EXHIBIT 10
SUBLEASE AGREEMENT
The parties agree as follows:
Date of this
Sublease: January _____, 2005
Parties to this
Sublease: Sublandlord: MEDIA SCIENCES INTERNATIONAL, INC.,
formerly known as Cadapult Graphic
Systems, Inc., a Delaware corporation
Address for notices: 0 Xxxxxxxx Xxxx, Xxxxxxx, Xxx
Xxxxxx 00000
You, the Subtenant: DYNAMIC IMAGING, INC., a
Pennsylvania corporation
Address for notices: 00 Xxxxxxxx Xxxx, Xxxxxxxxx, Xxx
Xxxxxx 00000
If there is more than one Sublandlord or Subtenant, the
words "Sublandlord" and "Subtenant" used in this
Sublease includes them.
Information from
Xxxxxxxxx: Landlord: Allendale Associates, a New Jersey partnership
Address for notices: 00 Xxxxx 00, Xxxxxxx, Xxx Xxxxxx
00000
Date of Xxxxxxxxx: August 2000
Term: Ten (10) years from: June 1, 2001 to: May 31, 2011
A copy of the Xxxxxxxxx is attached as an important part
of this Sublease.
Term:
1. Six (6) years, three (3) months. The term shall
commence upon delivery of possession of the Premises to
Subtenant. If Sublandlord is unable to deliver
possession of the Premises to Subtenant on the
Commencement Date, this Sublease shall remain
unaffected, but the Commencement Date shall not occur
until delivery of possession (which shall reduce the
Term). If Sublandlord is unable to deliver possession
of the Premises by April 1, 2005, Subtenant shall have
the right, at any time thereafter (but prior to the
occurrence of the Commencement Date) to terminate this
Sublease by sending written notice thereof to
Sublandlord. Sublandlord shall promptly return all
monies paid by Subtenant and neither party shall have
any further obligation or liability to the other.
Commencement Date:
2. March 1, 2005
Expiration Date:
3. May 30, 2011
Renewal Period:
4. None
Premises:
5. Approximately fifteen thousand four hundred (15,400)
square feet located at 00 Xxxxxxxx Xxxx, Xxxxxxxxx, Xxx
Xxxxxx, as depicted on Exhibit B of the Xxxxxxxxx
Use of Premises:
6. The Premises may be used for all purposes permitted by
the Xxxxxxxxx and by Landlord in Landlord's Consent (as
hereinafter defined).
Rent:
7. The yearly rent ("Fixed Rent") is One Hundred
Seventy-Seven Thousand One Hundred and 00/100
($177,100.00) Dollars. You, the Subtenant, will pay
this yearly rent to the Sublandlord in equal monthly
payments of Fourteen Thousand Seven Hundred Fifty-Eight
and 33/100 ($14,758.33) Dollars. Payments shall be paid
in advance on the first day of each month during the
Term. As an inducement to Subtenant to execute this
Sublease Agreement, Sublandlord agrees Subtenant shall
not be required to pay any Fixed Rent, Taxes (pursuant
to Article 19 of the Xxxxxxxxx) or additional charges
pursuant to Article 20 of the Xxxxxxxxx for the first
four (4) months of the Term hereof, provided, however,
that all other items of Additional Rent (as hereinafter
defined) shall be due and payable. All payments which
Subtenant is obligated to pay to Sublandlord pursuant
to this Sublease (with the exception of Fixed Rent)
shall be deemed "Additional Rent" regardless of whether
or not referred to as Additional Rent. All rental and
other payments shall be paid to Sublandlord at the
address as set forth above Attn: Accounts Receivable,
or to such other address as Sublandlord may designate
by notice to Subtenant. All remedies available to
Sublandlord under this Sublease, or otherwise at law or
equity, for Subtenant's failure to pay Fixed Rent shall
also be available to Sublandlord for Subtenant's
failure to pay Additional Rent. Fixed Rent and the
Additional Rent which is payable in monthly
installments shall be payable without demand, offset,
or deductions (except as expressly provided for herein
or in the Xxxxxxxxx). Subtenant shall pay any and all
sums (except fixed annual rental) due pursuant to the
Xxxxxxxxx (including without limitation common area
costs, insurance costs and real estate taxes) in equal
monthly installments in advance based upon
Sublandlord's reasonable estimation of the amounts that
will be due at the end of the year, quarter or other
period that same is due under the Xxxxxxxxx. Once the
final amount is determined, Subtenant will pay
Sublandlord any additional amount that may be due
within ten (l0) days after demand thereof or in the
case of overpayment Sublandlord shall refund the
overpayment or credit same to the account of Subtenant.
Late Fee:
8. Subtenant shall pay as additional rent a late charge
of, and not as a penalty, five (5%) percent of any
installment of fixed annual rent and/or additional rent
paid more than five (5) days after the due date thereof
to cover the extra expenses involved in handling
delinquent payments. Each month the payment is not
submitted, an additional late charge shall be assessed.
Payments delayed due to incorrect mailing address shall
be considered delinquent and shall subject to the late
charge.
Security:
9. The security for the Subtenant's performance is
Twenty-Nine Thousand Five Hundred Sixteen and 66/100
($29,516.66) Dollars. Subtenant shall provide the
security deposit to Sublandlord upon Subtenant's
execution of this Sublease. Security will be held in a
non-interest bearing account (which may be commingled
with other funds of Sublandlord) and may be applied
against any defaults by Subtenant under this Sublease.
The security deposited under this Sublease shall not be
mortgaged, assigned, or encumbered by Subtenant without
the consent of Sublandlord.
Agreement to
lease and pay rent:
10. Sublandlord sublets the Premises to you, the Subtenant,
for the Term. Sublandlord states that it has the
authority to do so. You, the Subtenant, agree to pay
the Rent and other charges as required in this
Sublease. You, the Subtenant, agree to do everything
required of you in this Sublease. In addition to the
Rent payable hereunder, Subtenant shall also pay all
Additional Rental (as said term is defined in the
Xxxxxxxxx), including, without limitation, all
utilities as described in Article 17 of the Xxxxxxxxx,
Taxes as defined in Article 19 of the Xxxxxxxxx, and
Additional Rental as defined in Article 20 of the
Xxxxxxxxx. Currently, the Additional Rent is Four
Thousand Three Hundred Fifty and 50/100 ($4,350.50)
Dollars per month.
Insurance:
11. Subtenant covenants and agrees that, during the Term,
it will provide and keep in force, in responsible
insurance companies licensed to do business in the
State of New Jersey, such policies of insurance and in
such amounts not less than the amounts specified in the
Xxxxxxxxx, naming Landlord and Sublandlord as
additional insureds. Within five (5) days after
Landlord has executed Landlord's Consent (or such other
consent reasonably acceptable to Subtenant), Subtenant
shall deliver to Sublandlord either a duplicate
original of the aforesaid policies or certificates
evidencing that such insurance is in full force and
effect.
Condition of
Subleased
Premises:
12. Except as hereinafter provided, Subtenant understands
and agrees that no materials whatever are to be
furnished by Sublandlord and no work whatever is to be
performed by Sublandlord in connection with the
Premises or any part thereof, and Subtenant agrees to
accept the Premises in its "as-is" and "where-is"
condition as of the commencement date of the Term,
except that Sublandlord agrees to deliver the Premises
to Subtenant in vacant and "broom-clean" condition and
will have performed at its sole cost and expense all of
the work ("Sublandlord's Work") specified on Schedule A
annexed hereto. Sublandlord is not liable or
responsible for or bound in any manner by any express
or implied representations, warranties, covenants,
agreements, obligations, guarantees, statements,
information or inducements pertaining to the Premises
or any part thereof, the fee title and physical and
environmental condition thereof, the quantity,
character, fitness and quality thereof,
merchantability, fitness for particular purpose, the
income, expenses or operation thereof, the value and
profitability thereof, the uses which can be made
thereof or any other matter or thing whatsoever with
respect thereto. Subtenant acknowledges, agrees,
represents and warrants that it has had the opportunity
and has in fact inspected the Premises, and that it has
had access to information and data relating to all of
same as Subtenant has considered necessary, prudent,
appropriate or desirable for the purposes of this
transaction and, without limiting the foregoing, that
Subtenant and/or Subtenant's agents and representatives
have independently inspected, examined, analyzed and
appraised all of same, including the condition, value
and profitability thereof. Without limiting the
foregoing, Subtenant acknowledges and agrees that,
except as expressly set forth in this Sublease,
Sublandlord is not liable or responsible for or bound
in any manner by (and Subtenant has no relief upon) any
oral or written or supplied guarantees, statements,
information or inducements pertaining to the Premises
or any part thereof, such condition and such operation
and any other information respecting same furnished by
or obtained from Sublandlord or any agent or
representative of Sublandlord. Without limiting the
foregoing, Subtenant acknowledges and agrees that, with
the exception of Sublandlord's Work, Subtenant is
leasing the Premises "AS IS" at the Sublease
commencement date.
Damages:
13. If the Xxxxxxxxx shall be terminated by reason of a
default on the part of Subtenant with respect to any of
the terms, covenants, conditions, provisions and
agreements of this Sublease, Sublandlord shall be
entitled to recover from Subtenant, as liquidated
damages (and not as a penalty), the sum of: (i) such
amount or amounts as will be equal to the damages which
Landlord shall be entitled to recover from Sublandlord
in connection with such termination of the Xxxxxxxxx;
(ii) the expenses incurred by Sublandlord in collecting
the amounts referred to in (i) hereinabove (including,
without limitation, attorneys' fees and disbursements);
and (iii) any and all other amounts incurred by
Sublandlord as a result thereof.
Default:
14. A. If (1) Subtenant defaults in the payment of any Rent
and such default continues for five (5) days after the
same has become due, or (2) Subtenant defaults in
fulfilling any of the covenants or agreements of this
Sublease or Article 24(a)(ii) of the Xxxxxxxxx on its
part to be kept or performed and such default is not
cured or commenced to be cured (and diligently
prosecuted to completion thereafter) within ten (10)
days after written notice from Sublandlord or its
agent, then and in any of such events, or (3) Subtenant
defaults under any other provision of Article 24 of the
Xxxxxxxxx, then, in addition to all remedies available
under this Sublease, at law or in equity, Sublandlord,
or its agent, may give Subtenant a written notice
specifying a day not less than five (5) days
thereafter, whereupon the Term shall end, and on the
day specified, the Term of this Lease shall expire as
if that day were the day herein fixed for the
expiration of the Term, and Subtenant shall then quit
and surrender the Premises to Sublandlord and Subtenant
shall remain liable as hereinafter provided. Subtenant
shall also pay to Sublandlord an amount equal to any
costs and expenses, including, without limitation,
reasonable attorneys' fees, disbursements and court
costs incurred by Sublandlord in recovering possession
of the Premises and collecting any damages sustained by
Sublandlord, as well as all reasonable costs and
expenses incurred by Sublandlord for the care of the
Premises while vacant, or unoccupied, which amounts
shall be due and payable by Subtenant to Sublandlord at
such time or times as such costs and expenses shall
have been incurred by Sublandlord. In any case where
Sublandlord has recovered possession of the Premises by
reason of Subtenant's default, Sublandlord may at
Sublandlord's option, at any time thereafter, without
notice or other action by Sublandlord, and without
prejudice to any other rights or remedies Sublandlord
might have hereunder or at law or equity, become
entitled to recover from Subtenant, as damages for such
default, in addition to such other sums herein agreed
to be paid by Subtenant (to the date of re-entry,
expiration and/or dispossess), or (a) all fixed annual
rental and additional rent (conclusively presuming the
additional rent to be the same as was payable for the
calendar year immediately preceding such recovery)
which is or would have been payable with respect to the
then remaining term of this Sublease as and when such
payments are or would have been payable under this
Sublease or (b) an amount equal to the difference, if
any, by which: (i) the sum of the fixed annual rental
and additional rent (conclusively presuming the
additional rent to be the same as was payable for the
calendar year immediately preceding such termination)
and other payments reserved in this Sublease and
required of Subtenant hereunder from the date of such
default to the date of expiration of the then otherwise
remaining term of this Sublease; exceeds (ii) the then
fair and reasonable rental value of the Premises for
the same period. If the Premises or any part thereof be
relet by Sublandlord for the unexpired portion of the
term of this Sublease, or any part thereof, before
presentation of proof of such damages to any court,
commission or tribunal, the amount of rent reserved
upon such reletting shall, prima facie, be the fair and
reasonable rental value for the Premises, or part
thereof, so relet during the term of the reletting.
Said damages shall become due and payable to
Sublandlord immediately upon such default of this
Sublease and without regard to whether this Sublease is
terminated or not; and if this Sublease is terminated,
without regard to the manner in which it is terminated.
In the computation of such damage, the difference
between any installments of fixed annual rental and
additional rent thereafter becoming due and the fair
and reasonable rental value of the Premises for the
period of which such installment was payable shall be
discounted to the date of such default at the Prime
Rate (as defined in The Wall Street Journal), or such
Prime Rate mutually agreed to by the parties if The
Wall Street Journal no longer publishes the Prime Rate.
B. If Sublandlord shall receive a notice of default from
Landlord, which default arises out of, or is in
connection with, Subtenant's actions or failure to act
under this Sublease, then Sublandlord, after five (5)
days' written notice to Subtenant and without waiving
or releasing Subtenant from any obligation contained in
this Sublease, may, but shall be under no obligation
to, make any such payment or, at Subtenant's sole cost
and expense, perform any such act on Subtenant's part
to be made or performed as provided in this Sublease in
order to cure the default under the Xxxxxxxxx, and may
enter upon the Subleased Premises for that purpose and
take all such other actions as may be necessary
therefor.
C. All sums so paid by Sublandlord and all costs and
expenses incurred by Sublandlord in connection with the
performance of any such act, together with interest
thereon at the rate of ten (10%) percent per annum,
from the respective dates of Sublandlord's making of
each such payment or incurring of each such cost and
expense, shall constitute Additional Rent payable by
Subtenant under this Sublease, without set-off or
deduction, and shall be paid by Subtenant to
Sublandlord within five (5) days after demand therefor.
D. Each party shall have the right to enforce specific
performance by such party of each and every term,
covenant, condition, and other provision of this
Sublease.
Renewal Term:
15. If during the Term of this Sublease, Subtenant enters
into a direct lease with Landlord for any period of
time after the Term, then any right of Sublandlord to
extend the term of the Xxxxxxxxx shall be deemed null
and void ab initio and of no further force and effect.
Broker:
16. Subtenant and Sublandlord each represents and warrants
to each other that: (i) it has not dealt with any
agents or brokers in connection with this Sublease
and/or the Subleased Premises other than CB Xxxxxxx
Xxxxx and Xxxxxxx & Xxxxxxxxx of New Jersey, Inc.
(collectively the "Broker"); and (ii) this Sublease was
not brought about or procured through the use,
negotiation and/or instrumentality of any other agents
or brokers. Subtenant and Sublandlord covenant and
agree to pay, indemnify and hold the other harmless
from and against any and all claims for commissions and
other compensation made by any other agent or agents
and/or any other broker or brokers arising from or
related to this Sublease based on any dealings between
it and any such other agent or agents and/or any such
other broker or brokers, together with all costs and
expenses incurred by the other in resisting such claims
(including, without limitation, attorneys' fees and
disbursements). Sublandlord shall pay any fee due
Broker pursuant to an existing separate written
agreement between Sublandlord and Broker.
Notices:
17.
All notices in this Sublease shall be sent by certified
mail, "return receipt requested" or nationally
recognized overnight courier service providing proof of
delivery. Notices are deemed given on receipt or
refusal. To be effective, any notice sent to (i)
Subtenant hereunder shall also have a copy sent in a
similar manner to Xxxxx, Banta, Hetherington, Basralian
& Xxxx, P.C., Court Plaza North, 00 Xxxx Xxxxxx, X.X.
Xxx 000, Xxxxxxxxxx, Xxx Xxxxxx 00000, Attention:
Xxxxxxx X. Xxxx, Esq., and (ii) Sublandlord hereunder
shall also have a copy sent in a similar manner to
Xxxxxx X. Xxxxxxxx, Esq., Xxxxxxx Xxxxxxxx, LLC, 00
Xxxxxxxx Xxxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx 00000.
Subject to:
18. This Sublease is subject to the Xxxxxxxxx. It is also
subject to any agreement to which the Xxxxxxxxx is
subject. You, the Subtenant, state that you have read
the Xxxxxxxxx (a copy of which is attached hereto) and
will not violate any of its provisions.
Sublandlord's duties:
19. The Xxxxxxxxx describes the Landlord's duties, The
Sublandlord is not obligated to perform the Landlord's
duties. If the Landlord fails to perform its duties,
you, the Subtenant, must send the Sublandlord a notice.
Upon receipt of the notice, the Sublandlord shall then
promptly notify the Landlord and demand that the
Xxxxxxxxx agreements be carried out. The Sublandlord
shall continue the demands until the Landlord performs.
Consent:
20. This Sublease is strictly conditioned upon obtaining
Landlord's consent to this Sublease upon all of the
terms and conditions in the manner set forth on the
letter annexed on Schedule B ("Landlord's Consent"). If
Landlord does not execute the Landlord's Consent or
another consent reasonably acceptable to Subtenant
within thirty (30) days from the date of this Sublease,
this Sublease will be void. In such event, all parties
are automatically released and all payments shall be
refunded to you, the Subtenant.
Adopting the
Xxxxxxxxx and
exceptions:
21. The provisions of the Xxxxxxxxx are part of this
Sublease. All the provisions of the Xxxxxxxxx applying
to the tenant are binding on you, the Subtenant, except
the following numbered paragraphs of the Xxxxxxxxx
shall not apply: Preamble #5, Preamble #7, Preamble #8,
Preamble #10, Preamble #11, Preamble #13, that portion
of Preamble #14 relating to the tenant's tax
identification number, Article 2, Article 3, Article
5(a)(i), Article 30, Article 44, Article 46.
Xxxxxxxxx:
22. This Sublease is expressly made subject and subordinate
to all of the terms, covenants, conditions, provisions
and agreements contained in the Xxxxxxxxx. The
restrictions, limitations and conditions imposed upon
Sublandlord by the terms of the Xxxxxxxxx are imposed
upon Subtenant with the same force and effect as if
specifically set forth herein at length, and Subtenant
assumes and agrees to perform all of the obligations of
Sublandlord under the Xxxxxxxxx insofar as such
obligations pertain to the Premises rented and/or
subtenants in general, except as otherwise expressly
provided herein or to the extent inconsistent with, or
inapplicable to any of the provisions of this Sublease.
Subtenant covenants and agrees to indemnify and hold
Sublandlord harmless from and against any and all
losses, damages, claims or expenses (including, without
limitation, attorneys' fees and disbursements), in any
way arising out of, or in connection with: (i) the
Premises rented; or (ii) any act or omission of
Subtenant or its agents, servants, employees,
contractors, licensees or invitees; or (iii) any actual
or threatened breach, default or failure on the part of
Subtenant with respect to any of the terms, covenants,
conditions, provisions and agreements of this Sublease
and/or the Xxxxxxxxx. Subtenant agrees, as an express
inducement for Sublandlord's executing this Sublease,
that if there is any conflict between the provisions of
this Sublease and the provisions of the Xxxxxxxxx which
would permit Subtenant to do or cause to be done or
suffer or permit any act or thing to be done which is
prohibited by the Xxxxxxxxx, then the provisions of the
Xxxxxxxxx shall prevail. If the Xxxxxxxxx terminates or
is terminated for any reason whatsoever, then this
Sublease shall terminate simultaneously therewith. If
Subtenant is not in default under the terms and
conditions hereof beyond the applicable notice and cure
period, any such termination shall be without liability
between Sublandlord and Subtenant, except such
liability theretofore accruing; however, if Subtenant
is in default beyond the applicable notice and cure
period, the default provisions hereof shall control as
to Subtenant's liability.
Compliance
With Laws:
23. Subtenant covenants and agrees to comply with
applicable laws, resolutions, codes, rules and
regulations, of any department, bureau, agency or
governmental authority having jurisdiction over the
occupancy, maintenance and use of the Premises by
Subtenant for the purposes set forth herein. Subtenant
covenants and agrees to indemnify and hold Sublandlord
harmless from and against any claims, penalties,
losses, damages or expenses imposed by reason of a
violation of any applicable law or the rules and
regulations of governmental or quasi-governmental
agencies or authorities having jurisdiction thereof
arising from its use of the Premises during the Term or
caused by Subtenant or Subtenant's agents. Sublandlord
covenants and agrees to indemnify and hold Subtenant
harmless from and against any claims, penalties,
losses, damages or expenses imposed by reason of a
violation of any applicable law, including, without
limitation, any rules and regulations of governmental
or quasi-governmental agencies or authorities having
jurisdiction thereof arising prior to the commencement
of the Term and caused by Sublandlord or Sublandlord's
agents. The provisions of this Article shall survive
the termination or expiration of this Sublease.
No authority:
24. You, the Subtenant, have no authority to contact or
make any agreement with the Landlord about the Premises
or the Xxxxxxxxx. You, the Subtenant, may not pay rent
or other charges to the Landlord, but only to the
Sublandlord.
Successors:
25. Unless otherwise stated, this Sublease is binding on
all parties who lawfully succeed to the rights or take
the place of the Sublandlord or you, the Subtenant.
Changes:
26. This Sublease can be changed only by an agreement in
writing signed by the parties to this Sublease.
Sublandlord:
27. The term "Sublandlord" as used in this Sublease means
only the lessee for the time being under the Xxxxxxxxx,
so that in the event of a transfer of Sublandlord's
interest in the Xxxxxxxxx, Sublandlord shall be and
hereby is entirely freed and relieved of all
obligations of Sublandlord hereunder and it shall be
deemed that the transferee has assumed and agreed to
observe and perform all obligations of the Sublandlord
hereunder.
Governing Law:
28. This Sublease shall be governed by the laws of the
State of New Jersey.
No Recording:
29. This Sublease shall not be recorded in the Office of
the Recording of Deeds or in any other office or place
of public record and if Subtenant shall record this
Sublease or cause or permit the same to be recorded,
Sublandlord may, at its option, elect to treat such act
as a breach of this Sublease.
Alteration:
30. Subtenant shall not make any alterations or additions
to the Premises without first obtaining Sublandlord's
consent, such consent not to be unreasonably withheld
or delayed. If Landlord denies its consent to such
alterations pursuant to Article 12 of the Xxxxxxxxx,
then Sublandlord's denial of consent shall be
conclusively deemed to be reasonably withheld.
Notwithstanding the foregoing, if either (a) Subtenant
make alterations to the Premises without Landlord's
consent or (b) Landlord consents to Subtenant's
alterations, and, in either such event, Landlord
notifies Sublandlord that Subtenant shall not be
required to remove any alterations prior to the
expiration or termination of the Lease, then
Sublandlord's consent to such alterations shall not be
required.
Assignment:
31. Without the prior consent of Sublandlord, not to be
unreasonably withheld or delayed, neither Subtenant,
nor Subtenant's legal representatives or successors in
interest shall, by operation of law, dissolution,
merger, or otherwise, assign, transfer or mortgage this
Sublease, or sublet or license the whole or any part of
the Premises or permit the Premises or any part thereof
to be used or occupied by others. If Subtenant is a
corporation or partnership, none of its capital stock
or partnership interests, as the case may be, shall be
transferred (except to Sublandlord) voluntarily or by
operation of law without Sublandlord's written consent,
such consent not to be unreasonably withheld or
delayed; provided, however, that Sublandlord's capital
stock or partnership can be transferred, upon notice to
Sublandlord and without Sublandlord's consent, in
connection with the sale of Subtenant's business,
provided that the buyer expressly agrees in writing to
assume all of Subtenant's obligations hereunder. If
Sublandlord fails to respond to Subtenant's request for
consent within twenty (20) days, then Sublandlord's
failure to respond shall be deemed to be Sublandlord's
consent to such assignment or sublet. If Landlord
denies consent pursuant to Article 15 of the Xxxxxxxxx,
then Sublandlord's denial of consent shall be
conclusively deemed to be reasonably withheld. Any
consent by Sublandlord to any act of assignment or
subletting shall be held to apply only to the specific
transaction thereby authorized. Such consent shall not
be construed as a waiver of the duty of Subtenant, or
the legal representatives or assigns of Subtenant, to
obtain from Sublandlord consent to any other or
subsequent assignment or subletting, or as modifying or
limiting the rights of Sublandlord under the foregoing
covenant by Subtenant not to assign or sublet without
such consent. Any violation of any provision of the
Sublease, whether by act or omission, by any assignee,
subtenant undertenant, or occupant, shall be deemed a
violation of such provision by Subtenant, it being the
intention and meaning of the parties hereto that
Subtenant shall assume and be liable to Sublandlord for
any and all acts and omissions of any and all
assignees, subtenants, undertenants and occupants. If
the Sublease is assigned, Sublandlord may, and is
hereby empowered to, collect rent from the assignee; if
the Premises or any part thereof be underlet or
occupied by any person other than Subtenant,
Sublandlord, in the event of Subtenant's default, may,
and is hereby empowered to, collect rent from the
undertenant or occupant; in either of such events,
Sublandlord may apply the net amount collected by it to
the rent herein reserved, and no such collection shall
be deemed a waiver of the covenant herein against
assignment and underletting, or the acceptance of the
assignee, undertenant or occupant as Subtenant, or a
release of Subtenant from the further performance of
the covenants herein contained on the part of
Subtenant. In the event that Overlandlord consents to
Subtenant's proposed assignment or sublease, and
Sublandlord has been released by Overlandlord from all
liability and all obligations under the Xxxxxxxxx, then
Sublandlord's consent to the proposed assignment or
sublease shall not be required.
Licenses:
32. With the exception of any license, certificate or
permit required in connection with Sublandlord's Work,
if any governmental license, certificate of occupancy
or permit is required for the proper or lawful conduct
of any business or other acts to be carried on in the
Premises and if the failure to secure such license,
certificate or permit would, in any way, adversely
affect Sublandlord, Subtenant shall immediately procure
and thereafter maintain such license or permit, submit
the same for inspection by Sublandlord, and comply with
the terms and conditions of such license, certificate
or permit.
Environmental Laws:
33. A. Subtenant shall, at Subtenant's own cost and
expense, comply with all Environmental Laws (as
hereinafter defined) affecting the Premises after the
date hereof. Subtenant shall, at Subtenant's own
expense, keep and maintain the Premises free from
leaks, discharges, releases or spills of Hazardous
Materials (as hereinafter defined) and free from
contamination of Hazardous Materials arising after the
date hereof. Subtenant, its employees, agents,
contractors, invitees or representatives shall not
process, store, handle, generate, manufacture, bury or
treat any Hazardous Material at the Premises or about
the Premises, or permit to be processed, stored,
handled, generated, manufactured, buried or treated any
Hazardous Material at the Premises or about the
Premises. Subtenant shall not (either with or without
negligence) cause or permit the escape, disposal,
discharge or release of any Hazardous Material other
than de minimis quantities of cleaning products used in
the ordinary course of business in accordance with all
applicable Environmental Laws. "Hazardous Material"
means any hazardous wastes or hazardous substances as
defined in any Environmental Law including, without
limitation, any asbestos, PCB, toxic, noxious or
radioactive substance, methane, volatile hydrocarbons,
industrial solvents or any other material or substance
which could cause or constitute a health, safety or
other environmental hazard to any person or property.
"Environmental Law" means any applicable federal, state
or local environmental and cleanup statutes, laws,
rules or regulations, ordinances, orders, decrees and
interpretations now or hereafter in effect including,
without limitation: (1) Industrial Site Recovery Act,
1993 N.J. Laws, Chapter 139 and all regulations
promulgated thereunder; (2) the Spill Compensation and
Control Act, N.J.S.A. 58:10-23.11, et seq; (3) the
Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Section 9601, et seq.; (4) the
Toxic Substances Control Act, 15 U.S.C. Section 2601,
et seq. and (5) the Resource Conservation and Recovery
Act, 42 U.S.C. Section 6901 et seq.; and any amendments
thereto and regulations promulgated thereunder.
B. Subtenant shall indemnify, defend and save harmless
Sublandlord from all fines, suits, procedures, claims,
actions of any kind and all losses, damages and
expenses (including, without limitation, attorneys'
fees) arising out of or in any way connected with any
(a) spills, releases or discharges of Hazardous
Materials at the Premises or about the Premises which
occur during the term of this Sublease; and/or (b)
violation of any Environmental Law by Subtenant during
the term of this Sublease; and/or (c) breach by
Subtenant of any provision of this Article. Sublandlord
shall indemnify, defend, and save harmless Subtenant
from all fines, suits, procedures, claims, actions of
any kind and all losses, damages and expenses
(including without limitation attorneys' fees) arising
out of or in any way connected with any (1) spills,
releases, or discharges of Hazardous Materials by
Sublandlord at the Premises which occur prior to the
date hereof and during the term of the Xxxxxxxxx;
and/or (2) violation of any Environmental Laws by
Sublandlord prior to the date hereof; and/or (3) breach
by Sublandlord of any provision of this Article.
C. Subtenant shall fully cooperate with Sublandlord and
provide such documents, affidavits and information as
may be requested by Sublandlord (i) to comply with any
Environmental Law, (ii) to comply with the request of
any lender, purchaser or tenant, and/or (iii) for any
other reason reasonably deemed necessary by Sublandlord
in connection with compliance with Environmental Laws.
D. If Sublandlord, any mortgagee or any governmental
agency ever requires testing to ascertain whether or
not there has been discharge, spill, disposal or
release of any Hazardous Materials, and the Hazardous
Materials have been released by Subtenant and/or
Subtenant's agents, then the reasonable costs thereof
shall be reimbursed by Subtenant to Sublandlord upon
demand as additional rent, if such requirement applies
to the Premises and if the discharge, spill, disposal
or release of such Hazardous Materials was caused by
Subtenant and/or Subtenant's agents.
E. Subtenant's failure to abide by the terms of this
Article shall be restrainable by injunction.
F. Sublandlord represents to Subtenant, without
independent investigation or inquiry, that Sublandlord
has released no Hazardous Materials at the Premises in
violation of any Environmental Law.
G. The provisions of this Article shall survive the
termination, cancellation, modification, expiration or
rescission of this Sublease.
Signatures: Witness: SUBLANDLORD: MEDIA
SCIENCES INTERNATIONAL,
INC.
_____________________
________________________
________________________
Witness: SUBTENANT: DYNAMIC
IMAGING, INC.
_____________________
________________________
________________________
Schedule A
Sublandlord Work:
-----------------
1. Entire premises shall be repainted to match existing colors. The west wall
of the warehouse shall not be painted. The south wall shall be painted
where needed. The east and north walls of the warehouse shall be completely
painted.
2. All carpeted areas shall be shampooed.
3. New VCT flooring shall be installed in rooms 130, 135 and 136. All other
VCT tiles in other rooms shall be cleaned, polished and resealed.
4. Floors in rooms 137, 138, 139, 140 and 141 shall be repainted to match
existing color.
5. All ceiling tiles shall be matched with other surrounding ceiling tiles
throughout the entire premises. Rooms with broken, discolored or warped
tiles shall be replaced with new tiles to match.
6. Entire premises shall be cleaned including wallpaper (where needed) prior
to occupancy.
7. The mezzanine deck in the warehouse shall be removed by Sublandlord. Any
damage caused to the walls, floor or ceiling shall be repaired by
Sublandlord. All floor bolts and wall bolts shall be removed and necessary
repairs made.
8. All existing window treatments are to stay with the premises.
9. All network cabling shall remain intact and the cable stand in the server
room can remain there if Sublandlord chooses to leave it.
10. Any damage caused by Sublandlord shall be repaired by Sublandlord in a good
workmanlike manner, prior to Subtenant taking possession.
Schedule B
ALLENDALE ASSOCIATES
00 Xxxxx 00
Xxxxxxx, Xxx Xxxxxx 00000
January __, 2005
Cadapult Graphic Systems, Inc. and
Dynamic Imaging, Inc.
00 Xxxxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Re: 00 Xxxxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx
Gentlemen:
Reference is made to that certain Agreement of Lease dated August 14, 2000,
between the undersigned, as Landlord, and Cadapult Graphic Systems, Inc.,
including its wholly owned subsidiary, Media Sciences, Inc., as Tenant
(hereinafter called the "Lease"), with respect to a portion of the
above-captioned premises (the "Premises").
Tenant has requested our consent to its proposed subletting of the Premises
demised to it under the Lease to Dynamic Imaging, Inc. ("Dynamic") and we hereby
consent to such subletting and further agree as follows:
1. The Lease is in full force and effect and to the best of our knowledge
there are no defaults thereunder.
2. During the term of the subletting, the Premises may be used for all
uses permitted under the Lease, subject to applicable law, as well as
for the same uses currently utilized by Dynamic at the location we
lease to Dynamic at 000 Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxx Xxxxxx, and
those uses expressly permitted under the lease agreement dated May 16,
2002, between the undersigned, as Landlord, and Dynamic, as Tenant.
3. During the term of the sublease, Dynamic is allocated forty-five (45)
parking spaces in the area depicted on the schedule annexed to this
letter and of those forty-five (45) parking spaces, eight (8) of them
shall be reserved for the exclusive use of Dynamic.
4. We hereby consent to the performance of the work which the tenant is
performing to the Premises as set forth on Exhibit A attached hereto.
5. Dynamic is hereby granted our consent to affix its identification
signage on the building monument and the facade of the Premises, all
at its sole cost and expense, subject to our review and approval, not
to be unreasonably withheld or delayed.
6. If our lease agreement with Tenant is terminated and/or surrendered
during the term of the subletting, we shall offer Dynamic an
opportunity to execute an identical lease for what would have been the
remainder of the term of the lease and any renewal options upon the
identical terms, covenants and conditions of the Lease as now exists.
The undersigned recognizes that Tenant and Dynamic are relying upon the
contents of this letter in order for the agreement of sublease to be effective.
Very truly yours,
ALLENDALE ASSOCIATES
By:________________________
Xxxxxxx X. Xxxxx
General Partner