies. In no event shall the limits of such policies be considered
as
limiting liability of Subtenant under this Sublease.
15. Waiver
of Recovery.
Sublandlord and Subtenant each release and relieve the other, and waive their
entire rights of recovery for loss or damage to property located within or
constituting a part or all of the Property to the extent that the loss or damage
is covered by (a) the injured party's insurance, or (b) the insurance
the injured party is required to carry under Section 14, whichever is greater.
This waiver applies whether or not the loss is due to the negligent acts or
omissions of Sublandlord or Subtenant, or their respective officers, directors,
employees, agents, contractors, or invitees. Each of Sublandlord and Subtenant
shall have their respective property insurers endorse the applicable insurance
policies to reflect the foregoing waiver of claims, provided, however, that
the
endorsement shall not be required if the applicable policy of insurance permits
the named insured to waive rights of subrogation on a blanket basis, in which
case the blanket waiver shall be acceptable.
16. Risk.
Except
as otherwise expressly provided in this Section 16, all of Subtenant's personal
property of any kind or description whatsoever in the Property shall be at
Subtenant's sole risk. Sublandlord and Landlord shall not be liable for any
damage done to or loss of such personal property, injury to person or damage
or
loss suffered by the business or occupation of Subtenant arising from any acts
or neglect of co-tenants or other occupants of the Building, or of any other
persons, or from bursting, overflowing or leaking of water, sewer or steam
pipes, or from the heating or plumbing or sprinkler fixtures, or from electric
wires, or from gas, or odors, or caused in any other manner whatsoever unless
and to the extent the damage is caused by the willful misconduct of Sublandlord
or breach of Sublandlord's obligations under this Sublease.
17. Liability
of Sublandlord.
Sublandlord shall have no personal liability under this Sublease. Subtenant
shall look solely to rents, issues and profits from the Premises for the
satisfaction of any judgment or decree against Sublandlord based upon any
default under this Sublease, and no other property or assets of Sublandlord
shall be subject to levy, execution or other enforcement procedures for
satisfaction of any such judgment or decree.
18. Indemnification.
Subject
to Section 15 above, Subtenant will defend, indemnify and hold harmless
Sublandlord and Landlord from any claim, liability or suit, including attorney
fees, on behalf of any party for any injury or damage occurring in or about
the
Master Space where such damage or injury was caused by any act, omission,
negligence or intentional act of Subtenant or by Subtenant's agents, employees,
servants, customers, clients, contractors, or invitees. Subject to Section
15
above, Sublandlord will defend, indemnify and hold harmless Subtenant from
any
claim, liability or suit, including attorney fees, on behalf of any party for
any bodily injury or property damage occurring in or about the Master Space
to
the extent the damage or injury was caused by the negligence of Sublandlord,
its
agents, employees, servants, customers or clients. The indemnification
obligations contained in this Section shall not be limited by any worker's
compensation, benefit or disability laws, and each indemnifying party hereby
waives any immunity that the indemnifying party may have under any such worker's
compensation, benefit or disability laws. SUBLANDLORD
AND SUBTENANT ACKNOWLEDGE BY THEIR EXECUTION OF THIS SUBLEASE THAT EACH OF
THE
INDEMNIFICATION PROVISIONS OF THIS LEASE (SPECIFICALLY INCLUDING BUT NOT LIMITED
THOSE RELATING TO WORKER'S COMPENSATION BENEFITS AND LAWS) WERE SPECIFICALLY
NEGOTIATED AND AGREED TO BY SUBLANDLORD AND SUBTENANT.
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19. Casualty
& Condemnation.
Under
certain circumstances described in the Master Lease, either Landlord or
Sublandlord may terminate the Master Lease if there is a fire or other casualty
damaging the Building or the Premises, or if there is a condemnation affecting
the Building. Any such termination will automatically terminate this Sublease.
If there is a fire or other casualty in the Premises that materially damages
the
Premises, either party may elect to terminate this Sublease within thirty (30)
days following occurrence of the damage. Sublandlord's obligation to repair
any
damage to the Premises is limited to its obligation to do so under the Master
Lease.
Rent
will
xxxxx in proportion to the loss of use of the Premises caused by fire or other
casualty.
20. Master
Lease.
20.1 Good
Standing.
Sublandlord represents and warrants that (a) the Master Lease is in good
standing, (b) there are no agreements other than the Master Lease between
Landlord and Sublandlord concerning the use of the Premises, and (c) to
Sublandlord’s actual knowledge, Sublandlord has not received notice of any
breach or default of the Master Lease by Sublandlord that has not been cured
as
of the date of this Sublease.
20.2 Subordination.
This
Sublease is subject and subordinate to the Master Lease, to all ground and
underlying leases, and to all mortgages and deeds of trust which may now or
hereafter affect the Property, and to any and all renewals, modifications,
consolidations, replacements and extensions thereof. Sublandlord agrees not
to
effect any termination of the Master Lease without the written consent of
Subtenant (which consent shall not be unreasonably withheld, conditioned or
delayed and shall be deemed granted if not refused within ten (10) days of
written request), for so long as Subtenant has not been in default hereunder.
Subtenant agrees, upon request of Sublandlord, at any time or times, to execute
and deliver to Sublandlord any and all instruments as shall be required by
Landlord to effect a subordination of this Sublease to the lien of Landlord’s
Mortgagee (as defined in Section 15 of the Master Lease) in accordance
with
and subject to the terms of Section 15 of the Master Lease.
20.3 Adherence
to Terms of Master Lease.
Subtenant agrees to be bound by all obligations and responsibilities of
Sublandlord as tenant under the Master Lease. Subtenant shall neither do nor
permit anything to be done that would cause the Master Lease to be terminated
or
forfeited by reason of any right of termination or forfeiture reserved or vested
in Landlord under the Master Lease.
21. Right
of Entry.
Upon
reasonable prior notice to Subtenant (except in the case of emergency),
Sublandlord shall have the right to enter the Premises.
22. Rules
and Regulations.
Subtenant shall observe at all times the rules and regulations promulgated
by
Landlord that are applicable to the Premises or any occupant
thereof.
23. Subletting
/ Assignment.
Subtenant shall not sublet the Premises or assign this Sublease or any part
thereof for any period of time without the prior consent of the Master Landlord
and without Sublandlord’s prior consent. Such consent by Sublandlord shall not
be unreasonably withheld, conditioned, or delayed except: (a) Sublandlord may
withhold in its absolute and sole discretion consent to any mortgage,
hypothecation, pledge or other encumbrance of any interest in this Sublease
or
the Premises by Subtenant, whereby this Sublease or any interest therein becomes
collateral for any obligation of Subtenant; and (b) Sublandlord may withhold
in
its absolute and sole discretion consent if Master Landlord does not consent
to
the proposed transfer. It is agreed that any of the following factors, or any
other reasonable factor, will be reasonable grounds for Sublandlord deciding
whether to consent to Subtenant’s request: (i) occupancy by any proposed
assignee, subtenant or other transferee is not consistent with the maintenance
and operation of a Class A office building due to the nature of the proposed
occupant's business or the manner of conducting its business or its experience
or reputation in the community, (ii) occupancy by any proposed assignee,
subtenant or other transferee is likely to cause disturbance to the normal
use
and occupancy of the Building by Sublandlord or other occupants; and (iii)
notwithstanding that Subtenant or others remain liable under this Sublease,
whether the proposed assignee, subtenant or other transferee has a net worth,
financial strength and credit record satisfactory to meet all of the obligations
of Subtenant under this Sublease.
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Notwithstanding
the foregoing, Sublandlord agrees that an assignment of this Sublease or a
sub-subletting of all or part of the Premises to (a) the parent of Subtenant
or
to a wholly owned subsidiary of Subtenant or of such parent, (b) any corporation
in whom or with which Subtenant may be merged or consolidated, or (c) any entity
to whom Subtenant sells all or substantially all of its assets, provided that
in
each such instance such entity expressly assumes all of Subtenant’s obligations
hereunder and has a net worth at least equal to the greater of (i) the net
worth
of Subtenant on the date hereof or (ii) the net worth of Subtenant immediately
prior to such assignment or transaction. With respect to the transactions
described in clauses (a) and (b) above, such net worth may be on a consolidated
basis with Subtenant’s affiliated entity.
No
subletting, assignment or other transfer under this Article 24 shall relieve
Subtenant of any liability under this Sublease, and no consent to any such
transfer shall operate as a waiver of the necessity for consent to a subsequent
transfer. Subtenant promptly shall provide Sublandlord with copies of any
instruments of transfer.
24. Notice.
Any
notice regarding a breach of this Sublease or termination thereof shall be
in
writing and be sent by certified mail or personally delivered to the
following:
In
the
case of Sublandlord:
Microsoft
Business Solutions Corporation
Xxx
Xxxxxxxxx Xxx
Xxxxxxx,
XX 00000
Attn: _________________
with
a
copy to:
Microsoft
Corporation
Xxx
Xxxxxxxxx Xxx
Xxxxxxx,
XX 00000
Attn:
Xxx
Xxxxxx
Law
&
Corporate Affairs
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Or,
in
the case of Subtenant:
If
prior
to delivery of the Premises:
Smart
Video Technologies, Inc.
0000
Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx,
Xxxxxxx 00000
Attn:
Xxxxxxx Xxxxxxx
If
after delivery of the Premises:
Smart
Video Technologies, Inc.
0000
Xxxxx Xxxx - Xxxxx 000
Xxxxxx,
Xxxxxxx 00000
Attn :
Xxxxxxx Xxxxxx
with
a
copy to:
_________________________
_________________________
_________________________
Attn:_____________________
Notice
shall be deemed given when so delivered to Sublandlord or Subtenant, or on
the
date delivery is refused, or three (3) days after it is placed, properly
addressed with postage prepaid, in a depository for United States certified
mail. Either party may provide for a different address by notifying the other
party of said change as provided for herein. Subtenant agrees to deliver to
Sublandlord, simultaneously with delivery to Landlord, a copy of any notice,
demand, request, consent or approval Subtenant sends to Landlord. Each party
agrees to promptly deliver to the other party a copy of any notice, demand,
request, consent or approval received from Landlord and not transmitted directly
to such other party which is relevant on its face to the rights and obligations
hereunder of the other party.
25. Estoppel
Certificate.
Upon
Sublandlord's request, at any time and from time to time, Subtenant shall
execute and deliver to Sublandlord:
25.1 An
estoppel in favor of Landlord and Sublandlord in accordance with and subject
to
the terms of Section 15 of the Master Lease, and
25.2 Within
fifteen (15) business days after receipt of the request, a written instrument,
duly executed in favor of Sublandlord:
(a) Certifying
that this Sublease has not been amended or modified and is in full force and
effect or, if there has been a modification or amendment, that this Sublease
is
in full force and effect as modified or amended, and stating the modifications
or amendments;
(b) Specifying
the date to which the rent has been paid;
(c) Stating
whether, to Subtenant's best knowledge, Sublandlord is in default and, if so,
stating the nature of the default; and
(d) Stating
the commencement date of the term.
26. Surrender
of Premises.
Subtenant shall, on the last day of the term of this Sublease, or upon any
earlier termination and surrender to Sublandlord the Premises and all
improvements to the Premises broom clean in good order, condition and state
of
repair, reasonable wear and tear excepted. provided, however, that Subtenant
shall not be required to surrender the Premises to Sublandlord if Subtenant
has
entered into a Direct Lease.
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27. Holding
Over.
If
Subtenant holds over after expiration or termination of this Sublease without
written consent of Sublandlord (which consent may be withheld in Sublandlord’s
sole judgment), Subtenant shall pay two (2) times the fixed minimum
monthly
rental in effect during the last month hereof and all other charges due
hereunder for each month or any part thereof of any such holdover period. No
holding over by Subtenant after the term of this Sublease shall operate to
extend the Sublease term. In the event of any unauthorized holding over,
Subtenant shall indemnify Sublandlord against all costs and claims for damages,
including, without limitation, any claims for damages by any other tenant to
whom Landlord may have leased all or any part of the Premises.
If
Subtenant holds over after expiration of the term of this Sublease, or after
the
Sublease is terminated, with Sublandlord's consent, Subtenant shall be deemed
to
be occupying the Premises under a month-to-month tenancy, and subject to all
the
terms, covenants and conditions of this Sublease (other than the term), except
that minimum monthly rent shall be one hundred fifty percent (150%) of the
minimum monthly rent for the last month of the term and the tenancy shall be
terminable by either party on twenty (20) days written notice to the other
party, effective as of the last day of a calendar month.
28. Consent
by Sublandlord.
Whenever Sublandlord's consent or approval is required under this Sublease,
such
consent or approval may be withheld at Sublandlord's sole discretion, except
as
otherwise expressly provided in this Sublease.
29. Successors
and Assigns.
Subject
to the restriction contained in Section 23, the covenants and conditions
contained in this Sublease shall bind the heirs, successors, executors,
administrators and assigns of the parties.
30. Brokers.
Sublandlord and Subtenant each represents and warrants to the other that, other
than Xxxxx Xxxx LaSalle, which represents Sublandlord, and The Staubach Company
- Southeast, Inc, which represents Subtenant, it did not deal with any broker
in
connection with this transaction. Each party agrees to indemnify and defend
the
other against any loss, cost or liability, including, without limitation,
attorneys’ fees, in connection with the claims of any broker arising from such
party’s acts.
31. Attorney
Fees.
In the
event legal proceedings are initiated to enforce any provision of this Sublease,
to recover any rent due under this Sublease, for the breach of any covenant
or
condition of this Sublease, or for the restitution of the Premises to the
Sublandlord and/or eviction of the Subtenant, the prevailing party shall be
entitled to recover, as an element of its cost of suit and not as damages,
reasonable attorney fees and costs to be fixed by the court.
32. Entire
Agreement, Merger and Waiver.
This
Sublease supersedes and cancels all previous negotiations, arrangements, offers,
agreements or understandings, if any, between the parties. This Sublease
expresses and contains the entire agreement of the parties and there are no
express or implied representations, warranties or agreements between them,
except as contained in this Sublease. This Sublease may not be modified, amended
or supplemented except by a writing signed by both Sublandlord and Subtenant.
No
consent given or waiver made by Sublandlord of any breach of Subtenant of any
provision of this Sublease shall operate or be construed in any manner as a
waiver of any subsequent breach of the same or of any other
provision.
33. Captions.
The
captions of this Sublease are provided for convenience only and shall not be
used in construing its meaning.
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34. Severability.
If any
provision of this Sublease is found to be unenforceable, the remainder of this
Sublease shall not be affected thereby.
35. Authority.
Each
individual executing this Sublease on behalf of Subtenant represents and
warrants that he or she is duly authorized to execute and deliver this Sublease
on behalf of Subtenant and that this Sublease is binding upon Subtenant
according to its terms. Concurrently with execution of this Sublease, Subtenant
shall deliver to Sublandlord such evidence of authorization as Sublandlord
may
require.
36. Sublandlord
and Subtenant Relationship Only.
Nothing
contained in this Sublease shall be construed to create the relationship of
principal and agent, partnership, joint venturer or any association between
Sublandlord and Subtenant.
37. Memorandum
of Lease.
This
Sublease shall not be recorded, and no memorandum of this Sublease shall be
recorded.
38. Consent
to Sublease by Landlord.
Sublandlord’s obligations under this Sublease are subject to the consent of
Landlord pursuant to the terms of the Master Lease. Accordingly, it shall be
a
condition precedent of Sublandlord’s obligations hereunder that Sublandlord has
obtained the consent of Landlord. Sublandlord shall pay any and all consent
fees
to which Landlord is entitled under the Master Lease. Sublandlord and Subtenant
hereby agree, for the benefit of Landlord, that this Sublease and Landlord’s
consent hereto shall not (a) be deemed to have amended the Master Lease in
any
regard (unless Landlord shall have expressly agreed in writing to such
amendment); or (b) be construed as a waiver of Landlord’s right to consent to an
assignment of the Master Lease by Sublandlord or any further subletting of
the
Master Space, as and to the extent provided in the Master Lease. Landlord’s
consent shall, however, be deemed to evidence Landlord’s agreement that
Subtenant shall be entitled to any waiver of claims and of the right of
subrogation for damage to Landlord’s property if and to the extent that the
Master Lease provides such waivers for the benefit of Sublandlord.
39. Environmental.
39.1 Neither
Subtenant nor its officers, directors, agents, contractors, employees or
invitees will use, generate, manufacture, produce, store, release, discharge
or
dispose of on, under or about the Premises, or off-site the Premises affecting
the Property, or transport to or from the Premises, any Hazardous Substance
except in compliance with Environmental Laws. The term “Hazardous
Substance”
means
any hazardous or toxic substance, material or waste, pollutants or contaminants,
as defined, listed or regulated now or in the future by any federal, state
or
local law, ordinance, code, regulation, rule, order or decree regulating,
relating to or imposing liability or standards of conduct concerning, any
environmental conditions, health or industrial hygiene, including without
limitation, (a) chlorinated solvents, (b) petroleum products
or
by-products, (c) asbestos and (d) polychlorinated biphenyls.
The term
“Environmental
Law”
means
any federal, state or local law, statute, ordinance, regulation or order
pertaining to health, industrial hygiene, environmental conditions or hazardous
substances or materials including those defined in this Article as “Hazardous
Substances.”
39.2 Subtenant
shall give prompt written notice to Sublandlord and Landlord of: any proceeding
or inquiry by any governmental authority with respect to the presence of any
Hazardous Substance on the Premises; all claims made or threatened by any third
party against Subtenant or the Premises relating to any loss or injury resulting
from any Hazardous Substance; and Subtenant's discovery of any occurrence or
condition on the Premises that could cause the Premises or any part thereof
to
be subject to any restrictions on occupancy, or use of the Premises under any
Environmental Law.
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39.3 Subtenant
shall protect, indemnify, defend and hold harmless Sublandlord and Landlord
and
their directors, partners, officers, employees, agents, parents, subsidiaries,
successors and assigns from any loss, damage, cost, expense or liability
(including reasonable attorneys' fees and costs) directly or indirectly arising
out of or attributable to the use, generation, manufacture, production, storage,
release, discharge, disposal or presence of a Hazardous Substance on the
Premises or off-site of the Premises affecting the Property caused by Subtenant
or its directors, partners, officers, employees, agents, contractors and
invitees, including without limitation, the costs of any required or necessary
repairs, cleanup or detoxification of the Premises and the preparation and
implementation of any closure, remedial or other required plans.
40. Waiver
of Trial by Jury.
Sublandlord and Subtenant each agree to and they hereby do waive trial by jury
in any action, proceeding or counterclaim brought by either of the parties
hereto against the other on any matters whatsoever arising out of or in any
way
connected with this Sublease, the relationship of Sublandlord and Subtenant,
Subtenant's use or occupancy of the Premises and/or any claim of injury or
damage, and any statutory remedy.
IN
WITNESS WHEREOF, the parties hereto have executed this Sublease as of the date
set forth on page 1 hereof.
SUBTENANT:
SMART
VIDEO TECHNOLOGIES, INC.,
a
Delaware corporation
By: /s/
Xxxxxxx X. Xxxxxxx, Xx.
Name: Xxxxxxx
X. Xxxxxxx, Xx.
Title: President
& CEO
SUBLANDLORD:
MICROSOFT
BUSINESS SOLUTIONS
CORPORATION, a Minnesota corporation
CORPORATION, a Minnesota corporation
By: /s/
Xxxxx X. Xxxxx
Name: Xxxxx
X. Xxxxx
Title: General
Manager Real Estate & Facilities
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