EXHIBIT 10.8
SUBLEASE AGREEMENT
SUBLEASE AGREEMENT (this "Sublease"), dated as of the 1st day of February
1, 2004, by and between Pr0HEALTH CORP, New York corporation with offices at
0000 Xxxxxx Xxxxxx, Xxxx Xxxxxxx, Xxx Xxxx 00000 ("Sublessor") and Critical Home
Care, Inc., a Nevada Corporation, with offices at 000 Xxxxx Xxxxxx Xxxxxxxx, Xxx
Xxxx 00000 (collectively, "Sublessee").
WHEREAS, Sublessee desires to sublease approximately 750 square of rentable
space.
WHEREAS, Sublessor has agreed to sublease the Sublet Premises to Sublessee
on the terms and conditions hereinafter set forth.
NOW, THEREFORE, the parties agree as follows:
1. Sublet Premises and Equipment
1.1 In consideration of and subject to the terms, covenants and conditions
herein contained and reserved on the part of Sublessee to be kept, observed and
performed, Sublessor hereby rents and leases the Sublet Premises to Sublessee
and Sublessee hereby hires and takes the Sublet Premises from Sublessor. During
the term of this Sublease, Sublessee shall also have the non-exclusive, limited
right to use common hallways, bathrooms and elevators located of the Building
(the " Areas" for reasonable ingress and egress to and from the Sublet Premises
subject to such reasonable rules and regulation established by Owner from time
to time
1.2 Sublessor shall also have the right to use the office furniture,
furnishings, equipment and supplies located in the Sublet Premises. Sublessee
shall take good care of the Equipment throughout the term hereof and shall
maintain the Equipment in good working order, repair and condition throughout
the term hereof The Equipment shall not be removed from the Sublet Premises
under any circumstances without Sublessor's prior written consent in each
instance. Sublessee further acknowledges that the Equipment "as is" and
Sublessor makes no warranties, express or implied, concerning the Equipment,
including without limitation, any warranty of fitness for a particular purpose
or of merchantability. Sublessee hereby waives any claim (including, without
limitation, any claim based on strict or absolute liability in tort) it might
have against Sublessor for any loss, damage (including without limitation,
incidental or consequential damage) or expense caused by the Equipment.
1.3 Sublessee hereby agrees to accept the Sublet Premises in its "as is"
condition without representation or warranty, express or implied, by Sublessor
and without recourse to Sublessor. Except as specifically set forth herein,
Sublessor shall not be responsible for any defect in or to the Sublet Premises
or any changes therein and the Rent (defined below) shall in no event be
withheld, abated or diminished on account of any defect, change or damage to the
Sublet Premises.
2. Prime Lease
2.1 This Sublease and Sublessee's use of the Sublet Premises is and, at all
times shall be, subject and subordinate, in all respects, to the terms and
conditions of the Prime Lease. Except as otherwise specifically provided herein,
the Sublet Premises are hereby leased pursuant to the terms and conditions of
the Prime Lease and Sublessee hereby covenants and agrees to keep and perform
each and every covenant, term and condition of Sublessor under the Prime Lease,
which relate to the Sublet Premises, except for the payment of base rent as set
forth in Section 3(a) and (b) of the Prime Lease. Sublessee hereby covenants and
agrees not to take or cause any act to be taken that will constitute a default
under the Prime Lease. Sublessor shall have all the rights and benefits of the
Landlord under the Prime Lease as the same relates to the Sublet Premises and
Sublessee and Sublessee shall have all the rights, benefits and obligations of
the of Sublessor, as tenant tinder the Prime Lease as same relates to the Sublet
Premises. Any consent or approval relating to the Sublet Premises required of
Landlord under Prime Lease shall also require the consent or approval of
Sublessor, which consent or approval of Sublessor shall, except as otherwise
provided herein, not be unreasonably withheld or delayed.
2.2 Notwithstanding any contrary provision contained herein, the Prime
Lease shall not apply to this Sublease and, Sublessee shall have no rights or
obligations thereunder.
2.3 Sub shall look solely to Landlord for performance of all obligations
and the rendition of all services which are the obligations of Landlord under
the Prime Lease and Sublessor shall not be responsible therefor. Failure by
Landlord to furnish any services or any cessation thereof, shall not render
Sublessor liable in any respect for damages to either person or property, nor be
construed as an eviction of Sublessee, nor entitle Sublessee to an abatement of
the Rent (defined below) payable hereunder, nor relieve Sublessee from
fulfillment of any covenant or agreement hereof.
3. Term
3.1 The term of this Sublease shall co on March 1,2004 (the " Date"), and
shall end and expire on February 29, 2012, unless extended or sooner terminated
as hereinafter provided.
4. Rent
4.1 Commencing as of the Commencement Date and for the balance of the term
of this Sublease, Sublessee covenants and agrees to pay Sublessor, annual base
rent ("Base Rent") in the amount $33,000, with no annual increases per year for
the entire term of the sublease.
4.2 Except as otherwise expressly provided herein, Rent is payable at such
address as Sublessor may designate in writing from time to time.
4.3 The compensation payable to Sublessor under this Sublease has been
determined by the parties through good-faith and arm's length bargaining to be
the fair market value for the leasing of space, equipment and services provided
under hereunder. No amount paid or advanced, and no benefit conferred under or
in anticipation of, this Sublease is or is intended to be, or is in any way
contingent upon, an inducement or payment for a referral of patients by or to
Sublessor or Sublessee or any of their affiliates, or as an inducement or
payment for the purchasing, leasing, ordering or arranging for, or recommending
the purchasing, leasing or ordering of any goods or services.
5. Use.
5.1 The Sublet Premises shall be used for medical offices by no more than
one (1) clinician or other health care professionals in any single day and for
no other purpose or use.
6. Assignments and Subletting
6.1 Sublessee shall not assign, mortgage, pledge or encumber this Sublease
or any interest hereunder, in whole or in part, and shall not sublet or underlet
the Sublet Premises or any part thereof, nor shall Sublessee permit the use of
the Sublet Premises in any manner whatsoever by any other parties, without the
prior written consent of the Sublessor in each instance. The transfer of control
or ownership of Sublessee (whether pursuant to a stock, partnership, membership
or other transfer) shall be deemed as assignment of this Sublease requiring
Sublessor' consent.
6.2 Sublessee shall pay to Sublessor, as and when received, any sums
received by Sublessee for an assign of this Sublease, or any excess of the
rents, additional rents or other amounts received by Sublessee from any
subtenant or other occupant for the Sublet Premises over the Rents paid by
Sublessee under this Sublease. If the sublease or occupancy right is for less
than all of the Sublet Premises, this calculation shall take into account only
the portion of the Rents paid by Sublessee as are allocable, on a per square
foot basis, to the portion of the Sublet Premises subject to such sublease or
occupancy right.
6.3 If this Sublease is assigned or if all or any part of the Sublet
Premises are sublet, Sublessor may collect rent from the assignee or from the
subtenant without same constituting Sublessor's consent to such assignment or
sublease and without same constituting a waiver of any term, covenant or
condition of this Sublease or Sublessor's acceptance of such assignee or
subtenant. No assignment, subletting, occupancy or use right shall relieve
Sublessee from its obligations under this Sublease.
7. Utilities and Services
7.1 Provided Sublessee shall not be in default hereunder, the following
specifically described utilities and services shall be furnished by Sublessor to
Sublessee during the term of this Sublease:
(a) Heating and Air Conditioning Heat and air conditioning to the
Sublet Premises from 9:00 a.m. until 5:00 p.m, every day except Saturday,
Sundays and Holidays (defined below) and from 9:00 a.m. until 12:00 p.m. on
Saturdays (collectively, the "Building Hours"), all during the customary
periods of the year when and to the extent such services are necessary for
the reasonable use of the
Sublet Premises. For purposes hereof, Holidays shall be defined as
Christmas, New Year's Day, Labor Day, July 4th, Memorial Day and
Thanksgiving; and
(b) Elevator Service Elevator service during Building Hours for the
use of all occupants of the Building, and the employees and invitees of all
occupants, provided that Sublessor shall have at least one (1) elevator
subject to call at all times; and
(c) Electricity Electric current to the Sublet Premises during
Building Hours for lighting and ordinary medical equipment and appliances
provided Sublessee shall not use any electrical equipment which, in
Sublessor's reasonable opinion, will overload the electrical wiring of the
Building or interfere with the reasonable use thereof by Sublessor or other
occupants in the Building; and
(d) Hot and Cold Water Hot and cold water to the Premises during
Building Hours in reasonable quantities for all normal medical purposes;
and
(e) Utilities and Maintenance of Common Areas Heat, air conditioning,
electricity, lighting and maintenance of the Common Areas.
7.2 Sublessor shall not be held liable and shall have no liability to
Sublessee for: (i) any failure of water supply, electric current or any services
by any utility company; (ii) injury to person (including death) or damage to
property resulting from steam, gas, electricity, water, rain or snow which may
flow or leak from any part of the Building, the parking areas, or from any
pipes, appliances, plumbing works from the street or subsurface or from any
other place; and (iii) temporary interference with lights or other easements.
8. Insurance
8.1 At all times during the term hereof, Sublessee shall, at its own cost
and expense, provide and keep in full force and effect the policies of insurance
required under the Prime Lease and shall name Sublessor as an "additional
insured" or "loss payee," as the case may be, thereon. In addition, at all times
during the term hereof, Sublessee shall, at its own cost and expense, provide
and keep in full force and effect professional liability insurance for each
physician employed by, engaged by, or providing services at the Sublet Premises
in the minimum amount of $1,000,000 for each occurrence and $3,000,000 in the
annual aggregate.
8.2 Sublessee shall deposit with Sublessor certificates of insurance for
all insurance required hereunder prior to Sublessee's possession of the Sublet
Premises and at least thirty (30) days prior to the expiration date of any
policy, together with satisfactory evidence that the premium thereon has been
paid. All of Sublessee's insurance policies shall be with such companies
reasonably approved by Sublessor and shall be endorsed to indicate a waiver of
subrogation of the insurers against Sublessor. Such insurance policies shall
contain a provision requiring thirty (30) days prior written notice to Sublessor
in the event of cancellation, termination and non-renewal.
9. Default
9.1 Each of the following shall constitute an "Event of Default" under this
Sublease:
(a) If Sublessee fails to make any payment of Rent on the due date
hereof or fails to pay or expend promptly when due any sum of money due or
required to be paid or expended hereunder and such failure continues for
ten (10) days after written notice of default is delivered to Sublessee; or
(b) If Sublessee fails to comply with any term, covenant or condition
herein contained when same are to be performed by Sublessee (other than a
covenant for the payment of Rent or to pay or expend any sum of money) and
such failure continues for thirty (30) days after written notice of default
is delivered to Sublessee; or
(c) If, at any time during the term hereof, Sublessee shall default or
fail to perform or comply with each and every term, covenant and condition
of thc Prime Lease as same relates to the Sublet Premises; or
(d) If any proceedings under the federal bankruptcy laws shall be
commenced by or against Sublessee and such proceeding shall not be
dismissed within forty-five (45) days of the commencement of such
proceeding, or if Sublessee is adjudged insolvent or makes and assignment
for the benefit of its creditors, or if a receiver is appointed in any
proceeding or action to which Sublessee is a party, with the authority to
take possession or control of the Sublet Premises or the assets of
Sublessee and such receiver is not discharged within forty- five (45) days
after his appointment.
9.2 If any of the foregoing Events of Default shall occur, Sublessor may
give written notice to Sublessee in the manner provided in this Sublease,
specifying the respect or respects in which Sublessee shall be in default under
the terms of this Sublease and if Sublessee shall not have cured such default
within three (3) days after the giving of such notice, then Sublessor may
terminate this Sublease by giving notice in writing to the effect that this
Sublease shall terminate and end on a day to be named in said notice which day
shall be at least three (3) days subsequent to the date of the giving of said
notice, and thereupon this Sublease shall terminate and end upon the day named
therein as fully and completely as if the expiration of said three (3) days
period were the day herein definitely fixed for the end and expiration of this
Sublease and the term hereof and Sublessee shall then quit and surrender the
Sublet Premises to Sublessor, but Sublessee shall remain liable as herein
provided. Sublessee waives all rights to redeem under section 761 of the New
York Real Property Actions and Proceedings Law.
10. Security Deposit
Waived
11. Additional Rights of Sublessor
11.1 Sublessor shall have all of the following rights, which shall be in
addition to and not in li of all other rights of Sublessor, and which shall be
subject to exercise without notice except as specifically provided, and which
shall not be deemed to constitute an eviction or disturbance of Sublessee's use
or possession of the Sublet Premises or to give rise to any claim for set-off or
reduction or abatement of Rent or other charges:
(a) to install, affix and maintain signs on the exterior and interior
of the Building and the Common Areas; and/or
(b) to close the Building or the Common Areas after Building Hours and
deny access thereto to all persons, including Sublessee and its employees
and invitees; and/or
(c) to take any and all reasonable measures, including inspections and
repairs, as may be necessary or desirable in the operation and protection
of the Building, the Common Areas and the Sublet Premises; provided,
however, Sublessor shall take reasonable measures to minimize interference
with the conduct of Sublessee's business in the Sublet Premises; and/or
(d) to install and maintain pipes, ducts, conduits, wires and
structural elements located in the Sublet Premises that serve other parts
or other tenants or occupants of the Building and/or the Common Areas;
provided, however, Sublessor shall take reasonable measures to minimize
interferences with the conduct of Sublessee's business in the Sublet
Premises.
12. Quiet Enjoyment
12.1 Upon payment of the Rent and the performance of all the terms,
covenants and conditions of this Sublease on Sublessee's part to be performed,
Sublessee may peaceably and quietly enjoy the Premises without disturbance from
Sublessor or from any other person claiming through Sublessor, subject, however,
to the terms hereof.
13. General Provisions
13.1 Sublessee and Sublessor warrant and represent to each other that
neither has dealt directly or indirectly with any broker in connection with this
Sublease and that this Sublease has not been brought about as a result of the
efforts of any real estate broker or agent. Sublessee shall hold Sublessor
harmless against any claims for brokerage commission arising out of any
conversations or negotiations had by Sublessee with any broker with respect to
this Sublease or the Sublet Premises.
13.2 The parties expressly agree that no party is obligated by the terms
hereof or otherwise to refer patients to any other party and no part of the Rent
or other consideration paid and received hereunder is in exchange for the
referral of patients or the promise to make such referral. Decisions regarding
the referral of patients will be based solely upon the health care needs and
wishes of the patient, and the independent medical judgment of the physician or
other health care provider treating such patient.
13.3 This Sublease may be executed by the parties hereto in counterparts
and each such counterpart, when taken together, shall constitute a single
binding agreement.
13.4 The captions or titles to the various sections of this Sublease are
for convenience and ease of reference only and do not define, limit, augment or
describe the scope, content or intent of this Sublease or of any parts thereof.
13.5 Each and every covenant and condition of this Sublease shall be
binding upon and shall inure to the benefit of the successors and assigns of the
parties hereto, but this Section shall in no way validate an assignment of all
or any part of this Sublease which is invalid under other provisions hereof. The
invalidity or illegality of any provisions of this Sublease shall not affect the
remaining provisions thereof.
13.6 Any notice or demand provided for in this Sublease shall be in writing
and shall be deemed delivered either: (i) when delivered in person to the
recipient thereof; or (ii) on the date shown on the return receipt after
deposit, or should the recipient thereof fail to sign the return receipt, then
three days after deposit with a nationally recognized overnight carrier or in
the United States mail in a sealed envelope or container, registered or
certified and postage prepaid, and addressed to the party to whom notice is
hereby given at the address listed above or to such other address as maybe
supplied by such party in writing.
13.7 Notwithstanding anything to the contrary herein, Sublessee shall look
solely to the interest of Sublessor in the Building for satisfaction of any
remedy it may have hereunder or in connection herewith and shall not look to any
other assets of Sublessor or of any other person, firm or corporation. There
shall be absolutely no personal liability on the part of any present or future
officer, director, trustee, employee, member or affiliate of Sublessor with
respect to any obligation hereunder or in connection herewith.
IN WITNESS WHEREOF, the parties have executed this Sublease as of the date
first above written.
SUBLESSOR: ProHEALTH CORP.
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
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Title: Director of Marketing
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SUBLESSEE: Critical Home Health Care, Inc.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Title: President
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