SUBLEASE
Exhibit
10.4
SUBLEASE
(“Sublease”),
made
as of the 26
day of
January, 2006, by and between AOB
COMMERCE INC.,
a
California corporation having an address at 000 Xxxxx Xxxxx Xxxxx Xxxxxx, Xxxxx
000, Xxxxxxx, Xxxxxxxxxx 00000 (“Sublandlord”),
and
AOB
BIOTECH, INC.,
a
California corporation having an address at 000 X. Xxxx Xxxxxx, Xxxxx 000,
Xxxxxxxx, Xxxxxxxxxx 00000 (“Subtenant”).
W I T N E S S E T H:
WHEREAS,
Landlord
(together with its successors and assigns, “Overlandlord”),
as
landlord, and Rewards Network Establishment Services Inc. (“Rewards
Network”),
as
tenant, entered into a lease dated as of June 4, 2004 (said lease is herein
referred to as the “Xxxxxxxxx”),
demising certain premises known as Suite 202 on the second floor, approximately
3,480 rental square feet (the “Premises”)
in the
building located at 000 Xxxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000 (the
“Building”),
such
Premises being more particularly described in the Xxxxxxxxx;
WHEREAS,
pursuant to a Sublease dated January 30, 2006 (the “Sublease”),
Rewards Network sublet to Sublandlord, a portion of the Premises as more
particularly shown on the floor plan annexed hereto as Exhibit
A;
and
WHEREAS,
Sublandlord desires to sublease to Subtenant, and Subtenant desires to hire
from
Sublandlord, a portion of the Premises as more particularly shown on the floor
plan annexed hereto as Exhibit
A
(such
space, together with all of the fixtures and improvements which are located
in
and/or attached thereto at the Sublease Commencement Date (as defined below)
are
herein referred to as the “Sublease
Premises”)
upon
all of the terms and conditions hereinafter set forth;
NOW,
THEREFORE,
in
consideration of the mutual agreements herein contained, Sublandlord and
Subtenant, for themselves, their successors and assigns, hereby agree as
follows:
1.
SUBLEASING.
Upon
the terms and conditions hereinafter set forth, Sublandlord hereby subleases
to
Subtenant and Subtenant hereby hires from Sublandlord the Sublease Premises.
Sublandlord represents and warrants to Subtenant that it has submitted to
Subtenant a true, complete and correct copy of the Xxxxxxxxx (as attached hereto
and hereby made a part hereof as Exhibit
B).
Sublandlord further represents and warrants to Subtenant that as of the date
hereof: (1) neither the Xxxxxxxxx nor the Sublease has been further modified
or
amended and is in full force and effect and has not been terminated pursuant
to
any options afforded Overlandlord, Rewards Network or Sublandlord therein;
(2)
Rewards Network has not received
any notice of default under the Xxxxxxxxx from Overlandlord nor has Rewards
Network sent Overlandlord any notice claiming a default by Overlandlord under
the Xxxxxxxxx;
and (3)
Sublandlord has not received any notice of default under the Sublease from
Rewards Network nor has Sublandlord sent Rewards Network any notice claiming
a
default by Rewards Network under the Sublease. All capitalized terms used herein
(or incorporated herein by reference) that are not otherwise defined herein
shall have the meaning ascribed to them as set forth in the
Xxxxxxxxx.
2.
TERM
OF SUBLEASE.
(a)
Generally.
The
term of this Sublease (the “Term”)
shall
commence on the Sublease Commencement Date (as defined below), and shall end
on
July 14, 2009 (the “Expiration
Date”)
or on
such earlier date upon which this Sublease shall expire or be canceled or
terminated pursuant to any of the conditions or covenants of this Sublease
or
pursuant to law.
(b)
Consent.
This
Sublease is subject to, and shall become effective only upon the written consent
of each of Overlandlord and Rewards Network to the making of this Sublease.
Sublandlord shall request Rewards Network’s consent with reasonable promptness,
but Sublandlord shall not be required to make any payment to, or commence any
action or proceeding against, Rewards Network in order to obtain such consent.
Subtenant shall promptly furnish to Sublandlord such references, financial
statements and other information with respect to Subtenant as Rewards Network
shall request and shall execute any consent form reasonably requested by Rewards
Network. Subtenant shall pay, or shall reimburse Sublandlord for, any fee or
charge imposed by Rewards
Network,
including, without limitation, the counsel fees incurred by Rewards Network
in
connection with this Sublease. If Rewards Network’s consent (or deemed consent)
is not obtained on or prior to the 35th day following the date hereof, then
at
anytime after such 35th
day but
prior to the date upon which Rewards Network’s consent is obtained, either
Sublandlord, at its option, or Subtenant, at its option, may cancel this
Sublease by giving written notice thereof to the other party, whereupon this
Sublease shall be cancelled and neither party hereto shall have any rights
against or obligations to the other party hereto under this Sublease or
otherwise, provided, however, Sublandlord shall return to Subtenant the Security
Deposit and any prepaid rent paid to Sublandlord hereunder.
3.
Sublease
Commencement Date/ No Sublandlord’s Work.
(A) As
used herein, the term: (1) “Sublease
Commencement Date”
shall
mean March 1, 2006; and (2) “Rent
Commencement Date”
shall
mean March 16, 2006.
(B) Subtenant
agrees to accept the Sublease Premises on the Sublease Commencement Date in
its
“AS IS” condition (provided same is broom-clean) and agrees that Sublandlord
shall not be required to perform any work, supply any materials, or incur any
expense to prepare the Sublease Premises for Subtenant’s occupancy, and (ii)
Subtenant acknowledges that no representations with respect to the condition
of
the Sublease Premises, or with respect to any fixtures therein contained, have
been made to it.
4.
FIXED
RENT.
Subtenant covenants and agrees to pay to Sublandlord, without any notice, a
fixed basic rent (“Fixed
Rent”)
in the
sum of Eighty Nine Thousand Seven Hundred Eighty Four Dollars ($89,784.00)
per
annum, which Subtenant shall pay in equal monthly installments in advance
commencing on the Rent Commencement Date and continuing on the first day of
each
month thereafter during the Term, except that Subtenant shall pay the first
and
last monthly installments of Fixed Rent upon the execution hereof.
5.
ADDITIONAL
RENT.
(a)
Operating
Expense Escalation.
In
addition to the Fixed Rent payable by Subtenant hereunder, commencing on January
1, 2007, Subtenant shall pay Sublandlord, as additional rent, an amount
(“Operating
Expense Escalation”)
equal
to Subtenant’s Share (as defined below) of the amount by which (I) the Tenant’s
Operating Payment and real estate taxes (as defined in the Xxxxxxxxx) payable
by
Sublandlord to Rewards Network pursuant to Article 4 of the Xxxxxxxxx (both
estimates as well as actuals) in respect of Operating Expenses (as defined
in
the Xxxxxxxxx) pertaining to the Premises exceeds (II) the Tenant’s Operating
Payment payable by Sublandlord to Rewards Network pursuant to Article 4 of
the
Xxxxxxxxx (both estimates as well as actuals) for Base Year Operating Expenses
(as defined in the Xxxxxxxxx) 2006 in respect of Operating Expenses for calendar
year 2007. Each Operating Expense Escalation payment payable by Subtenant
hereunder shall be due and payable at the same time and in the same manner
as
Operating Expense increases are paid by Sublandlord under the Xxxxxxxxx, based
on the computations that are provided to Sublandlord by Rewards Network.
Sublandlord shall xxxx Subtenant for Operating Expense Escalations payable
by
Subtenant hereunder, such xxxx to set forth in reasonable detail the computation
of the Operating Expense Escalation to the extent provided by Rewards Network.
If there shall be any increase or decrease in the Tenant’s Operating Payment
payable by Sublandlord to Rewards Network under the Xxxxxxxxx for any period
occurring during the Term, whether during or after such period, the Operating
Expense Escalation payment payable by Subtenant hereunder for such period shall
be appropriately adjusted. “Subtenant’s
Share”,
since
Subtenant is subleasing Sublandlord’s entire leased premises, shall mean
Tenant’s Share (as defined in the Xxxxxxxxx).
(b)
If
Sublandlord shall be charged for any sums pursuant to the provisions of the
Xxxxxxxxx allocable to the Sublease Premises or for Subtenant’s use of services
of the Building (including, without limitation for the provision of supplemental
HVAC or cleaning), then Subtenant shall be liable for such sums with respect
to
the Sublease Premises, and such sums shall be deemed additional rent and
collectible as such and shall be payable by Subtenant upon ten (10) days’
written notice from Sublandlord (provided, however, that any such sums which
are
payable to Rewards Network upon demand, shall be paid by Subtenant to
Sublandlord hereunder, upon demand).
(c)
Terms
of Payment.
All
amounts payable by Subtenant pursuant to this Section 5 shall be deemed
additional rent hereunder (and any default in the payment thereof shall have
the
same remedies as a default in the payment of Fixed Rent). Any failure or delay
by Sublandlord in submitting a statement or xxxx for any additional rent under
this Sublease shall not constitute a waiver of or in any way impair Subtenant’s
obligation to pay such additional rent. Any statement from Rewards Network
setting forth additional rent or other charges payable under the Xxxxxxxxx
shall
be conclusive and binding upon Subtenant for the purpose of determining the
corresponding additional rent payable under this Sublease. The provisions of
this Section 5 shall survive the expiration or earlier termination of this
Sublease. Subtenant’s covenant to pay Fixed Rent and additional rent hereunder
shall be independent of every other covenant under this Sublease.
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6.
PAYMENT.
The
Fixed Rent, additional rent and all other charges, costs and expenses payable
by
Subtenant under this Sublease (herein collectively “Rental”)
shall
be paid to Sublandlord at the office of Sublandlord set forth above or at such
other place as Sublandlord may designate, as and when the same becomes due
and
payable, without notice or demand therefor and without any deduction, credit,
set-off, counterclaim or abatement whatsoever. In every case in which Subtenant
is required to pay to Sublandlord a sum of money and said sum (or any portion
thereof) is not paid within five (5) days when due, interest at the rate of
4%
above the “prime rate” as established by Citibank, N.A or the maximum percent
permitted by law, whichever is less (herein “Applicable
Rate”)
shall
be payable on such sum (or so much thereof as shall be unpaid) from the date
said sum becomes due until the date the unpaid amount is paid. The provisions
set forth above are in addition to any other rights or remedies available to
Sublandlord on account of Subtenant’s failure to pay Fixed Rent or additional
rent or other Rental hereunder.
7.
ELECTRICITY.
Electricity is currently being furnished to the Sublease Premises by
Overlandlord in accordance with the provisions of Article 6 of the Xxxxxxxxx.
Subtenant shall be entitled to continue to receive such electricity from
Overlandlord (but in no event more than the wattage provided thereunder) for
its
use in operating the Sublease Premises. Sublandlord shall in no event be liable
in any way to Subtenant for any failure or defect in the supply or character
of
electricity service supplied to the Sublease Premises for any reason other
than
Sublandlord’s gross negligence.
8.
USE.
The
Sublease Premises shall be used only for general and executive offices and
for
no other purposes. In addition to the provisions of the Xxxxxxxxx (as
incorporated herein by reference), Subtenant covenants that it will not do
or
suffer to be done in or upon the Sublease Premises any act or thing which shall
or may be a nuisance, or damage to the Sublandlord, or its occupants, and
covenants that no business shall be carried on nor any act or acts suffered
or
permitted to be done in the Sublease Premises that in any manner conflicts
with
or is contrary to any law.
9.
INCORPORATION
OF THE XXXXXXXXX.
(a)
General.
Except
as otherwise provided below, the terms, covenants and conditions of the
Xxxxxxxxx (except such as by their nature or purport do not relate to the
Sublease Premises or are inapplicable or inappropriate to the subleasing of
the
Sublease Premises pursuant to this Sublease or are inconsistent with any of
the
provisions of this Sublease) are hereby incorporated in and made part of this
Sublease with the same force and effect as though set forth at length herein;
provided,
however,
that,
except as provided below, for the purposes of this Sublease, (i) references
in
the Xxxxxxxxx to the term “Landlord” shall be deemed to refer to the Sublandlord
under this Sublease, (ii) references in the Xxxxxxxxx to the term “Tenant” shall
be deemed to refer to the Subtenant under this Sublease, (iii) references in
the
Xxxxxxxxx to the term “Premises” shall be deemed to refer to the “Sublease
Premises” herein, (iv) references in the Xxxxxxxxx to the terms “Fixed Rent” and
“additional rent” and “Rental” shall be deemed to refer, respectively, to the
“Fixed Rent”, additional rent and Rental payable hereunder, (v) references in
the Xxxxxxxxx to the “Term” shall be deemed to refer to the “Term” of this
Sublease, (vi) where reference is made in the Xxxxxxxxx to this “lease” or
“Lease” such reference shall be deemed to refer to this Sublease, (vii)
references in the Xxxxxxxxx to the term “Alterations” shall be deemed to refer
to Changes hereunder, (viii) references in the Xxxxxxxxx to the terms
“Expiration Date” shall be deemed to refer to the “Expiration Date” hereunder;
(ix) references in the Xxxxxxxxx to the term “Tenant’s Property” shall be deemed
to refer to the “Subtenant’s Property” hereunder, (x) references in the
Xxxxxxxxx to the term “Escalation Rent” shall be deemed to refer to the
Operating Expense Escalation and Tax Escalation payable hereunder, and (xi)
where reference is made in the Xxxxxxxxx to any Superior Leases, such reference
shall be deemed to include the Xxxxxxxxx.
(b)
Approvals
and Consents.
Whenever a provision of the Xxxxxxxxx incorporated herein by reference requires
or refers to Overlandlord’s consent or approval, such provision as incorporated
herein shall be deemed to require or refer to Overlandlord’s, Rewards Network’s
and Sublandlord’s consent or approval. In such a case, unless otherwise set
forth herein, Subtenant shall first obtain Rewards Network’s consent or
approval. Sublandlord, upon request of Subtenant, shall forward to Rewards
Network Subtenant’s written notice requesting the consent or approval of Rewards
Network and if Rewards Network is required in the Xxxxxxxxx to act reasonably,
Sublandlord shall reasonably cooperate with Subtenant, at Subtenant’s sole
expense, in seeking such reasonable consent from Rewards Network (but in no
event shall Sublandlord be required to commence any litigation); it being
acknowledged by Subtenant that Sublandlord shall have no further obligation
with
respect to Subtenant’s efforts to obtain Rewards Network’s consent or approval
and no liability whatsoever in the event such consent or approval is for any
reason withheld.
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(c)
Limitation
on Sublandlord’s Obligations; Default by Overlandlord.
Notwithstanding anything herein contained, the only services or rights to which
Subtenant is entitled hereunder are those to which Sublandlord is entitled
under
the Xxxxxxxxx, and for all such services and rights, Subtenant will look solely
to Overlandlord (but will be responsible to pay for all additional services
provided to the Sublease Premises set forth therein, if Sublandlord is required
to pay Overlandlord for same pursuant to the provisions thereof). Sublandlord
hereunder assumes no liability for any covenants, representations or warranties
made by Overlandlord under the Xxxxxxxxx. In amplification and not in limitation
of the foregoing, Sublandlord shall have no obligation, liability or
responsibility (a) for furnishing access, elevators, freight elevators,
electricity, condenser water, chilled water, heating, air conditioning,
cleaning, painting, window washing, directory listings or any other service
to
the Building or the Sublease Premises, or (b) for any maintenance, repairs
or
alterations in or to the Building or the Sublease Premises, or (c) for repair
or
restoration of the Sublease Premises or the Building in the event of damage
or
destruction by fire or other casualty, or (d) executing any application for
any
proposed Subtenant’s alterations. Sublandlord agrees to take all reasonable
steps to assist Subtenant as Subtenant may from time to time request, at
Subtenant’s sole expense and without liability to Sublandlord, in seeking such
services and rights from Overlandlord (but in no event shall Sublandlord be
required to commence any litigation). As long as Sublandlord takes such
reasonable steps in seeking such services and rights from Overlandlord, (i)
any
condition resulting from a default by Overlandlord shall not constitute an
eviction, actual or constructive, of Subtenant, and (ii) no default by neither
Overlandlord or Rewards Network shall excuse Subtenant from the performance
or
observance of any of its obligations to be performed or observed under this
Sublease or shall entitle Subtenant to terminate this Sublease or to any
reduction in or abatement of the Fixed Rent, additional rent or other charges
provided for in this Sublease, provided, however, that if and to the extent
Sublandlord receives an abatement of Fixed Rent (or additional rent) with
respect to all or any portion of the Sublease Premises on account of such lack
of services, then Sublandlord shall grant a parallel abatement (pertaining
to
such portion of the Sublease Premises) to Subtenant. In furtherance of the
foregoing, Subtenant does, to the extent permitted by law, hereby waive any
cause of action and any right to bring an action against Sublandlord by reason
of any act or omission of Overlandlord under the Xxxxxxxxx or Rewards Network
under the Sublease, except an action based on Sublandlord’s failure to take
reasonable steps as aforesaid.
(d)
Obligations
of Subtenant.
Whenever a provision of the Xxxxxxxxx incorporated herein by reference obliges
Sublandlord (as tenant under the Xxxxxxxxx) to perform some act for the benefit
of Overlandlord, including by way of example adhering to Overlandlord’s rules
and regulations, providing insurance or indemnity or making repairs or
permitting access, contesting any Requirements, such provision as incorporated
herein shall oblige Subtenant to perform such act for the benefit of
Overlandlord and Sublandlord. Whenever pursuant to a provision of the Xxxxxxxxx
incorporated herein by reference Sublandlord (as tenant under the Xxxxxxxxx)
is
expressly required to take some action by a date certain or within a certain
time period, Subtenant shall take such action not less than three (3) days
prior
to the date or time for Sublandlord’s performance.
(e)
Sublandlord’s
Rights.
Whenever a provision of the Xxxxxxxxx incorporated herein by reference affords
Overlandlord some right against Sublandlord (specifically, without limitation,
the default and remedies provisions), such provision as incorporated herein
shall afford Overlandlord, Rewards Network and Sublandlord such right against
Subtenant. In amplification and not in limitation of the foregoing, Sublandlord
shall have the same rights and remedies with respect to a breach of this
Sublease by Subtenant as Overlandlord has with respect to a breach of the
Xxxxxxxxx, as if the same were more fully set forth at length herein, and
Sublandlord shall have, with respect to Subtenant, this Sublease and the
Sublease Premises, all of the rights, powers, privileges and immunities as
are
had by Overlandlord under the Xxxxxxxxx and Rewards Network under the
Sublease.
(f) Condemnation/Damage
and Destruction.
(1)
Notwithstanding the provisions of the Xxxxxxxxx, Subtenant, following a damage
or destruction to the Sublease Premises (or any portion thereof) or a
condemnation of the Sublease Premises (or any portion thereof), shall not have
any right to elect to terminate this Sublease except as set forth in Section
9(f)(2) below. If Sublandlord, Rewards Network or Overlandlord shall have the
right to terminate the Xxxxxxxxx pursuant to any of the provisions of Articles
19 or 20 thereof, then Sublandlord, Rewards Network or Overlandlord may exercise
such right in their sole discretion. If Sublandlord, Rewards Network or
Overlandlord elects to terminate the Xxxxxxxxx pursuant to any of the provisions
of Articles 19 or 20 thereof, then this Sublease shall automatically terminate,
and upon such termination of this Sublease, Subtenant shall not have any right
or claim against Sublandlord, Rewards Network or Overlandlord on account of
such
termination. If (i) any portion of the Sublease Premises shall be rendered
untenantable during the Term hereof on account of such fire, casualty,
condemnation or taking, and (ii) Sublandlord (as tenant under the Xxxxxxxxx)
shall receive an abatement of the Fixed Rent and additional rent payable with
respect to the Sublease Premises on account thereof, then Subtenant shall be
entitled to an abatement of Fixed Rent and additional rent with respect to
the
portion of the Sublease Premises so affected but only to the extent Sublandlord
shall actually receive from Rewards Network the abatement described in clause
(ii) above of this sentence. The provisions of this Section 9(f) shall be
considered an express agreement governing any case of damage or destruction
of
the Building or the Sublease Premises by fire or other casualty and any law
now
or hereafter in force which is inconsistent with the provisions of this Section
9(f) shall have no application.
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(2) If
the
Sublease Premises or any part thereof are damaged by fire or other casualty,
Subtenant shall give written notice thereof to Sublandlord promptly after
Subtenant becomes aware of such damage. In the event the Sublease Premises
are
untenantable for use by Subtenant by reason of a substantial damage by fire
or
other casualty thereby affording Sublandlord, as tenant under the Xxxxxxxxx,
the
right to terminate the Xxxxxxxxx pursuant to the provisions of Article 19,
then
Subtenant may elect to terminate this Sublease by notice to Sublandlord given
not later than three (3) Business Days prior to the date that Sublandlord is
required to give Overlandlord notice of Sublandlord’s exercise of its
termination right under the Xxxxxxxxx (it being expressly understood and agreed
that Subtenant shall have the right to terminate this Sublease on account of
a
casualty only in those circumstances that Sublandlord shall have the parallel
right under the Xxxxxxxxx to terminate the Xxxxxxxxx, and only if Subtenant
shall have exercised such termination right at least three (3) Business Days
prior to the date by which Sublandlord is required under the Xxxxxxxxx to
exercise its right to terminate the Xxxxxxxxx). If Subtenant shall timely and
properly exercise such right to terminate this Sublease, then this Sublease
shall terminate effective as of the 30th
day (or,
in the case of termination in the last year, the 60th
day)
following such Subtenant’s notice, and Subtenant shall vacate and surrender the
entire Sublease Premises in accordance with the provisions of this Sublease
(for
the delivery of the Sublease Premises at the end of the Term), with all Fixed
Rent and additional rents apportioned as of such termination date.
10.
PROTECTION
OF THE XXXXXXXXX.
(a)
Generally.
Sublandlord shall not do or cause to be done or suffer or permit to be done
any
default or breach under the Xxxxxxxxx which causes the Xxxxxxxxx or the rights
of Sublandlord as tenant thereunder to be terminated (other than (i) on account
of a parallel default by Subtenant under this Sublease, or (ii) pursuant to
termination rights expressly granted to Sublandlord thereunder). Subtenant
shall
not do or cause to be done or suffer or permit to be done any act or thing
which
would or might constitute a default under the Xxxxxxxxx or cause the Xxxxxxxxx
or the rights or benefits of Sublandlord as tenant thereunder to be terminated,
diminished or adversely affected or which would or might cause Sublandlord
to
become liable for any damages, costs, claims or penalties. Subtenant represents
that it has examined the Xxxxxxxxx and that it is fully familiar with the terms
thereof.
(b)
Modification
of Xxxxxxxxx.
Sublandlord may modify, or cause or suffer to be modified, the Xxxxxxxxx,
without in any instance first obtaining the consent of Subtenant to such
modification; provided, however, that if the modification in question would
adversely affect Subtenant’s rights or obligations hereunder, Subtenant’s rights
and obligations vis-a-vis Sublandlord shall be governed by this Sublease without
giving effect to such modification.
(c)
Termination
of Xxxxxxxxx.
Except
with respect to Sublandlord’s rights of termination that are expressly set forth
in the Xxxxxxxxx, so long as Subtenant is not in default (beyond notice and
period of cure) under this Sublease, Sublandlord covenants and agrees not to
voluntarily cancel or surrender the Xxxxxxxxx (unless on account of
Overlandlord’s default), without the prior written consent of Subtenant, unless
Overlandlord agrees to recognize the rights of Subtenant under this Sublease.
In
the event of and upon the termination or cancellation of the Xxxxxxxxx pursuant
to any of the provisions of the Xxxxxxxxx or on account of Overlandlord’s
default, or otherwise as required by law, whether or not the Sublease
Commencement Date shall have occurred, this Sublease shall automatically expire
and terminate and shall be of no further force and effect, and Subtenant shall
have no claim against Sublandlord of any kind whatsoever, unless such
termination or cancellation is due to the default of Sublandlord, other than
a
default caused by Subtenant under this Sublease.
11.
SUBORDINATION.
This
Sublease is subject and subordinate to all of the terms, covenants, conditions
and obligations of the Xxxxxxxxx, and to the matters to which the Xxxxxxxxx
is
or shall be subordinate, and in the event of the termination, re-entry or
dispossession by Overlandlord under the Xxxxxxxxx, Overlandlord may, at its
option, take over all of the right, title and interest of Sublandlord under
this
Sublease and Subtenant shall, at Overlandlord’s option, attorn to Overlandlord
pursuant to the then executory provisions of this Sublease, except that
Overlandlord shall not be (i) liable for any previous act or omission of
Sublandlord under this Sublease, (ii) subject to any offset that theretofore
accrued to Subtenant against Sublandlord, (iii) bound by any previous
modification of this Sublease or by any previous payment by Subtenant of more
than one month’s rent (unless previously approved by, Overlandlord), (iv) bound
by any covenant to undertake or complete or make payment to or on behalf of
Subtenant with respect to any construction of the Sublease Premises or any
portion thereof demised by this Sublease, and (v) bound by any obligations
to
make any other payment to or on behalf of Subtenant, except for services,
repairs, maintenance and restoration provided for under this Sublease to be
performed after the date of such termination, reentry or dispossession by
Overlandlord under this Lease and which Overlandlord is required to perform
hereunder with respect to the Sublease Premises at Overlandlord’s expense.
12. ASSIGNMENT
AND SUBLETTING.
(a)
Notwithstanding anything contained in this Sublease, Subtenant shall not
encumber this Sublease or the Sublease Premises, assign this Sublease, or
sublease the Sublease Premises in whole or in part or permit Subtenant’s
interest in this Sublease to be vested in any third party by operation of law
or
otherwise without in each instance the prior written consent of Sublandlord
(and, if required by the Xxxxxxxxx, of Overlandlord), in conformity with the
provisions of Article 17 of the Xxxxxxxxx, the terms of which are incorporated
by reference.
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(b) No
assignment of this Sublease or underletting of the Sublease Premises, unless
made in compliance with all of the provisions of this Article, shall have any
validity. An assignment of this Sublease or underletting of the Sublease
Premises shall not relieve or release the assignor or underlandlord from any
obligations of Subtenant under this Sublease and the assignor/underlandlord
shall remain liable for the performance of all obligations of Subtenant
hereunder for the remainder of the term and renewal terms, if any. Subtenant
shall and does hereby indemnify and agree to defend and hold Sublandlord free
and harmless from and against any and all liabilities, claims, causes of action,
suit or suits, expenses, penalties, costs and fees (including, without
limitation, reasonable counsel fees) arising under or in connection with the
terms, provisions and conditions of each and every underlease, license or
transfer/assignment agreement. The fact that a violation or breach of any of
the
terms, provisions or conditions of this Sublease results from or is caused
by an
act or omission by any undertenant, assignee or transferee shall not relieve
Subtenant of Subtenant’s obligation to cure the same. Subtenant shall take all
necessary steps to prevent any such violation or breach.
13. SUBLANDLORD’S
CONSENT OR APPROVAL.
Whenever Sublandlord is required not to unreasonably withhold its consent or
approval, if Sublandlord unreasonably withholds such consent or approval,
Subtenant’s sole remedy shall be an action for specific performance or
injunction and in no case shall Sublandlord be liable in damages or otherwise
monetarily for unreasonably withholding consent or approval. Without limiting
the reasons for which Sublandlord may withhold consent or approval, Subtenant
agrees that even in instances in which Sublandlord is obliged not to
unreasonably withhold its consent or approval, Sublandlord may withhold the
same
if Rewards Network or Overlandlord withholds the same.
14. SUBLANDLORD’S
RIGHT TO CURE. If
Subtenant fails to perform any of its obligations hereunder in accordance with
the terms hereof, then, after notice to Subtenant (except in case of emergency)
and (i) if Sublandlord has received a notice of default from Rewards Network
or
Overlandlord on account of such Subtenant’s failure (or if such default does not
require a notice from Rewards Network or Overlandlord), without awaiting the
lapse of any cure period that may be provided for herein for defaults and (ii)
if Rewards Network or Overlandlord has not sent any notice of default, following
the period of ten (10) days following such notice, Sublandlord may (but shall
not be obligated to) cure such failure for the account of and at the expense
of
Subtenant, and the amount of any costs, payments or expenses incurred by
Sublandlord in connection with such cure (including reasonable counsel fees)
shall be payable by Subtenant to Sublandlord as additional rent on
demand.
15. INDEMNITY.
Subtenant shall indemnify, defend and hold Sublandlord harmless from and against
any and all claims, actions, liabilities, losses, damages, costs and expenses
(including reasonable attorneys’ fees) arising (i) from the use or occupancy by
Subtenant of the Sublease Premises, or (ii) from any work or thing done or
any
condition created by or any other act or omission of Subtenant or its employees,
agents, contractors, visitors or licensees, in or about the Sublease Premises
or
any other part of the Building, or (iii) from Subtenant’s failure to perform any
of the obligations imposed on it hereunder (including any of the obligations
imposed on it hereunder by virtue of the incorporation herein of certain
provisions of the Xxxxxxxxx).
16. REPAIRS.
(a)
Subtenant shall not commit any waste in the Sublease Premises or the Building
and shall be responsible to maintain and repair the Sublease Premises and all
fixtures, equipment and improvements attached to or located in the Sublease
Premises or any Changes thereto approved by Sublandlord (herein collectively,
the “Improvements
and Installations”)
in
order to ensure that same are repaired and maintained in as good a condition
as
existed as of the Sublease Commencement Date, reasonable wear and tear excepted.
In amplification and not in limitation of the foregoing, Subtenant shall be
liable for all repairs and maintenance of the interior doors, floor and wall
covering, lighting fixtures, and scratches and damages to any glass within
the
Sublease Premises. In the event Subtenant shall fail to comply with its
obligation to repair and maintain the Sublease Premises or the other items
for
which its is responsible in accordance with the terms hereof, then Sublandlord
shall be entitled to make such repairs on behalf of Subtenant in accordance
with
the provisions hereof. In the event that the Building or any of the equipment
or
appurtenances thereto or stored therein is damaged as a result of any act or
omission of Subtenant, its agents, employees, contractors or invitees, then
Subtenant, upon demand shall pay to Sublandlord the cost of any such repairs
that Sublandlord shall be required to pay to Rewards Network or Overlandlord
on
account thereof. Subtenant’s obligations hereunder shall survive the expiration
or earlier termination of the term hereof.
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17. ALTERATIONS.
(a)
Subtenant shall not make any alterations or improvements (herein “Changes”)
to the
Sublease Premises of any nature without (i) first obtaining Sublandlord’s prior
written consent, and (ii) the required consent from Rewards Network in
accordance with the terms of the Sublease and Overlandlord in accordance with
the provisions of the Xxxxxxxxx. Sublandlord agrees that provided, (x) Rewards
Network and Overlandlord shall each have consented to a proposed Change, and
(y)
such proposed Change does not affect the structural integrity of the Building
or, affect any mechanical, electrical, HVAC, plumbing, life safety, security
or
other system located in the Sublease Premises or the Building, Sublandlord’s
consent shall not be unreasonably withheld or delayed. Any request for
Sublandlord’s consent to a proposed Change shall be accompanied by a final set
of architectural, mechanical, electrical and engineering drawing and
specifications (herein called the “final
plans”)
setting forth all of the work, equipment and improvements which Subtenant wishes
to perform, which final plans shall be scaled and dimensioned and shall contain
complete information necessary for the construction and finishing of the
Sublease Premises and for the engineering in connection therewith and otherwise
comply with the terms of the Xxxxxxxxx. Subject to the provisions this Sublease
(including the provisions of the Xxxxxxxxx incorporated herein by reference),
it
is understood that Sublandlord shall not be deemed unreasonable in withholding
its consent to the final plans prepared by Subtenant pursuant hereto if (i)
Rewards Network or Overlandlord has not consented thereto, (ii) same involves
the performance of work or the installation in the Sublease Premises of
materials or equipment which do not equal or exceed the existing standard of
quality of Sublease Premises, (iii) same exceeds the capacity of the utilities
available in the Sublease Premises, or (iv) same will contain or require the
use
of hazardous or toxic materials or violate any governmental laws, rules or
ordinances. If Rewards Network, Overlandlord and Sublandlord consent to any
Changes, then, with respect to the same, Subtenant shall comply with all of
the
provisions of the Sublease and Xxxxxxxxx relating thereto.
(b) Subtenant
hereby covenants and agrees to indemnify and save harmless Sublandlord from
and
against any and all claims, reasonable counsel fees, loss, damage and expenses
whatsoever by reason of any injury or damage, caused by Subtenant or its
contractors, agents or employees, to any person or property as a result of
any
Changes performed by Subtenant or arising out of any fine or penalty or out
of
any other matter or thing connected with any work done or to be done or
materials furnished or to be furnished in connection with such Changes. Before
proceeding with (and as a condition to making) any Changes which will cost
more
than twenty five thousand dollars and 00/100 ($25,000.00), as reasonably
estimated by Sublandlord, Subtenant shall furnish to Sublandlord a payment
and
performance bond or other security satisfactory to Sublandlord, in an amount
at
least equal to 120% of the estimated cost of such Changes.
18. INSURANCE.
(A) The
Subtenant shall comply with the insurance requirements imposed upon Sublandlord,
as “Tenant” under the Xxxxxxxxx as incorporated herein by reference (including
the requirement that it insure the Included Furniture under its casualty
insurance). Such insurance shall name Sublandlord, Rewards Network and
Overlandlord as additional insured, as their respective interests may appear.
Subtenant shall furnish Sublandlord with certificates evidencing such insurance
prior to occupying the Sublease Premises. Notwithstanding anything in this
Sublease to the contrary, Subtenant hereby releases Sublandlord from any
liability to Subtenant on account of any loss or damage to the Improvements
and
Installations and Subtenant’s Property arising out of any cause or origin,
including the negligence or misconduct of Overlandlord, Rewards Network,
Sublandlord, or their respective agents, contractors or employees, but only
to
the extent of the insurance proceeds paid to Subtenant under its policies of
insurance or, if it fails to maintain the required policies, the insurance
proceeds that would have been paid to Subtenant if it had maintained such
policies. Subtenant shall promptly give to its insurance company written notice
of the waiver contained in this subparagraph, and shall cause its insurance
policies to be properly endorsed, if necessary, to prevent the invalidation
of
any insurance coverages by reason of the waiver contained in this subparagraph;
except that Subtenant shall have the right to obtain a policy of insurance
that
would be invalidated by or would conflict with such release (and, the release
shall not apply with respect to damage covered by such a policy), if it is
no
longer possible for Subtenant to obtain a policy which would not be invalidated
and would not conflict with such release, and Subtenant so notifies the
Sublandlord.
(B)
Notwithstanding anything in this Sublease to the contrary, Sublandlord hereby
releases Subtenant from any liability to Sublandlord on account of any loss
or
damage to the Sublandlord’s moveable personal property items that are in the
portion of the Premises that are not part of the Sublease Premises, arising
out
of any cause or origin, including the negligence or misconduct of Subtenant,
or
its agents, contractors or employees, but only to the extent of the insurance
proceeds paid to Sublandlord under its policies of insurance or, if it fails
to
maintain property insurance on its personal property in accordance with the
terms of the Xxxxxxxxx, the insurance proceeds that would have been paid to
Subtenant if it had maintained such policies. Subtenant shall promptly give
to
its insurance company written notice of the waiver contained in this
subparagraph, and shall cause its property insurance policy to be properly
endorsed, if necessary, to prevent the invalidation of any insurance coverages
by reason of the waiver contained in this subparagraph; except that Sublandlord
shall have the right to obtain a policy of personal property insurance that
would be invalidated by or would conflict with such release (and, the release
shall not apply with respect to damage covered by such a policy), if it is
no
longer possible for Sublandlord to obtain a policy which would not be
invalidated and would not conflict with such release, and Sublandlord so
notifies the Subtenant.
19. END
OF TERM. The
provisions of Xxxxxxxxx Article 22 shall apply.
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20. BROKERS.
Subtenant represents that it has not dealt with any real estate brokers or
finders with respect to this Sublease other than RE/MAX P.P. Commercial and
Xxxxx & Xxxxx (the “Brokers”).
Subtenant agrees to indemnify and hold Sublandlord harmless from and against
any
and all loss, liability, damage, cost and expense (including, but not limited
to, court costs and reasonable attorneys’ fees) which Sublandlord may incur or
sustain in connection with any claim or action by any real estate broker or
finder (other than the Brokers) that may be asserted against Sublandlord as
a
result of any conversations, correspondence or other dealings between Subtenant
and such broker or finder. Sublandlord shall be responsible for any brokerage
commissions payable to Brokers pursuant to a separate agreement. Sublandlord
agrees to indemnify and hold Subtenant harmless from and against any and all
loss, liability, damage, cost and expense (including, but not limited to, court
costs and reasonable attorneys’ fees) which Subtenant may incur or sustain in
connection with any claim or action by any real estate broker or finder that
may
be asserted against Subtenant as a result of any conversations, correspondence
or other dealings between Sublandlord and such broker or finder (who shall
not
have dealt with or have had conversations or other correspondence with
Subtenant).
21. NOTICES.
Any
notices to be given under this Sublease shall be in writing and shall be sent
by
personal hand delivery or registered or certified mail, return receipt
requested. If such notice is directed to Subtenant, it shall be addressed to
Subtenant at the Premises Attention: ________________, and if such notice is
directed to Sublandlord, it shall be addressed to Sublandlord at 00000 Xxxxx
Xxxxx Xxxxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000, Attention: Xxx Xxxxxxxx,
with a copy to Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000,
Attention: General Counsel. Either party may, by notice in writing, direct
that
future notices or demands be sent to a different address and to the attention
of
such other people as either Sublandlord or Subtenant shall designate. Notices
so
sent shall be deemed given (i) if sent by personal hand delivery, upon delivery
thereof, and (ii) if sent by register or certified mail, upon receipt by the
party in question or the first attempted delivery, if delivery is refused and
is
so indicated on the return receipt.
22. SECURITY
DEPOSIT.
The
provisions of Xxxxxxxxx Article 5 shall apply to this Sublease, provided that
the Security Deposit shall be in the amount of Seven Thousand Four Hundred
Eighty Two Dollars and Zero Cents ($7,482.00).
23. MISCELLANEOUS.
(a)
Merger.
All
prior understandings and agreements between the parties are merged within this
Sublease, which alone fully and completely sets forth the understanding of
the
parties; and this Sublease may not be changed or terminated orally or in any
manner other than by an agreement in writing and signed by the party against
whom enforcement of the change or termination is sought.
(b)
Successors
and Assigns.
This
Sublease shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and permitted assigns. The term
“Sublandlord,” as used in this Sublease, shall mean only the owner from time to
time of the interest of the tenant under the Xxxxxxxxx, so that in the event
of
any transfer or assignment of such interest, the transferor or assignor shall
be
and hereby is entirely freed and relieved of all covenants, obligations and
liability of Sublandlord under this Sublease, and it shall be deemed, without
further agreement, that the transferee or assignee has assumed and agreed to
perform and observe all obligations of Sublandlord under this Sublease during
the period that such transferee or assignee is the owner of the interest of
the
tenant under the Xxxxxxxxx.
(c)
No
Recording.
Subtenant shall not record this Sublease or any memorandum thereof.
(d)
Signage/Directory.
Subject
to Overlandlord approval as required under the Xxxxxxxxx, Subtenant, at its
sole
cost and expense, shall be permitted to place an identifying sign (containing
Subtenant’s name) at the entrance of the Sublease Premises, subject to
Sublandlord’s prior written consent as to size, material and location (which
will not be unreasonably withheld, conditioned or delayed). Subtenant will
be
responsible for obtaining any and all necessary governmental approvals and
permits in connection therewith. Sublandlord will permit Subtenant to use
Subtenant’s Proportionate Share of the directory listings available to
Sublandlord under the Xxxxxxxxx on the Building directory, subject to and in
accordance with the provisions of the Xxxxxxxxx (including paying Overlandlord’s
charges for reprogramming any directory).
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IN
WITNESS WHEREOF,
Sublandlord and Subtenant do hereby execute this Sublease as of the date and
year first above written.
SUBLANDLORD:
AOB
COMMERCE INC.
By:
/s/ Xxxxxx Xxxx
Name:
Xxxxxx Xxxx
Title:
President
SUBTENANT:
AOB
BIOTECH, INC.
By:
/s/ Xxxxxx Xxxx
Name:
Xxxxxx Xxxx
Title:
Chief Executiver Officer
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