SUBLEASE BETWEEN PARTMINER, INC., SUBLANDLORD AND FLAGSHIP HEALTHCARE MANAGEMENT, INC., SUBTENANT
EXHIBIT
10.1
SUBLEASE
BETWEEN
PARTMINER,
INC., SUBLANDLORD
AND
FLAGSHIP
HEALTHCARE MANAGEMENT, INC., SUBTENANT
SUBLEASE
made as of the 30th
day of
November, 2004, by and between PARTMINER, INC., a New York corporation, having
an office at 00 Xxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000 (hereinafter called
"Sublandlord"), and FLAGSHIP HEALTHCARE MANAGEMENT, INC., a Delaware
corporation, having an office at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
XX
00000 (hereinafter called "Subtenant").
W
I T N E
S S E T H
WHEREAS:
A. By
Standard Form of Loft Lease dated October 5, 2000, (which lease as the same
has
been or may be amended is hereinafter referred to as the "Xxxxxxxxx") 432 Park
South Realty Co. LLC (hereinafter called "Overlandlord") leased to Sublandlord
the entire 13th floor (hereinafter called the "Leased Space" or the “Premises”)
in the building known as 000 Xxxx Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx (hereinafter
called the "Building") in accordance with the terms of the Xxxxxxxxx. A true
and
complete copy of the Xxxxxxxxx (from which certain terms which do not relate
to
Subtenant's obligations hereunder have been deleted) is annexed hereto as
Exhibit
A.
B. Sublandlord
and Subtenant desire to consummate a subleasing of the Leased Space on terms
and
conditions contained in this agreement (hereinafter called the
"Sublease").
NOW,
THEREFORE, in consideration of the mutual covenants and agreements hereinafter
contained, it is hereby agreed as follows:
l.
1.1. Sublandlord
hereby leases to Subtenant and Subtenant hereby hires from Sublandlord the
Premises for a term (the "Sublease Term") to commence five (5) days after
Sublandlord sends written notice to Subtenant by overnight courier for next
day
delivery that (i) the Sublandlord has received the Overlandlord’s consent to
this Sublease, and (ii) the current subtenant has vacated the Premises and
the
Premises are vacant and available for Subtenant’s possession, provided
Sublandlord may give said notice prior to the date of actual vacancy by the
current subtenant, however, in no event shall the Sublease Commencement Date
commence prior to vacant delivery of the Premises to Subtenant (hereinafter
called the "Sublease Commencement Date") and to end on November 29, 2010
(hereinafter called the "Sublease Expiration Date"), at an annual fixed rent
(the “Fixed Rent”) of:
(i) Two
Hundred Seventy Thousand and 00/100 Dollars ($270,000.00) per annum in equal
monthly installments of Twenty Two Thousand Five Hundred and 00/100 Dollars
($22,500.00) per month during the period commencing sixty (60) days after the
Sublease Commencement Date and ending on December 31, 2005,
(ii) Two
Hundred Seventy Eight Thousand One Hundred and 00/100 Dollars ($278,100.00)
per
annum in equal monthly installments of Twenty Three Thousand One Hundred Seventy
Five and 00/100 Dollars ($23,175.00) per month during the period commencing
on
the January 1, 2006 and ending on December 31, 2006,
(iii) Two
Hundred Eighty Six Thousand Four Hundred Forty Three and 00/100 Dollars
($286,443.00) per annum in equal monthly installments of Twenty Three Thousand
Eight Hundred Seventy and 25/100 Dollars ($23,870.25) per month during the
period commencing on the January 1, 2007 and ending on December 31,
2007,
(iv) Two
Hundred Ninety Five Thousand Thirty Six and 29/100 Dollars ($295,036.29) per
annum in equal monthly installments of Twenty Four Thousand Five Hundred Eighty
Six and 36/100 Dollars ($24,586.36) per month during the period commencing
on
the January 1, 2008 and ending on December 31, 2008,
(v) Three
Hundred Three Thousand Eight Hundred Eighty Seven and 37/100 Dollars
($303,887.37) per annum in equal monthly installments of Twenty Five Thousand
Three Hundred Twenty Three and 95/100 Dollars ($25,323.95) per month during
the
period commencing on the January 1, 2009 and ending on December 31,
2009,
(vi) Three
Hundred Thirteen Thousand Three and 99/100 Dollars ($313,003.99) per annum
in
equal monthly installments of Twenty Six Thousand Eighty Three and 67/100
Dollars ($26,083.67) per month during the period commencing on the January
1,
2010 and ending on the Sublease Expiration Date,
to
be
paid by Subtenant to Sublandlord at Sublandlord's office (or such other location
as Sublandlord shall designate in writing) by check drawn on a bank which is
a
member of the New York Clearing House Association in advance, on the first
day
of each month during the Sublease Term without any set-off, off-set, abatement
or reduction whatsoever, except that Subtenant shall pay the first monthly
installment of annual fixed rent to Sublandlord upon the execution hereof which
Sublandlord will apply to the first month’s annual fixed rent due
hereunder.
Any
amount due from Subtenant to Sublandlord which is not paid when due shall bear
interest at ten percent (10%) per annum (the “Default Rate”), from the date
which is seven (7) days following the day such payment is due until paid, but
the payment of such interest shall not excuse or cure any default by Subtenant
under this Sublease. If Subtenant is more than five (5) days late in paying
any
installment of rent due under this Sublease, Subtenant shall further pay
Sublandlord a late charge equal to five percent (5%) of the delinquent
installment of rent. The parties agree that the amount of such late charge
represents a reasonable estimate of the cost and expense that would be incurred
by Sublandlord in processing each delinquent payment of rent by Subtenant and
that such late charge shall be paid to Sublandlord as liquidated damages for
each delinquent payment, but the payment of such late charge shall not excuse
or
cure any default by Subtenant under this Sublease. The parties further agree
that the payment of late charges and the payment of interest provided for above
are distinct and separate from one another in that the payment of interest
is to
compensate Sublandlord for the use of Sublandlord’s money by Subtenant, while
the payment of a late charge is to compensate Sublandlord for the additional
administrative expense incurred by Sublandlord in handling and processing
delinquent payments.
-2-
1.2
Fixed
Rent includes payments due under the Lease by Sublandlord to Overlandlord for
operating costs as provided in paragraph 124 of the Lease, and therefore
Subtenant shall have no obligation to pay the same.
2.
2.1 Except
as
set forth in the Xxxxxxxxx, Subtenant shall not (a) assign this Sublease, nor
(b) permit this Sublease to be assigned by operation of law or otherwise, nor
(c) underlet all or any part of the Premises, nor (d) permit the Premises or
any
desk space therein to be occupied by any person(s) other than Subtenant, nor
(e)
pledge or encumber this Sublease, the term and estate hereby granted or the
rentals hereunder. Subject to the terms of the Xxxxxxxxx and subject to
Sublandlord’s consent, which shall not be unreasonably withheld, Subtenant shall
have the right to assign this Sublease or sublet all of the Premises.
Sublandlord’s consent shall not be required for an assignment of this Sublease
or a further subletting of the Premises (in whole or in part) if such assignee
or sub-sublessee is an affiliate or successor (as defined in Section 87D of
the
Xxxxxxxxx) of Subtenant.
2.2 Notwithstanding
anything the contrary contained in Section 2.1 above or in the Xxxxxxxxx, except
for an assignment or sublet(s) as permitted by Section 87D of the Xxxxxxxxx
or
for subletting to any entity owned and controlled by Xxxx Xxxxx, Subtenant
shall
pay to Sublandlord one hundred percent (100%) of any profits or any other sums
received (other than the proceeds of a sale of the Subtenant’s business
or
other
sums allocated to services rendered by Subtenant) by Subtenant from any
sub-subtenant or assignees in excess of the Fixed Rent and additional rent
payable from Subtenant to Sublandlord pursuant to the terms of this Sublease.
In
computing such sums due Sublandlord hereunder, Subtenant may deduct the
reasonable out-of-pocket costs incurred for such assignment and/or subletting,
such as broker and legal fees, fix-up costs and rent concessions.
3.
3.1 Except
as
herein otherwise expressly provided herein and except for the obligation to
pay
rent and additional rent under the Xxxxxxxxx, all of the terms, covenants,
conditions and provisions in the Xxxxxxxxx are hereby incorporated in, and
made
a part of this Sublease, and such rights and obligations as are contained in
the
Xxxxxxxxx are hereby imposed upon the respective parties hereto, as the case
may
be; the Sublandlord herein being substituted for the Landlord named in the
Xxxxxxxxx, and the Subtenant herein being substituted for the Tenant named
in
the Xxxxxxxxx; provided,
however,
that
the Sublandlord herein shall not be liable for any defaults by Overlandlord;
provided Sublandlord will join Subtenant, or to the extent that Subtenant cannot
deal directly with Overlandlord, then notify any request of Subtenant to
Overlandlord for repairs or other matters required of Overlandlord under the
Lease at Subtenant’s sole cost and expense, however, there shall be no charge
for ministerial acts such as giving notice. If the Xxxxxxxxx shall be terminated
for any reason during the term hereof, then and in that event this Sublease
shall thereupon automatically terminate and Sublandlord shall have no liability
to Subtenant by reason thereof. Upon the termination of this Sublease, whether
by forfeiture, lapse of time or otherwise, or upon the termination of
Subtenant's right to possession, Subtenant will at once surrender and deliver
up
the Premises in condition and repair existing as of the Sublease Commencement
Date, reasonable wear and tear and casualty excepted and nothing herein or
in
the Xxxxxxxxx shall require the Subtenant to restore the Premises to the
condition it was in as of the Xxxxxxxxx Commencement Date. Notwithstanding
any
language to the contrary contained in this Sublease, Subtenant agrees that
Sublandlord may at any time after the date hereof surrender the Xxxxxxxxx and
the premises demised thereunder to Overlandlord, provided Overlandlord shall
simultaneously deliver a written agreement to Subtenant providing that
notwithstanding such surrender Overlandlord shall not disturb Subtenant's
occupancy of the Premises pursuant to the same terms and conditions hereof
at no
additional cost to Subtenant,
so long
as Subtenant is not in default hereunder if Subtenant shall at Overlandlord's
election either (i) attorn to Overlandlord as if Overlandlord were the
Sublandlord hereunder or (ii) enter into a lease with Overlandlord for the
remaining term of the Sublease on the same terms and conditions contained
herein.
In
addition, Subtenant may, but shall not be obligated to, cure any monetary
default of Sublandlord under the Xxxxxxxxx to preserve Subtenant’s rights to the
Premises, and in any such case, the amounts expended by Subtenant in curing
Sublandlord’s monetary default may be offset against the Fixed Rent or
additional rents coming due under this Sublease.
-3-
3.2. For
purposes of this Sublease, Articles 1, 52, 90,
104,
105, 107, 111, 125, 127, 129, 130, 131 and Exhibit A in the Xxxxxxxxx and all
references in the Xxxxxxxxx to the aforesaid Articles or Exhibit of the
Xxxxxxxxx together with rent in the preamble of Xxxxxxxxx, Articles 124
(operating costs) and 62 (broker) of the Xxxxxxxxx shall not be deemed
incorporated in or made a part hereof; and Subtenant shall have no obligations
arising thereunder.
4.
4.1 Subtenant
has examined the Premises, is aware of the physical condition thereof, and
agrees to take the same "as is," in its current condition and state of repair,
with the understanding that there shall be no obligation on the part of
Sublandlord to perform any work, supply any materials or incur any expense
whatsoever in connection with the preparation of the Premises for Subtenant's
occupancy thereof. Sublandlord shall have no obligations whatsoever to alter,
improve, decorate, or otherwise prepare the Sublease Premises for Subtenant’s
occupancy, except that on the Sublease Commencement Date, the Premises shall
be
vacant, there shall remain in the Premises the existing inventory (without
representation or warranty of any kind by Sublandlord with respect to the
condition of the same), as more particularly described on Exhibit
"B"
attached
hereto, which shall become Subtenant's property.
In
furtherance thereof, Sublandlord represents that it has the authority to convey
the Inventory to Subtenant and that the Inventory, when conveyed to Subtenant,
will be owned by Subtenant free and clear of all liens and claims of any kind.
On the Sublease Commencement Date, Sublandlord shall provide Subtenant with
a
xxxx of sale, with no representations or warranties of any type, for said
inventory, in the form set forth as Exhibit "C" attached hereto.
-4-
5.
5.1 Subtenant
agrees that the Premises shall be occupied only as general and executive offices
for Subtenant's business.
6.
6.1 This
Sublease is conditioned upon the consent by Overlandlord to this Sublease,
which
consent shall be evidenced by Overlandlord's signature appended hereto or a
separate consent in the form utilized by Overlandlord for such purposes.
Sublandlord agrees to promptly submit this Sublease to Overlandlord for its
consent and to pay all costs, expenses and fees due Overlandlord in connection
with this consent. Should the Sublease Commencement Date not occur by January
1,
2005, provided said failure is not in any manner due to Subtenant, then
Subtenant, at its option, may cancel this Sublease on or before January 15,
2005
and receive a prompt refund of all monies deposited or paid
hereunder.
6.2. Subtenant
stipulates that it is familiar with the provisions of Article 119 of the
Xxxxxxxxx. In the event that Overlandlord shall exercise any of its options
pursuant to Article 119 of the Xxxxxxxxx with respect to the Premises upon
Sublandlord's request for Overlandlord's consent to this Sublease, Sublandlord
will so notify Subtenant and, upon receipt of such notification by Sublandlord,
this Sublease shall be deemed to be null and void and without force or effect,
and Sublandlord and Subtenant shall have no further obligations or liabilities
to the other with respect to this Sublease, except that Sublandlord to promptly
refund to Subtenant all monies paid or deposited by Subtenant to Sublandlord
hereunder.
6.3. Sublandlord
makes no representation with respect to obtaining Overlandlord's approval of
this Sublease and, in the event that Overlandlord notifies Sublandlord that
Overlandlord will not give such approval, Sublandlord will so notify Subtenant
and, upon receipt of such notification by Sublandlord of the disapproval by
Overlandlord, this Sublease shall be deemed to be null and void and without
force or effect, and Sublandlord and Subtenant shall have no further obligations
or liabilities to the other with respect to this Sublease.
6.4. Except
as
otherwise specifically provided herein, wherever in this Sublease Subtenant
is
required to obtain Sublandlord's consent or approval, Subtenant understands
that
Sublandlord may be required to first obtain the consent or approval of
Overlandlord. If Overlandlord should refuse such consent or approval,
Sublandlord shall be released of any obligation to grant its consent or approval
whether or not Overlandlord's refusal, in Subtenant's opinion, is arbitrary
or
unreasonable. Subtenant agrees that Sublandlord shall not be required to dispute
any determinations or other assertions or claims of Overlandlord regarding
the
obligations of Sublandlord under the Xxxxxxxxx for which Subtenant is or may
be
responsible under the terms of this Sublease. Should Sublandlord elect not
to
dispute any such determinations, assertions or claims by Overlandlord,
Sublandlord hereby grants Subtenant the right to dispute the same in its own
name without Sublandlord's consent and the right to resolve such disputes to
its
own satisfaction, provided that Subtenant shall bear any and all costs and
expenses of any such dispute and/or settlement and provided further that
Sublandlord shall not be bound without its consent, not to be unreasonably
withheld or delayed, by any settlement, agreement or resolution reached by
Subtenant and Overlandlord in regard to any such dispute, or by any decree,
judgment or penalty resulting therefrom if such settlement agreement or
resolution requires Sublandlord to incur any expense.
-5-
7.
7.1. Subtenant
acknowledges that all services, repairs, restorations, equipment to the Premises
and access to the Building and for the Premises and any insurance coverage
of
the Building will in fact be provided by Overlandlord and Sublandlord shall
have
no obligation during the term of this Sublease to provide any such services,
repairs, restorations, equipment, access to the Building or insurance. Subtenant
agrees to look solely to Overlandlord for the furnishing of such services,
repairs, restorations, equipment, access and insurance. Sublandlord shall in
no
event be liable to Subtenant nor shall the obligations of Subtenant hereunder
be
impaired or the performance thereof excused because of any failure or delay
on
Overlandlord's part in furnishing such services, repairs, restorations,
equipment, access to the Building or insurance. If Overlandlord shall default
in
any of its obligations to Sublandlord with respect to the Premises, Subtenant
shall be entitled to participate with Sublandlord in the enforcement of
Sublandlord's rights against Overlandlord, but Sublandlord shall have no
obligation to bring any action or proceeding to enforce Sublandlord's rights
against Overlandlord. If, after written request from Subtenant, Sublandlord
shall fail or refuse to take appropriate action for the enforcement of
Sublandlord's rights against Overlandlord with respect to the Premises within
a
reasonable period of time considering the nature of Overlandlord's default,
Subtenant shall have the right to take such action in its own name, and for
that
purpose and only to such extent, all of the rights of Sublandlord under the
Xxxxxxxxx hereby are conferred upon and assigned to Subtenant and Subtenant
hereby is subrogated to such rights to the extent that the same shall apply
to
the Premises. If any such action against Overlandlord in Subtenant's name shall
be barred by reason of lack of privity, nonassignability or otherwise, Subtenant
may take such action in Sublandlord's name provided Subtenant has obtained
the
prior written consent of Sublandlord, which consent shall not be unreasonably
withheld or delayed, provided, Subtenant hereby agrees, that Subtenant shall
indemnify and hold Sublandlord harmless from and against all liability, loss,
damage or expense, including, without limitation, reasonable attorney's fees,
which Sublandlord shall suffer or incur by reason of such action.
7.2. Anything
contained in any provisions of this Sublease to the contrary notwithstanding,
Subtenant agrees, with respect to the Premises, to comply with and remedy any
default claimed by Overlandlord and caused by Subtenant and occurring on or
after the Sublease Commencement Date, within the period allowed to Sublandlord
as tenant under the Xxxxxxxxx, even if such time period is shorter than the
period otherwise allowed in the Xxxxxxxxx, due to the fact that notice of
default from Sublandlord to Subtenant is given after the corresponding notice
of
default from Overlandlord. Sublandlord agrees to promptly forward to Subtenant,
upon receipt thereof by Sublandlord, a copy of each notice of default received
by Sublandlord in its capacity as tenant under the Xxxxxxxxx or a copy of any
governmental notice it receives pertaining to the Premises. Subtenant agrees
to
forward to Sublandlord, upon receipt thereof, copies of any notices received
by
Subtenant with respect to the Premises from Overlandlord or from any
governmental authorities.
8.
8.1 Sublandlord
warrants and represents to Subtenant the following:
-6-
(a)
It
is the
holder of the interest of the tenant under the Xxxxxxxxx,
(b)
The
Xxxxxxxxx is in full force and effect,
(c)
To
the
best of Sublandlord’s knowledge, there is no event now which is, or with the
passage of time, the giving of notice and the expiration of applicable cure
periods could be a default on the part of the Overlandlord and/or Sublandlord
under the Xxxxxxxxx; and, to the best of Sublandlord’s knowledge, Overlandlord
is not in default of any services required to be delivered to tenant under
the
Xxxxxxxxx;
(d)
Sublandlord
has not received any notice from the Overlandlord;
(e)
Upon
Overlandlord’s consent to this Sublease Agreement, Subtenant shall have the
exclusive right to use and occupy the Premises subject only to the terms of
the
Xxxxxxxxx and the Sublease;
(f)
The
party
executing this Sublease Agreement on behalf of the Sublandlord and Subtenant
represent that he/she has the authority to enter into this Sublease Agreement;
and the execution and delivery of this Agreement is not in violation of any
agreement by and between Sublandlord or Subtenant, as the case may be, and
any
third party, and the execution and delivery of this Sublease Agreement does
not
require the consent of any Court of competent jurisdiction, administrative
agency or other third party other than the Overlandlord; and
(g) That
Exhibit A is a true and complete copy of the Xxxxxxxxx, and there are and have
been no modifications or amendments to the Xxxxxxxxx.
(h)
That
notwithstanding anything contained herein or elsewhere to the contrary,
Subtenant shall not be required to perform any act, or incur any expense for
anything that accrued in the Premises prior to the Sublease Commencement Date
unless due to Subtenant; and Subtenant shall have no obligation for conditions
in the Premises which pre-exist the Sublease Commencement Date as a result
of
Sublandlord or its prior subtenants/occupants use and occupancy.
9.
9.1 This
Sublease is subject to, and Subtenant accepts this Sublease subject to, any
amendments and supplements to the Xxxxxxxxx hereafter made between Overlandlord
and Sublandlord, provided that any such amendment or supplement to the Xxxxxxxxx
will not prevent or adversely affect the use by Subtenant of the Premises in
accordance with the terms of this Sublease, increase the obligations of
Subtenant or decrease its rights under the Sublease or in any other way
materially adversely affect Subtenant.
9.2. This
Sublease is subject and subordinate to the Xxxxxxxxx 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. This Section
9.2 shall be self-operative and no further instrument of subordination shall
be
required. To confirm such subordination, Subtenant shall execute promptly any
accurate certificate that Sublandlord may request.
-7-
10.
10.1 Subtenant
covenants, represents and warrants that Subtenant has had no dealings or
communications with any broker or agent in connection with the consummation
of
this Sublease other than Xxxxxxxx Real Estate Co. Inc. and Newmark & Company
Real Estate, Inc. (collectively, the “Broker”) and Subtenant covenants and
agrees to pay, hold harmless and indemnify Sublandlord from and against any
and
all cost, expense (including reasonable attorneys' fees) or liability for any
compensation, commissions or charges claimed by any broker or agent claiming
to
have dealt with Subtenant with respect to this Sublease or the negotiation
thereof other than Broker. Sublandlord shall pay the Broker its commission
pursuant to a separate agreement and shall hold Subtenant harmless from claims
by Broker or from any compensation due any other broker that claims to have
dealt with Sublandlord.
11.
11.1. Subtenant
stipulates that it is familiar with the provisions of Article 113 of the
Xxxxxxxxx. Commencing January 1, 2006, Subtenant shall pay as additional rent
pursuant to this Sublease its share of Article 113 Rent (hereinafter called
“Article 113 Rent”) based upon a modified base year of January 1, 2005 through
December 31, 2005 (the “Modified Base Year”); it being the intention that
Subtenant’s real estate tax contribution shall be equal to one hundred (100%) of
increases in real estate taxes (as defined in Article 113 of the Xxxxxxxxx)
over
the real estate taxes imposed for the Modified Base Year. At any time after
receipt by Sublandlord from Overlandlord of any Article 113 Rent statement,
Sublandlord may deliver to Subtenant a statement with respect to the payment
of
the Article 113 Rent and, within twenty (20) days after delivery of such
statement, Subtenant shall pay to Sublandlord additional rent determined as
aforesaid in this Section 11.1. Additional rent payable pursuant to this Section
11.1 shall be based solely upon actual payments made by Sublandlord pursuant
to
the provisions of Article 113 of the Xxxxxxxxx. Sublandlord shall be under
no
obligation to contest any such payment and Sublandlord shall furnish to
Subtenant evidence of such payment.
11.2 Subtenant
shall also pay to Sublandlord any Tenant Surcharges (as that term is hereinafter
defined). “Tenant Surcharges” shall mean any and all amounts other than Fixed
Rent, Article 113 Rent and rent due under Article 124 of the Xxxxxxxxx which,
by
the terms of the Xxxxxxxxx, become due and payable by Sublandlord to
Overlandlord as additional rent or otherwise from and after the Sublease
Commencement Date (unless due to Subtenant) and which would not have become
due
and payable but for the acts, requests for services, and/or failures to act
of
Subtenant, its agents, officers, representatives, employees, servants,
contractors, invitees, licensees or visitors under this Sublease, including,
but
not limited to: (i) any increases in Overlandlord's fire, rent or other
insurance premiums, as provided in the Xxxxxxxxx, resulting from any act or
omission of Subtenant, (ii) any additional charges to Sublandlord on account
of
Subtenant's use of heating, ventilation or air conditioning after hours, (iii)
any charges which may be imposed on Sublandlord, to the extent that such charges
are attributable to the Premises or the use thereof or services or utilities
provided thereto from and after the Sublease Commencement Date (unless due
to
Subtenant), and (iv) any additional charges to Subtenant on account of
Subtenant's use of cleaning and elevator services after hours or in excess
of
normal usage. Within a reasonable time after receipt by Sublandlord of any
statement or written demand from Overlandlord including any Tenant Surcharges,
Sublandlord will furnish Subtenant with a copy of such statement or demand,
together with Sublandlord's statement of the amount of any such Tenant
Surcharges, and Subtenant shall pay to Sublandlord the amount of such Tenant
Surcharges within twenty (20) days after Subtenant's receipt of such statement
or demand; provided,
however,
that in
any instance in which Subtenant shall receive any such statement or demand
directly from Overlandlord, Subtenant may pay the amount of the same directly
to
Overlandlord. Payments shall be made pursuant to this Section 11.2
notwithstanding the fact that the statement to be provided by Sublandlord is
furnished to Subtenant after the expiration of the term of this Sublease and
notwithstanding the fact that by its terms this Sublease shall have expired
or
have been cancelled or terminated; provided that any such charges shall have
accrued during the Sublease Term.
-8-
12.
12.1 Any
notice, demand or communication which, under the terms of this Sublease or
under
any statute or municipal regulation must or may be given or made by the parties
hereto, shall be in writing and given or made by mailing the same by registered
or certified mail, return receipt requested, or by reputable overnight courier,
in each case addressed as follows (or addressed and sent to such other place
as
either party may from time to time designate in a notice to the
other):
|
Subtenant
(prior to Sublease
|
Flagship
Healthcare Management, Inc.
|
|
|
Commencement
Date):
|
000
Xxxxxxx Xxxxxx, 00xx Xxxxx
|
|
|
Xxx
Xxxx, XX 00000
|
||
|
Attention:
Chief Financial Officer
|
||
|
Subtenant
(subsequent to
|
Flagship
Healthcare Management, Inc.
|
|
|
Sublease
Commencement Date):
|
000
Xxxx Xxxxxx Xxxxx, 00xx
Xxxxx
|
|
|
Xxx
Xxxx, XX 00000
|
||
|
Attention:
Chief Financial Officer
|
||
|
With
a copy of default notice to:
|
Mandell,
Mandell, Xxxx & Xxxxxxx, LLP
|
|
|
0000
Xxxxxx Xxxxxx, Xxxxx 0X0
|
||
|
Xxxx
Xxxxxxx, XX 00000
|
||
|
Attention:
Xxxx X. Xxxxxxx, Esq.
|
||
|
Sublandlord:
|
PartMiner,
Inc.
|
|
|
00
Xxxxxx Xxxx
|
||
|
Xxxxxxxx,
Xxx Xxxx 00000
|
||
|
Attention:
Xx. Xxxxxxx X. Xxxxxx
|
||
|
With
a copy of default notice to:
|
Until
November 11, 2004:
|
|
|
Xxxxxxxx
Xxxxx Singer & Xxxxxxxxx, LLP
|
||
|
000
Xxxxxxxxx Xxxxxx
|
||
|
Xxx
Xxxx, Xxx Xxxx 00000
|
||
|
Attention:
Xxxxxxx Xxxxxxxxx, Esq.
|
||
|
After
November 11, 2004:
|
||
|
Xxxxxxxx
Xxxxx LLP
|
||
|
000
Xxxxx Xxxxxx
|
||
|
Xxx
Xxxx, Xxx Xxxx 00000
|
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Attention:
Xxxxxxx Xxxxxxxxx, Esq.
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All
notices shall be deemed to have been received upon receipt or refusal of
receipt.
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13.
13.1. Subtenant's
use of electric current in the Premises shall not at any time exceed the
capacity of any of the electrical conductors and equipment in or otherwise
serving the Premises. Subtenant shall not make or perform or permit the making
or performing of, any alterations to wiring installations or other electrical
facilities in or serving the Premises without the prior consent of Overlandlord
and Sublandlord in each instance. In no event shall any installation of
additional lighting, electrical appliances and equipment result in an increase
in Sublandlord's own expenses for electrical energy usage under the Xxxxxxxxx
unless the same constitutes a Tenant Surcharge. Subtenant hereby agrees to
pay
all costs of operating such additional lighting, appliances and equipment,
and
agrees to indemnify Sublandlord for any and all costs that may be charged to
Sublandlord by reason of Subtenant's installation or use of such additional
lighting, appliances and equipment. If, as a condition to giving its consent
to
such installation, Overlandlord requires Sublandlord to pay for the additional
facilities needed to provide the additional capacity, Subtenant will, as and
when such payment or payments are required to be made, pay Sublandlord the
amount of such payment or payments.
13.2. Sublandlord
shall not be liable in any way to Subtenant for any failure or defect in the
supply or character of electric energy furnished to the Premises by reason
of
any requirement, act or omission of the public utility serving the Building
with
electricity or for any other reason not attributable to Sublandlord.
14.
14.1 Subtenant
may make no changes, alterations, additions, improvements or decorations in,
to
or about the Premises without Sublandlord's prior written consent and, to the
extent required by the Xxxxxxxxx, Overlandlord’s consent. Notwithstanding the
foregoing, Subtenant may, in accordance with the terms of the Xxxxxxxxx, perform
the following work in the Premises: paint the Premises, clean or replace the
carpeting, install portable partitions, install mirror by 13th
floor
elevators and install additional lighting, if necessary.
15.
15.1 Intentionally
deleted.
16.
16.1 So
long
as Subtenant pays all of the rent and additional rent due under this Sublease
and performs all of Subtenant's other obligations hereunder, Sublandlord shall
not disturb or terminate Subtenant's leasehold estate hereunder, subject,
however, to the terms, provisions and obligations of this Sublease and the
Xxxxxxxxx.
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17.
17.1 This
Sublease may not be changed orally, but only by an agreement in writing signed
by the party against whom enforcement of any waiver, change, modification or
discharge is sought.
17.2. This
Sublease shall not be binding upon Sublandlord unless and until it is signed
by
Sublandlord and a fully-executed counterpart thereof has been delivered to
Subtenant. This Section 17.2 shall not be deemed to modify the provisions of
Article 6 hereof.
17.3. This
Sublease constitutes the entire agreement between the parties and all
representations and understandings have been merged herein.
17.4. This
Sublease shall inure to the benefit of all of the parties hereto, their
successors and (subject to the provisions hereof) their assigns.
17.5. The
term
"Sublandlord" as used in this Sublease shall mean only the Sublandlord named
herein, so that in the event of any assignment of the Xxxxxxxxx, the Sublandlord
named herein shall be and hereby is entirely freed and relieved of all future
covenants, obligations and liabilities of Sublandlord hereunder, and it shall
be
deemed and construed without further agreement between the parties or their
successors in interest that the assignee of the Xxxxxxxxx has assumed and agreed
to carry out any and all such covenants, obligations and liabilities of
Sublandlord hereunder.
17.6. Upon
the
expiration of the Sublease Term or any earlier termination of the Sublease,
Subtenant shall remove Subtenant's property and surrender the Sublease Premises
to Sublandlord broom-clean and in good condition, ordinary wear and tear and
damage from causes beyond Subtenant's reasonable control excepted.
If
Subtenant retains possession of the Sublease Premises or any part thereof after
the expiration of the Sublease Term or earlier termination of the Sublease,
Subtenant shall become a tenant from month-to-month until such possession shall
cease, and Subtenant shall pay to Sublandlord (i) an amount equal to two and
one-half times the immediately preceding Fixed Rent for the time Tenant thus
remains in possessions, (ii) an amount equal to two and one-half times the
additional rent for such period, including any adjustment of rents pursuant
to
the Sublease, and (iii) all damages, consequential and direct, sustained by
Sublandlord by reason of Subtenant's retention of possession.
Nothing
contained in the Lease shall be construed as a consent by Sublandlord to the
occupancy or possession by Subtenant of the Sublease Premises beyond the
expiration or prior termination of the Sublease Term, and Sublandlord, upon
such
expiration or prior termination of the Sublease Term shall be entitled to the
benefit of all legal remedies now in force or hereafter enacted relating to
the
speedy repossession of the Sublease Premises.
-11-
18.
18.1 Subtenant
shall deposit with Sublandlord on the signing of this Sublease, a clean,
unconditional, irrevocable and transferable letter of credit (the “Letter of
Credit”) in the amount of One Hundred Thirty Five Thousand and 00/100 Dollars
($135,000.00), satisfactory to Sublandlord, issued by and drawn on a bank
satisfactory to Sublandlord, for a term of not less than one (1) year, as
security for the faithful performance and observance by Subtenant of the terms,
covenants, conditions and provisions of this Sublease, including, without
limitation, the surrender of possession of the Premises to Sublandlord as herein
provided. Notwithstanding the foregoing, two (2) years after the Sublease
Commencement Date, the amount of such Letter of Credit shall be reduced to
the
sum of Seventy-One Thousand Six Hundred and 00/100 Dollars ($71,600.00);
provided that, Subtenant has met or exceeded the following financial target:
Subtenant's cash balance as of December 31, 2006 is equal to or exceeds the
annualized, aggregated, cash burn rate of the third and fourth quarter of 2006.
In the event the cash balance is lower than the annualized cash burn rate then
the amount secured by the Letter of Credit will remain unchanged from the
previous year. The cash burn rate will be equal to EBITDA as defined by GAAP,
minus capital expenditures, debt and interest payments, equity distributions
and
dividends. If an event of default under this Sublease shall occur and be
continuing after Sublandlord’s notice, if required hereunder, and the expiration
of the applicable cure period, if any, Sublandlord may present the Letter of
Credit for payment and apply the whole or any part of the proceeds thereof,
as
the case may be, (i) toward the payment of any fixed rent, Article 113 Rent,
additional rent or any other item of rental as to which Subtenant is in default,
(ii) toward any sum which Sublandlord may expend or be required to expend by
reason of Subtenant’s default in respect of any of the terms, covenants and
conditions of this lease, including, without limitation, any damage, liability
or expense (including, without limitation, reasonable attorneys’ fees and
disbursements) incurred or suffered by Sublandlord, and (iii) toward any damage
or deficiency incurred or suffered by Sublandlord in the reletting of the
Premises, whether such damages or deficiency accrue or accrues before or after
summary proceedings or other re-entry by Sublandlord. If Sublandlord applies
or
retains any part of the proceeds of the Letter of Credit, Subtenant, upon
demand, shall deposit with Sublandlord the amount so applied or retained so
that
Sublandlord shall have the full deposit on hand at all times during the Term.
If
Subtenant shall fully and faithfully comply with all of the terms, provisions,
covenants and conditions of this Sublease, the Letter of Credit shall be
returned to Subtenant after the end of the term of the Sublease, as same may
be
extended, and after delivery of possession of the Premises to Sublandlord.
Subtenant shall not assign or encumber or attempt to assign or encumber the
Letter of Credit and neither Sublandlord nor its successors or assigns shall
be
bound by any such assignment, encumbrance, attempted assignment or attempted
encumbrance. Subtenant shall renew any Letter of Credit from time to time,
at
least thirty (30) days prior to the expiration thereof, and deliver to
Sublandlord a new Letter of Credit or an endorsement to the Letter of Credit,
and any other evidence required by Sublandlord that the Letter of Credit has
been renewed for a period of at least one (1) year. If Subtenant shall fail
to
renew the Letter of Credit as aforesaid, Sublandlord may present the Letter
of
Credit for payment and retain the proceeds thereof as security in lieu of the
Letter of Credit.
-12-
19.
19.1
Subtenant acknowledges that the Premises are now occupied by Niteo Partners,
Inc. ("NPI") and that this Sublease is subject to the termination of the current
sublease between NPI and PartMiner, Inc. and NPI's vacation of the
Premises.
20.
20.1 If
necessary, Sublandlord shall join in Subtenant’s initial request to Overlandlord
(which shall be limited to writing a letter and making a telephone call to
Overlandlord) to list Subtenant on the Building’s lobby directory, if
any.
-13-
IN
WITNESS WHEREOF, the parties have hereunto set their hands and seals as of
the
day and year first above written.
PARTMINER,
INC., Sublandlord
By:
/s/
Xxxxxxx X. Xxxxxx
Name:
Xxxxxxx X. Xxxxxx
Title:
President
FLAGSHIP
HEALTHCARE MANAGEMENT, INC., Subtenant
By:
/s/
Xxxxxxx X. Xxxxxx
Name:
Xxxxxxx X. Xxxxxx
Title:
President
Landlord’s
Consent and Acknowledgment:
Landlord,
432 Park South Realty Co., LLC, hereby consents to the above Sublease to
Flagship Healthcare Management, Inc.
Dated:
November __, 2004
Landlord
432
PARK
SOUTH REALTY CO., LLC
By:
Name:
Title:
-14-
