EXHIBIT 10.4
SUBLEASE AGREEMENT
This Sublease Agreement (the "AGREEMENT") dated as of November 1, 2003,
is made between Enerl Group, Inc. ("SUBLESSOR") and Splinex LLC ("SUBLESSEE").
W I T N E S S E T H :
1. GRANT OF SUBLEASE. The parties hereto take notice of the following
leases:
(a) On December 19, 2002, The Northwestern Mutual Life Insurance
Company of Milwaukee, Wisconsin ("LESSOR") and Aristocrat Technologies, Inc.
("LESSEE") entered into that certain Lease Agreement (the "MASTER LEASE") for
the premises located in the City of Fort Lauderdale, County of Broward, State of
Florida, described as 550 W. Cypress Creek Road, consisting of approximately
3,995 rentable square feet, known as Suite 410. A copy of the Master Lease is
attached as EXHIBIT 1. The leased premises under the Master Lease (the "MASTER
PREMISES") are described in more detail in EXHIBIT 2.
(b) On October 27, 2003, Lessee and Sublessor entered into that certain
sublease for the Master Premises (the "MASTER PREMISES SUBLEASE"). A copy of the
Master Premises Sublease is attached as EXHIBIT 3. The Master Lease and the
Master Premises Sublease are collectively the "LEASES."
2. PREMISES. Sublessor hereby subleases to Sublessee on the terms and
conditions set forth in this Agreement that portion of the Master Premises (the
"PREMISES"), totaling 3,995 rentable square feet, as described in more detail in
EXHIBIT 4.
3. WARRANTY BY SUBLESSEE. Sublessor warrants and represents to
Sublessee that the Leases have not been amended or modified except as expressly
set forth in EXHIBIT 2 herein, that Sublessor is not now, and as of the
commencement of the Term hereof will not be, in default or breach of any of the
provisions of the Leases, and that Sublessor has no knowledge of any claim by
Lessor or Lessee that Sublessor is in default or breach of any of the provisions
of the Leases.
4. TERM. The term of this Agreement (the "TERM") shall commence upon
occupancy, which is planned to begin on January 1, 2004 (the "COMMENCEMENT
DATE"), and end on February 28, 2008 ("TERMINATION DATE"), unless otherwise
sooner terminated in accordance with the provisions of this Agreement. In the
event the Term commences on a date other than the Commencement Date, Sublessor
and Sublessee shall execute a memorandum setting forth the actual date of
commencement of the Term, However, the termination date shall remain February
28, 2008.
5. RENT. Sublessee shall pay to Sublessor as rent (the "RENT") without
deduction, set-off, notice or demand at:
Ener1 Group, Inc.
550 W. Cypress Creek Road, Suite 410
Fort Lauderdale FL 33309
Attention: Controller
or, at such other place as Sublessor shall designate from time to time by notice
to Sublessee. Sublessee shall pay the following:
MONTHLY RENT
Occupancy-- 10/31/04 $4,660.83
11/01/04-- 10/31/05 $4,847.26
11/01/05-- 10/31/06 $5,041.15
11/01/06-- 10/31/07 $5,242.80
11/01/07-- 02/28/08 $5,452.51
plus state sales tax as then applicable in Broward County, Florida as of the
date of payment, in advance on the first day of each month of the Term. If the
Term begins or ends on a day other than the first or last day of a month, the
rent for the partial month or months shall be prorated on a per diem basis, with
the numerator being the number of days that the Sublessee has occupied or will
occupy the Premises and the denominator being the number of days in the relevant
month. The Sublessee shall not be responsible for any Additional Rent as
outlined in the Master Lease. Unpaid rent shall bear interest until paid at the
prime rate of interest plus 2%.
6. TENANT IMPROVEMENTS. Sublessor shall provide the Premises in an
"as-is" condition.
7. SECURITY DEPOSIT AND FIRST MONTH OF RENT.
(a) Sublessee shall deposit with Sublessor upon the signing of this
Agreement, the sum of $0.00 as security of its faithful performance of its
obligations hereunder ("SECURITY DEPOSIT") plus $4,660.83 as payment of the
first month of rent due under this Agreement. Total due upon signing is
$4,660.83.
(b) If Sublessee fails to pay Rent or other charges when due under this
Agreement, or fails to perform any of its other obligations hereunder, Sublessor
may use or apply all or any portion of the Security Deposit, without prejudice
to any other remedy which Sublessor may have, for the payment of any Rent or
other amount then due hereunder and unpaid, for the payment of any other sum for
which Sublessor may become obligated by reason of Sublessee's default or breach,
or for any loss or damage sustained by Sublessor as a result of Sublessee's
default or breach.
(c) If Sublessor so uses any portion of the Security Deposit, Sublessee
shall, within 10 days after written demand by Sublessor, restore the Security
Deposit to the full amount originally deposited, and Sublessee's failure to do
so shall constitute a default under this Agreement. Sublessor shall not be
required to keep the Security Deposit separate from its general accounts, and
shall have no obligation or liability for payment of interest on the Security
Deposit. In the event Sublessor assigns or otherwise conveys its interest in
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this Agreement, Sublessor shall deliver to its assignee so much of the Security
Deposit as is then held by Sublessor and Sublessee agrees to look solely to such
grantee or assignee for application or return of the Security Deposit from any
mortgagee or any purchaser of Sublessor's interest as a foreclosure sale of any
grantee of a deed in lieu of foreclosure.
(d) Within 30 days after the Term has expired, or Sublessee has vacated
the Premises, whichever shall last occur, and provided Sublessee is not then in
default of any of its obligations hereunder, the Security Deposit, or so much
thereof as had not theretofore been applied by Sublessor, shall be returned to
Sublessee or to the last assignee, if any, of Sublessee's interest hereunder.
8. USE OF PREMISES. The Premises shall be for general office use.
9. ASSIGNMENT AND SUBLETTING. Sublessee shall not mortgage, encumber,
assign, convey or sublet this Agreement or any interest thereunder in any manner
which would constitute a breach or violation of either of the Leases and without
the prior written consent of Sublessor, such consent shall not be unreasonably
withheld, and the consent of Lessor, as required under the terms of either of
the Leases; HOWEVER, it is understood by the parties hereto that the Sublessee
intends to assign its rights and responsibilities under this Agreement to its
wholly-owned subsidiary, Splinex Technology Inc., and the Sublessor hereby
approves of such an assignment.
10. OTHER PROVISIONS.
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(a) All terms and conditions of the Leases, except those that are
incompatible with this Agreement, are incorporated into and made part of this
Agreement as if (i) Sublessor were the sublessor (in the case of the Master
Premises Sublease) thereunder and (ii) Sublessee were the sublessee (in the case
of the Master Premises Sublease) thereunder.
(b) Except as otherwise noted herein, (i) Sublessee shall perform and
observe all the agreements, covenants, conditions and provisions to be performed
and observed by Lessee under the Master Lease in relation to the Premises and
(ii) Sublessor shall perform and observe all the agreements, covenants,
condition and provision to be performed by the Sublessor under the Master Lease
in relation to that Master Premises other than the Premises, as and when
performance and observance is due, and the Lessor under the Master Lease will
have the right to enforce such agreements, covenants, conditions and provisions
directly against Sublessee.
(c) Sublessee shall not commit or suffer any act or omission that will
violate any of the provisions of the Leases. Sublessor shall exercise due
diligence in attempting to cause Lessor to perform its obligations under the
Master Lease for the benefit of Sublessee.
(d) The failure of (i) the Lessor or the Lessee to perform its or their
covenants (as the case may be) under the Master Lease or (ii) the Lessee or
Sublessor to perform its or their covenants (as the case may be) under the
Master Premises sublease shall not allow Sublessee to withhold, set-off or abate
any Rent or other amounts due hereunder. Further, in no event shall Sublessor be
liable to Sublessee for any damages, costs or expenses that Sublessee may incur
by reason of Lessor's failure to perform its covenants under the Master Lease.
(e) If the Master Lease terminates, this Agreement and any assignments
hereto shall terminate and the parties shall be relieved of any future liability
or obligation under this Agreement; PROVIDED, HOWEVER, that if the Master Lease
or Master Premises Sublease terminates as a result of a default or breach by
Sublessor or Sublessee under this Agreement, the Master Premises Sublease and/or
the Master Lease, then the defaulting party shall be liable to the nondefaulting
party for the damage suffered as a result of such termination.
(f) If either of the Master Leases give Sublessor any right to
terminate either of the Master Leases in the event of the partial or total
damage, destruction, or condemnation of the Master Premises or the building or
project of which the Master Premises are a part, the exercise of such right by
Sublessor shall not constitute a default or breach hereunder.
(g) Notwithstanding the foregoing, Sublessor and Sublessee agree that
the grace period provided to Lessee by the Lessor in the Master Lease shall be
the same grace period provided to Sublessee.
11. BROKER PARTICIPATION. Sublessor and Sublessee warrant and represent
that they have dealt with no real estate brokers in connection with the
Agreement and that no broker is entitled to any commission on account of this
Agreement.
12. ATTORNEYS' FEES. If Sublessor or Sublessee shall commence an action
against the other arising out of or in connection with this Agreement, the
prevailing party shall be entitled to recover its costs of suit and reasonable
attorney's fees.
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13. NOTICES. All notices and demands that may or are to be required or
permitted to be given by either party on the other hereunder shall be in
writing. All notices and demands shall be sent in person or by United States
certified or registered mail, postage prepaid, and to the address hereinbelow,
or to such other place as the parties may from time to time designate in a
notice to the other.
To Sublessor: Ener1 Group, Inc.
550 W. Cypress Creek Road, Suite 120
Fort Lauderdale, FL 33309
To Sublessee: Splinex LLC
550 W. Cypress Creek Road, Suite 410
Fort Lauderdale, FL 33309
14. MAINTENANCE OF PREMISES. Sublessee shall be responsible for
maintenance of the Premises and improvements in accordance with the terms and
conditions of the Master Lease regarding same.
15. INSURANCE. Sublessee shall maintain at its sole cost throughout the
Term hereof such insurance policies as are required to be maintained by
Sublessor under the Master Leases, naming as the insured, Lessor, Sublessor and
Sublessee, as their respective interests may appear, and contain an endorsement
that such policy shall not be cancelable except upon 30 days prior written
notice to Lessor and Sublessor.
16. RENEWAL OPTION. Sublessor and Sublessee agree that this Agreement
provides Sublessee with no automatic option to renew this Agreement or enter
into a new lease at the end of the Term either with the Sublessor or with the
Lessor.
17. INDEMNIFICATION.
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(a) Sublessee assumes liability for and hereby agrees to indemnify,
protect, save and keep harmless Sublessor, its agents, employees, officers,
directors, successors and assigns, from and against any and all liabilities,
obligations, losses, damages, penalties, claims, actions, suits, costs and
expenses including reasonable legal expenses incurred by or asserted against
Sublessor, its agents, employees, officers, directors, successors and assigns in
any way relating to or arising out of Sublessee's tenancy, possession or use of
the Premises or Sublessee's performance under this Agreement.
(b) Sublessor assumes liability for and hereby agrees to indemnify,
protect, save and keep harmless Sublessee, its agents, employees, officers,
directors, successors and assigns from and against any and all liabilities,
obligations, losses, damages penalties, claims, actions suits, costs and
expenses including reasonable legal expenses incurred by or asserted against
Sublessee, its agents, employees, officers, directors, successors and assigns in
any way relating to or arising out of Sublessor's tenancy, possession or use of
the Premises or Sublessor's performance under this Agreement.
18. ACCESS TO PREMISES. Sublessor acknowledges that it will maintain
access to the Premises for the Sublessee to the same extent as the Sublessor
provides for itself, including providing Sublessee with keys and combinations
(if any) to the Premises.
19. FURNITURE AND EQUIPMENT. Sublessor agrees to leave all of the
furniture (workstations, chairs, kitchen appliances and file cabinets) and
telephone system (handsets, wiring and processing unit) and the computer cabling
in the Premises for the use at no additional cost by the Sublessee during the
entire term of the Agreement. Sublessee shall be responsible for any maintenance
or repair required to keep this furniture and equipment in good working order
throughout the term of the Agreement. Sublessee agrees to accept ownership of
the furniture and equipment at the end of this Agreement so long as Sublessee is
not in default on any terms and conditions of this Agreement beyond any
permitted cure periods.
20. CONSENT BY LESSOR. As required under the terms of the Master Lease,
this Agreement shall be of no force or effect unless consented to by Lessor
within 15 days after Agreement signature and presentation to Lessor for
approval.
21. EXHIBITS. EXHIBITS 1, 2, 3 and 4, and the various attachments and
exhibits contained in each therein, are hereby made a part of this Agreement.
(signature page to follow)
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
ENER1 GROUP, INC.,
as Sublessor
By: /s/ Mike Zoi
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Name: Mike Zoi
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Title: President
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SPLINEX LLC,
as Sublessee
By: /s/ Peter Novak
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Name: Peter Novak
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Title: Director
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