EXHIBIT 10.31
SUBLEASE AGREEMENT
Dated: November 8, 2002
Between
AMISYS, LLC
And
NeoReach, Inc.
PREMISES:
00 Xxxx Xxxx Xxxxx
Xxxxxxxxx, XX 00000
SUBLEASE AGREEMENT
This Sublease Agreement is made and entered into this 8th day of November,
2002, ("Sublease") by and between AMISYS, LLC, a Delaware limited liability
company, having an address at 00 Xxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000
(herein referred to as "Sublessor" and/or "Sublandlord") and NeoReach, Inc., a
Delaware corporation, having an address at 0000 Xxxxx Xxxx Xxxx., Xxxxxxxxx, XX
00000 (herein referred to as "Sublessee" and/or "Subtenant").
WITNESSETH
WHEREAS Sublessor is the tenant under a Lease Agreement dated December 4,
1996 ("Master Lease"), annexed hereto as Exhibit "B," with The Realty Associates
Fund III, L.P. (herein referred to as "Master Landlord" or "Landlord") in
connection with leasehold premises located on the 4th Floor of 00 Xxxx Xxxx
Xxxxx, Xxxxxxxxx, XX 00000; and
WHEREAS, Subtenant desires to sublease from Sublessor and Sublessor is
willing to sublease to Subtenant the Premises on the Commencement Date (as
defined in Article 3 below), under all of the terms and conditions hereinafter
set forth;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto covenant and
agree as follows:
1. PREMISES. Sublessor subleases to Subtenant and Subtenant subleases from
Sublessor, a portion of the building known as 00 Xxxx Xxxx Xxxxx, Xxxxxxxxx, XX
00000 (the "Premises"), known as Suite 480 and consisting of approximately 6,345
rentable square feet on the 4th floor, more particularly described and shown on
Exhibit "A" annexed and incorporated by reference herein. The parties agree that
Subtenant shall initially occupy and pay rent for 3,000 square feet, and
effective June 1, 2003 Subtenant shall occupy and pay rent for the entire 6,345
square feet.
2. USE. The subleased premises are to be occupied only and for no other
purpose than general office use and --- electronics laboratory. Subtenant shall
not use or permit use of the Premises or any part thereof for any other purpose.
(a) Subtenant shall not do or suffer anything to be done upon the
Premises which shall cause any damage to the Premises, or violate any zoning,
building, health, safety or other code or ordinance of any federal, state or
local unit of government which has jurisdiction over the Premises, and Subtenant
shall hold Sublessor harmless against any and all costs, expenses, losses or
damages incurred, suffered, or imposed on Sublessor as a result of any use of
the Premises by Subtenant in violation of any such laws for the term of the
Lease.
(b) Hours of Operation. Subtenant shall have 24 hour/7 day access to
the premises. Standard building system hours are Monday through Friday from 8:00
a.m. to 6:00 p.m. and Saturday from 9:00 a.m. to 1:00 p.m. Subtenant shall not
be liable for any CAM or other charges or operating expense passthroughs unless
Subtenant specifically requests to extend the normal building hours of
operation.
3. TERM OF SUBLEASE. The term of this Sublease shall commence on February
1, 2003 (the "Commencement Date"), or earlier if Master Landlord's consent is
received prior to that date. The term of this Sublease shall end on December 31,
2006 when the Master Lease term expires, unless sooner terminated pursuant to
any applicable provision of the Master Lease or this Sublease.
4. SUBLEASE RENT. During the term of the Sublease, Subtenant covenants and
agrees to pay to Sublessor base rent for the Premises without notice or demand
and without deduction, set-off, or abatement, in equal monthly installments in
advance ("Monthly Base Rent"), in accordance with the following schedule:
Base Rent Schedule
Date From Date To Monthly Rent Per Sq. Ft.
--------- ------- ------------ -----------
Commencement May. 31, 2003 $4,500.00 $18.00
Jun. 1, 2003 Nov. 30, 2003 $9,517.50 $18.00
Dec. 1, 2003 Nov. 30, 2004 $9,898.20 $18.72
Dec. 1, 2004 Nov. 30, 2005 $10,294.76 $19.47
Dec. 1, 2005 Nov. 30, 2006 $10,707.19 $20.25
Dec. 1, 2006 Dec. 31, 2006 $11,135.48 $21.06
The first installment of monthly rent paid by Subtenant upon its execution
of this Sublease shall be applied by Sublessor to the monthly Base Rent payable
by Subtenant for the first calendar month of the initial Sublease term.
Remaining monthly rent installments are due and payable to the Sublessor on the
first calendar day of the month.
(a) If the rent Commencement Date occurs on a day other than the first
day of a calendar month, the gross Rent due and payable for such calendar month
shall be pro-rated based on a thirty (30) day month.
(b) In the event Subtenant is late in the payment of rent or other
sums of money required to be paid under the Lease, Subtenant agrees to pay to
Sublessor a late charge of 6% of the overdue amount .
5. QUIET ENJOYMENT. If Subtenant performs the terms of this Sublease,
Sublessor warrants that Subtenant will have quiet enjoyment and peaceful
possession of the Premises, and Sublessor will defend Subtenant in such quiet
enjoyment and peaceful possession during the term of this Sublease, without
interruption by Sublessor or of any person rightfully claiming under Sublessor.
6. HOLDOVER. Any holdover at the expiration of this Sublease with or
without Sublessor's consent shall result in a month-to-month tenancy, subject to
the Sublessor's right to remain as a tenant, which subtenancy may thereafter be
terminated on thirty (30) days notice. In the event Subtenant remains in
possession of the premises after the termination (expiration) of the term of
this Sublease, Subtenant's base monthly rent shall be increased by 75%
commencing with the expiration (termination) of the term.
The term of this Sublease shall not be extended by, nor shall Subtenant be
entitled, under any circumstance to the benefit of any extension or renewal of
the Master Lease, without the expressed written consent of Sublessor.
7. POSSESSION OF SUBLEASED PREMISES. Sublessor will deliver possession of
the Subleased Premises to Subtenant in a broom-clean condition and,
notwithstanding any provision contained in the Sublease to the contrary,
Subtenant hereby accepts the Subleased Premises "as is" and in its current
condition as of the date hereof, and acknowledges that Sublessor and Master
Landlord have no obligation to perform any work therein. Subtenant shall be
entitled to enter the Subleased Premises 14 days prior to the Commencement Date
for the limited purpose of performing its fit-out and preparing for move in, but
for no other purpose without the prior written consent of Sublessor, which
consent shall not be unreasonably withheld, conditioned or delayed. Any such
entry shall be subject to the terms and provisions of the Master Lease and this
Sublease. In the event Master Landlord's consent has not been received 14 days
prior to the Commencement Date, and such consent is not thereafter received,
Subtenant agrees to remove its fit-out installations and return the Premises to
its condition prior to fit-out at Subtenant's expense, with the exception of
reinstalling any cubicles removed by Sublessor as provided in the next
paragraph.
Subtenant represents it has made a thorough examination of the Premises and
is familiar with the condition thereof. Subtenant acknowledges that it enters
into this Sublease without any representations or warranties by Sublessor or
Master Landlord, or anyone acting or purporting to act on behalf of Sublessor or
Master Landlord, as to the present or future condition of the building, the
Premises, the appurtenances thereto or any improvements therein, except as
specifically set forth in this Sublease. Subtenant acknowledges that Sublessor
is obligated to erect only a temporary wall to demise the premises from the
remaining space on the 4th floor of the building, until such time as Subtenant
elects to sublease adjacent space or Sublessor elects to sublease adjacent space
to an alternate subtenant. At such time as Sublessee elects to sublease adjacent
space or Sublessor elects to sublease adjacent space to an alternate subtenant,
then Sublessor shall erect a permanent demising wall as necessary to separate
the two adjacent tenants. Sublessor shall do so at no cost to Subtenant.
Sublessor agrees to remove certain cubicles from the premises as shown on the
floor plan attached hereto as Exhibit A.
8. RIGHT OF SECOND OFFER. Provided that no event of default by Subtenant
exists under this Sublease and Subtenant continually occupies the Premises,
after taking possession of the Premises, Sublessor will provide Subtenant with
notice (the "Notice") of any offers that Sublessor finds acceptable from any
prospective subtenant to sublease vacant space on the 4th floor of the Building
(the "Offered Space"). Subtenant acknowledges that its Right of Second Offer
("XXXX") is subordinate to the existing Right of First Offer held by Sublessor's
subtenant First Title and Escrow, Inc. Such Notice shall be given in the same
manner as provided for in paragraph 32 of this Sublease.
Subtenant shall have a period of five business days following delivery of
the Notice to notify Sublessor in writing that Subtenant has elected to sublease
all, but not less than all, of the Offered Space, on terms identical to those
contained in the Notice, accompanied by a check equal to 200% of the base
monthly rent which will be applied toward the first month's rent and a one month
security deposit.
Sublessor's Notice shall include the following information regarding the
Offered Space:
(a) rentable square feet,
(b) monthly rent,
(c) any contributions from Sublessor for subtenant improvements,
(d) term of sublease, and
(e) any options to extend the term.
If Subtenant complies with the requirements of this section, Subtenant
shall execute and deliver to Sublessor a sublease or amendment to this Sublease
for the Offered Space, within five business following the date on which
Sublessor submits such sublease or amendment to Subtenant. Unless otherwise
provided in the Notice, Subtenant shall take the space in its then "as is"
condition, unless there are provisions to the contrary in the offer. Sublessor
shall use reasonable efforts to make the space available to Subtenant at the
time specified in the Notice, but shall not be responsible for failure of any
then-existing subtenant to vacate other than to use reasonable efforts to evict
such subtenant.
In the event Subtenant fails to notify Sublessor that it elects to sublease
such space, or fails to execute and deliver the sublease or amendment within the
time periods described above, Subtenant's rights to the Offered Space shall
terminate, and Sublessor shall have the right to release the Offered Space or
any portion thereof to such party and upon such terms and conditions as
Sublessor may deem appropriate.
9. CARE, SURRENDER AND RESTORATION OF THE PREMISES. Upon the expiration or
earlier termination of this Sublease, Subtenant shall quit and surrender the
Premises and Sublessor's furnishings and equipment, in good order and condition,
ordinary wear and tear excepted. Subtenant shall surrender any approved
improvements to the space, provided Landlord has authorized Subtenant, in
writing, to leave any prior approved improvements in the Premises at the
conclusion of the sublease term and, subject to the terms of the Master Lease,
Subtenant shall remove all of its property therefrom. Subtenant shall surrender
the Premises in the same condition as required of Sublessor, as tenant, pursuant
to the Master Lease, except that Subtenant shall not be responsible for removal
of Sublessor's installations in the premises, if any, as required in Section 7.3
of the Master Lease. Subtenant's obligations hereunder shall survive the
expiration or earlier termination of this Sublease and/or the Master Lease.
10. SUBORDINATION TO THE MASTER LEASE. This Sublease and all of Subtenant's
rights hereunder are and shall remain in all respects subject and subordinate to
all of the terms, provisions, covenants, stipulations, conditions and agreements
of the Master Lease, and to all ground or underlying leases and to 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.
In furtherance of the foregoing, Subtenant shall not take any action or do
or permit to be done anything which (i) is or may be prohibited to Sublessor, as
tenant under the Master Lease, (ii) might result in a violation of, or default
under, any of the terms, covenants, conditions or provisions of the Master Lease
or any other instrument to which this Sublease is subordinate or (iii) would
result in any additional cost or other liability to Sublessor. This clause shall
be self-operative and no further instrument of subordination shall be required,
but Subtenant shall execute promptly any certificate confirming such
subordination that Sublessor or Master Landlord may request. In the event of any
inconsistency between this Sublease and the Master Lease, such inconsistency
shall be resolved in favor of the Master Lease, except that the Sublease shall
govern as to all payments of rent.
In the event that the Master Lease is canceled or terminated, Subtenant
shall, at the option of Master Landlord, attorn to and recognize Master Landlord
as Sublessor hereunder, and shall promptly upon Master Landlord's request,
execute and deliver all instruments necessary or appropriate to confirm such
attornment and recognition in accordance with the Master Lease, as modified by
this Sublease.. Subtenant hereby waives all rights under any present or future
law to elect, by reason of the termination of the Master Lease, to terminate
this Sublease or surrender possession of the Subleased Premises.
Subtenant shall indemnify Sublessor against, and hold Sublessor harmless
from, all liabilities, losses, obligations, damages, penalties, claims, costs
and expenses (including, without limitation, attorneys' fees and other costs)
which are paid, suffered or incurred by Sublessor as a result of the
non-performance or non-observance of any such terms, provisions, covenants,
stipulations, conditions, obligations or agreements by Subtenant, as they relate
to the Premises and Common Areas.
Notwithstanding the foregoing this Sublease is in all respects subject and
subordinate to any mortgage, deed, deed of trust, ground lease or other
instrument now or hereafter encumbering the Building or the land on which it is
located, to the terms and conditions of the Master Lease, and to the matters to
which the Master Lease, including any amendments thereto, is or shall be
subordinate. All terms, provisions, covenants, stipulations, conditions, rights,
obligations, remedies and agreements of the Master Lease are incorporated into
this Sublease by reference and made a part hereof as if herein set forth at
length, and shall as between Sublessor and Subtenant (as if they were Landlord
and Tenant, respectively under the Master Lease), constitute the terms of this
Sublease, except to the extent that they are expressly modified or eliminated by
the terms of this Sublease. Sublessor and Subtenant each agree to observe and be
bound by each and every covenant, condition and provision of the Master Lease
insofar as any such covenant, condition or provision affects the Premises or
Subtenant's use thereof. Subtenant acknowledges that it has reviewed and is
familiar with the Master Lease, and Sublessor represents that the copy of the
Master Lease attached hereto as Exhibit B is a true, correct and complete copy
of the Master Lease. Sublessor will perform all of the obligations of the tenant
pursuant to the Master Lease, except those undertaken by Subtenant pursuant to
this Sublease, and will indemnify Subtenant from any failure of Sublessor to do
so. Sublessor will not consent to a termination of the Master Lease, or to an
amendment of the Master Lease that adversely affects the Subtenant, without the
consent of the Subtenant.
11. SUBTENANT TO COMPLY WITH LEASE TERMS. Subtenant shall hold the Premises
pursuant and subject to the same terms, conditions, covenants and agreements
contained in the Master Lease and shall perform all such functions as are
required to be performed by Sublessor, as tenant/lessee therein, as to the
Premises. Subtenant hereby expressly assumes and agrees to keep, observe,
perform and be bound by all of the conditions, covenants, and agreements
contained in the Master Lease on the part of Sublessor to be kept, observed and
performed pertaining to the Premises (and Common Areas as defined in the Master
Lease) to the extent the Master Lease requires any obligations to be performed
on the part of Sublessor. Except as otherwise provided herein, all of the terms
and provisions of the Master Lease which are applicable to or binding upon
Sublessor, as tenant/lessee thereunder, relating to the Premises and Common
Areas (as defined in the Master Lease) shall also be applicable to or binding
upon Subtenant in the same manner as if such terms and provisions had been set
forth in full herein. All provisions of the Master Lease which inure to the
benefit of the Master Landlord therein, shall inure to the benefit of and be
enforceable by Sublessor herein as against Subtenant.
(a) Covenants with Respect to the Lease.
(i) Subtenant covenants and agrees that Subtenant shall not do
anything that would constitute a default under the Master Lease or omit to do
anything that Subtenant is obligated to do under the terms of this Sublease so
as to cause a default under the Master Lease.
(ii) In the event that Subtenant shall be in default of any term
or provision of, or shall fail to honor any obligation under this Sublease,
Sublessor, on giving the notice required by the Master Lease and subject to the
right, if any, of Subtenant to cure any such default as may be provided in the
Master Lease, shall have available to it all of the remedies available to
Landlord under the Master Lease in the event of a like default or failure on the
part of Sublessor as tenant thereunder. Such remedies shall be in addition to
all other remedies available to Sublessor at law or in equity.
(iii) It is agreed between both parties that the Subtenant will
have substantively the same rights as the Sublessor, except as specifically
noted herein
12. SUBLESSOR'S OBLIGATIONS. Sublessor shall have no responsibility to
Subtenant for, and shall not be required to provide, any of the services, make
any of the repairs, restorations, alterations or improvements, comply with any
laws or requirements or any governmental authorities or take any other action
that Master Landlord has agreed to provide, make, comply with or take or cause
to be provided, made or complied with or taken under the Master Lease and
Subtenant shall rely upon and look solely to the Master Landlord for the
provision or making thereof. Subtenant shall not make any claim against
Sublessor for any damage which may result from, nor shall Subtenant's
obligations hereunder, including, without limitation, Subtenant's obligation to
pay all rent when due, be impaired by reason of (a) failure of Master Landlord
to keep, observe or perform any of its obligations under the Master Lease
respectively, or (b) the acts or omissions of Master Landlord or any of its
agents, contractors, servants, employees, invitees or licensees, except that
Sublessee's rent shall be abated for inability to use the Premises if and to the
extent that Sublessor's rent for the Premises is abated pursuant to the Master
Lease. Should Master Landlord fail to comply with any or all obligations
affecting the Premises under the Master Lease Agreement, Sublessor will make a
good faith attempt to enforce Subtenant's rights.
Nothing contained in this provision shall be construed to permit Subtenant
to offset against the Subtenant's rent obligation due hereunder.
13. MAINTENANCE. Subtenant, at Subtenant's expense, shall maintain and keep
the Premises in good repair and in a clean and orderly condition and shall
assume all obligations of Sublessor under the Lease related to the maintenance
and repair of the Premises. Subtenant shall replace or make good any and all
damage, loss or breakage to the Premises, except ordinary wear and tear and
casualty damage not due to the negligence of Subtenant or its agents, employees,
servants, contractors, subcontractors, licensees or invitees.
14. INSURANCE. Subtenant will insure the Premises to the same extent as
Sublessor is required to maintain under the Master Lease. Any proceeds received
under such insurance shall be applied as provided in the Lease, except that
Subtenant shall be considered in the place of Sublessor as to the Premises.
15. ASSIGNMENT AND SUBLETTING. Subtenant shall not assign or sublease all
or a portion of the Premises to any other party without obtaining the prior
written consent of Sublessor, whose consent shall not be unreasonably withheld,
conditioned or delayed. In the event that Subtenant attempts or purports to
assign or sublease all or a part of the Subleased Premises to any other party in
violation of the terms of this paragraph, such action shall constitute a default
under the terms of this Sublease, entitling Sublessor to exercise all remedies
provided at law, in equity or under the Lease or this Sublease. Notwithstanding
any assignment or subletting, Subtenant shall not be relieved of its obligations
hereunder and a consent to one assignment or subletting shall not constitute a
further waiver of the provisions of this Section.
16. ALTERATIONS. Subtenant shall not make any alterations or changes to the
Premises whatsoever, including without limitation, structural or non-structural
changes, without the prior written consent of Sublessor and Master Landlord.
Sublessor will not unreasonably delay or withhold its consent to any such
request. In the event Master Landlord and Sublessor consent to the making of any
alterations, additions or improvements to the Premises by Subtenant, the same
shall be made by Subtenant, at Subtenant's sole cost and expense, and any
contractor or person selected by Subtenant to make the same must first be
approved in writing by the Master Landlord and Sublessor.
17. END OF TERM. Subtenant acknowledges that possession of the Premises and
Sublessor's furnishings and equipment must be surrendered to Sublessor on the
Expiration Date or earlier termination of this Sublease, in the same condition
as set forth in Article 9 hereof, subject to normal wear and tear. Subtenant
agrees to indemnify Sublessor against and hold Sublessor harmless from any and
all liabilities, losses, obligations, damages, penalties, claims, costs and
expenses (including, without limitation, attorneys' fees and other charges),
whether such are foreseen, unforeseen, special, direct, consequential or
otherwise, and which are paid, suffered or incurred by Sublessor as a result of
the failure of, or the delay by, Subtenant in so surrendering the Premises,
including, without limitation, any claims made by Master Landlord or any
succeeding tenant, founded on such failure or delay. The provisions of this
Article 17 shall survive the Expiration Date or earlier termination of this
Sublease and/or the Master Lease.
18. INSURANCE, DESTRUCTION, FIRE AND OTHER CASUALTY; CONDEMNATION. If the
whole or any part of the Premises shall be damaged by fire or other cause under
circumstances in which Master Landlord is required to make repairs or
restorations pursuant to the terms of the Master Lease, the sole obligation of
Sublessor shall be to use reasonable efforts to cause the obligation(s) of the
Master Lease to be fulfilled by Master Landlord, in accordance with the terms of
the Master Lease. The rent until such repairs or restorations shall be made
shall be apportioned pursuant to the provisions of the Master Lease. Under no
circumstances shall Subtenant receive an abatement of rent unless Sublessor
shall receive a corresponding abatement of rent from the Master Landlord
pursuant to the Master Lease, or unless said damage was caused by the negligence
or willful misconduct of Sublessor as provided in Section 9.3 of the Master
Lease.
Notwithstanding anything to the contrary herein or in the Master Lease,
Subtenant shall have the same right as Sublessor to terminate this Sublease by
reason of a casualty or condemnation affecting the Premises, as provided in
Section 9.1 of the Master Lease, except that Subtenant shall have a period of
fifteen (15) days to notify Sublessor of its election to terminate this
Sublease, by providing written notice to Sublessor. If by reason of such
casualty or condemnation, Master Landlord or Sublessor elects to terminate the
Master Lease in accordance with the provisions of the Master Lease, then upon
such termination of the Master Lease this Sublease shall be automatically
terminated as if such date were the Expiration Date and Sublessor shall have no
liability whatsoever to Subtenant by virtue of such termination with the
exception of the return of the Subtenant's security deposit within 30 days.
No damages, compensation or claims shall be payable by Sublessor for
inconvenience, loss of business or annoyance arising from such condemnation,
fire or other cause or any repair or restoration of any portion of the Premises
or of the building. Subtenant shall provide on or before the Commencement Date
and shall keep in force during the Term for the benefit of Sublessor and the
Master Landlord (which shall be named as additional insureds in any insurance
policy), the same insurance required by the Master Lease, except that references
to "the premises" in the Master Lease shall, for purposes of this sublease,
refer only to the Premises described herein. On or before the Commencement Date,
Subtenant shall deliver to Sublessor a certificate of insurance evidencing such
insurance. The Subtenant shall have the same rights and privileges as the
Sublessor as detailed in the Master Lease.
19. PARKING FACILITIES. Provided Subtenant is not in default under the
Sublease, Sublessor hereby grants to Subtenant license to park without charge a
maximum of 3.4 vehicles per 1,000 square feet of subleased space in the
unreserved parking spaces, subject to the provisions of Article 16 of the Master
Lease, for use solely by Subtenant and Subtenant's employees, guests and
invitees in the parking areas serving the building.
20. DEFAULT. The occurrence of any of the following events as a result of
Subtenant's acts or omissions shall constitute an event of default entitling
Sublessor to exercise those rights specified in the Master Lease as available to
the Landlord thereunder and any rights provided by law:
(a) failure to pay any installment of rent, additional rent or any
other payments due hereunder as and when the same shall become due and payable,
where such failure shall continue for a period of three (3) business days after
written notice thereof from Sublessor to Subtenant;
(b) breach of any term, condition or covenant of the Master Lease, as
applicable to the Premises and Common areas, or this Sublease;
(c) breach of any term, condition or covenant of the Lease imposed
therein on Sublessor and imposed under this Sublease on Subtenant;
(d) the occurrence of any event of default specified in the Master
Lease or this Sublease.
(e) with respect to subparagraphs (b), (c) and (d) above (non-monetary
defaults), Sublessor shall not exercise any of its remedies for default unless
and until Subtenant shall fail to cure any such default within ten (10) days of
receipt of notice of default from Sublessor (or such shorter period as may be
provided in the Lease). Furthermore, no failure by Sublessor to send notice of
default shall be deemed or construed to operate as a waiver of such default or
in any way relieve or release Subtenant of any of its obligations under this
Sublease.
21. SUBLESSOR'S RIGHT TO CURE DEFAULTS OF SUBTENANT. If Subtenant shall
fail to fulfill any of its obligations under the Master Lease or this Sublease,
Sublessor may, but shall not be obligated to, fulfill any obligations of
Subtenant hereunder and if Sublessor shall incur any costs in doing so, such
costs shall be additional rent due from Subtenant on the first to occur of
demand, or the date of the next rent payment, together with interest at the
highest rate allowed by law from the date expended until the date repaid.
22. INDEMNITY. Notwithstanding any provision of the Master Lease to the
contrary, Sublessor shall not be liable to Subtenant, or any of its agents,
employees, servants, or invitees for any damage to persons or property due to
the condition, design, or any defect in the building or its mechanical systems
that may exist or subsequently occur. Subtenant, with respect to itself or its
agents, employees, servants, and invitees, expressly assumes all risk and
damages to persons and property, either proximate or remote, by reason of the
present or further condition of the subleased Premises or any portion of the
Landlord's Premises. Subtenant agrees that it will indemnify and hold Sublessor
harmless from and against all suits, claims and actions of every kind by reason
of any breach, violation, or non-performance of any term or condition on the
part of the Subtenant under this Sublease. Additionally, Subtenant agrees to
indemnify and hold Sublessor harmless from all claims, actions, damages,
liabilities and expenses asserted against the Sublessor on account of injuries
to person or damage to property to the extent that any such damage or injury may
be caused, either approximately or remotely, by any act or omission, whether
negligent or not, of Subtenant or any of its agents, servants, employees,
contractors, patrons, or invitees (while such invitees are on the Premises), or
any other person entering upon the Premises under or with the expressed or
implied invitation of Subtenant, or if any such injury or damage made any other
way arises from or out of the occupancy or use by Subtenant, its agents,
employees and invitees of the Premises.
(a) Notwithstanding the foregoing Subtenant agrees to indemnify
Sublessor, Landlord and Landlord's managing agent (Sublessor, Landlord and
Landlord's managing agent are herein collectively referred to as the
"Indemnified Party") against and hold each Indemnified Party harmless from any
loss, cost or liability or expense (including without limitation reasonable
attorneys fees and related disbursements) incurred by such Indemnified Party by
reason of (i) any injuries to persons or damage to property occurring in, on or
about the Premises, other than those arising from the negligence or willful
misconduct of such Indemnified Party, (ii) any work or thing whatsoever done or
condition created by Subtenant in, on or about the Premises or the Building, or
(iii) any act or omission of Subtenant, its agents, contractors, servants,
employees, invitees, licensees, or (iv) any failure of Subtenant to perform or
observe any of the covenants or obligations required of Subtenant under this
Sublease. In furtherance of the foregoing, Subtenant shall not do or permit to
be done anything prohibited to Sublessor as tenant under the Master Lease or
take any action or do or permit any action which would result in any additional
cost or other liability to Sublessor or Landlord under the Master Lease or this
Sublease.
(b) In addition to, and not in limitation of the undertakings of
Subsection 22(a) above, wherever the Sublessor as tenant under the Master Lease
has agreed to indemnify the Landlord, Subtenant likewise agrees to indemnify
Sublessor and Landlord.
(c) Subtenant's obligations under this section 22 shall survive the
expiration or termination of this Sublease.
23. LITIGATION COSTS. If Sublessor is required to retain the services of an
attorney to enforce any of its rights in this Sublease Agreement, Subtenant
shall be required to pay the Sublessor's reasonable attorney's fees, in the form
of additional rent. In the event Sublessor institutes a judicial proceeding for
non-payment of rent or breach of Subtenant's obligations, seeking possession
and/or to terminate the lease, reasonable attorney's fees shall in no event be
less than $1,500.00.
24. SECURITY DEPOSIT. The Subtenant has this day deposited with the
Sublessor the sum of $9,517.50 as security for the payment of the rent hereunder
and the Subtenant's full and faithful performance of all covenants and
obligations to be performed by the Subtenant pursuant to this Sublease. Said sum
shall be returned to the Subtenant, within Thirty (30) days after the expiration
of the sublease term provided that the Subtenant has fully and faithfully
performed all such covenants and conditions and is not in arrears in rent.
During the term hereof the Sublessor may, if it so elects, have recourse to such
security, to make good any default by the Subtenant in which event the Subtenant
shall, on demand, promptly restore said security to its original amount. To the
extent that each sublessor delivers the deposit to its successor sublandlord,
liability to repay said security to the Subtenant shall run with the reversion
and title to said premises, whether any change in ownership thereof be by
voluntary alienation or as other result of judicial sale, foreclosure or other
proceedings or the exercise of a right of taking or entry by any mortgagee. The
Sublessor shall assign or transfer said security, for the benefit of the
Subtenant, to any subsequent owner or holder of the reversion or title to said
premises, in which case the assignee shall become liable for the repayment
thereof as herein provided, and the assignor shall be deemed to be released by
the Subtenant from all liability to return such security. This provision shall
be applicable to every alienation or change in title and shall in no way be
deemed to permit a sublessor to retain the security after termination of the
Sublessor's ownership of the reversion or title. The Subtenant shall not
mortgage, encumber or assign said security without the written consent of the
Sublessor.
25. REAL ESTATE BROKERS. Except for Xxxxxxx & Xxxxxxx Inc., Insignia ESG
and The Ezra Company, whose commissions shall be paid by Sublessor pursuant to a
separate agreement with Sublessor, the parties represent and warrant to each
other that no brokers or agents have been involved on behalf of such party in
connection with the consummation of the transactions contemplated by this
Sublease. Sublessor agrees to pay the commissions to Broker pursuant to such
separate agreement.
Subtenant represents and warrants to Sublessor that it has not communicated
with or negotiated with any other real estate Brokers regarding Sublessor's
property and/or this transaction. In connection therewith, each party agrees to
defend and indemnify and hold the other party harmless from and against any and
all claims for finders fees or brokerage or other commissions from any other
party which may at any time be asserted against the indemnified party founded
upon a claim that the substance of the aforesaid representation of the
indemnifying party is untrue, together with any and all losses, damages, costs
and expenses, including reasonable attorneys' fees and disbursements, relating
to such claims or arising therefrom or incurred by the indemnified party in
connection with this indemnification provision.
26. CONSENT OF LANDLORD. This Sublease is conditioned upon Sublessor
obtaining the consent of Landlord to the subletting provided for hereunder. In
this regard, Subtenant agrees to execute and deliver to Sublessor within three
(3) days of notice by Sublessor such documents and information as are reasonably
required to obtain Landlord's consent to such subletting. If the Landlord fails
to provide written consent for this Sublease Agreement within 35 days after
execution of this document by both parties, Subtenant has the right to terminate
the agreement.
27. FURNISHINGS, SIGNAGE AND TELECOMMUNICATIONS. Subtenant is hereby given
license to utilize the Sublessor's furnishings currently located in the Premises
and identified on Exhibit C annexed during the term of this Sublease. At the
conclusion of the term of the Sublease Subtenant will return possession of said
furnishings to Sublessor in the same condition as when received by Subtenant,
reasonable wear and tear excepted.
Sublessor shall make available to Subtenant lobby directory signage, and
provide Suite entry signage at no additional cost to Subtenant, consistent with
building standard signage as provided for in the Master Lease. Any additional
signage requested by Subtenant shall be at Subtenant's sole cost and expense and
Sublessor/Landlord's approval(s).
Subject to Master Landlord's approval Subtenant shall have the right to
utilize vendors of its choice to provide fiber optic or other telephone or
telecommunications service to the Premises and shall have the right to use the
vertical risers, conduits, and shafts, if necessary, in the building but not to
an extent to exceed Subtenant's proportionate share thereof.
28. BINDING AGREEMENT. This Sublease shall be binding upon the parties,
their heirs, legal representatives, successors or assigns. The executor,
administrator or personal representative of a deceased party shall execute and
deliver any documents or legal instruments necessary or desirable to carry out
the provisions of the Sublease.
29. ENTIRE AGREEMENT. This Sublease shall constitute the entire Agreement
between the parties. Any prior understanding or representation of any kind
preceding the date of this Sublease shall not be binding upon either party,
except to the extent incorporated in this Sublease.
30. WAIVER. A failure of either party at any time to require performance by
the other party of any provision of this Sublease shall in no way affect the
full right to require such performance at any time thereafter. The waiver of
either party to any provisions of this Sublease shall not be taken or held to be
a waiver of any succeeding breach of such provisions or as a waiver of the
provision itself.
31. SEVERABILITY. If any one or more of the terms or provisions contained
in this Sublease or any exhibit shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, the remainder of said term or provision
shall not be effected thereby and, to this end, the parties hereto agree that
the terms and provisions of this Sublease are severable.
32. NOTICES. All notices desired or required to be served hereunder may be
effected either by personal delivery in writing by mail, registered or
certified, postage prepaid with return receipt requested or by Federal Express,
UPS overnight or another recognized international overnight courier service that
provides receipts through the sender from the recipient. Notices delivered
personally shall be deemed communicated as if actual receipt; mailed notices
shall be deemed communicated the first business day after delivery. Notices
shall be provided to the parties at the following addresses:
If to Sublessor: Xxxxxx Xxxxxxx, Vice President
Synertech Health System Solutions, LLC
0000 Xxxx Xxxxx
Xxxxxxxxxx, XX 00000
with a copy to: Xxx Xxxxxx
Platinum Equity LLC
0000 Xxxxxxxxx 000xx Xxxxxx
Xx. Xxxxxxxxxx, XX 00000
If to Subtenant: Xxxx Xxxxxx, President & CEO
NewReach, Inc.
00 Xxxx Xxxx Xxxxx
Xxxxxxxxx, XX 00000
33. GOVERNING LAW. This Sublease shall be governed by and construed in
accordance with the laws of the State of Maryland. Any dispute between the
parties resulting in litigation shall be subject to the jurisdiction of the
Courts of Maryland and the county where the premises is situate.
34. LITIGATION BETWEEN THE PARTIES. If any action at law or in equity is
necessary to enforce or interpret the terms of this Sublease, the prevailing
party shall be entitled to reasonable attorney's fees, costs and necessary
disbursements in addition to any other relief that may be proper.
35. INTERPRETATION. The parties agree that they, and/or their respective
attorneys have reviewed and/or revised this document as necessary for their
mutual purposes and they hereby agree that any rule or construction to the
effect that any ambiguity or ambiguities is/are to be resolved against the
parties who drafted this document shall not apply with respect to interpretation
of this document or the agreement(s) of the parties.
IN WITNESS WHEREOF, the parties have heretofore set their hands and seals
the date above written.
SUBLESSOR: SUBTENANT:
AMISYS, LLC NeoReach, Inc.
By: /Xxxxxx Xxxxxxx/ By: /s/Xxxx Xxxxxx
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Name: Xxxxxx Xxxxxxx Name: Xxxx Xxxxxx
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Title: Vice President Title: President & CEO
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Date: Date:
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