Exhibit 10.38
SUBLEASE AGREEMENT
This Sublease Agreement (the "SUBLEASE AGREEMENT"), dated as of
November 26, 2001, is by and between MARKETSOURCE, INC. (the "TENANT") and ALLOY
ACQUISITION SUB, INC. (the "Sublessee").
WHEREAS, Tenant and XXXXXX X. XXXXXX (the "LANDLORD") are parties to
that certain Lease Agreement, dated as of January 1, 1993 (the "LEASE"), whereby
Tenant rents approximately 40,862 square feet of space from Landlord (the
"PREMISES") in the building commonly known as 00 Xxxxx Xxxx, Xxxxxxxx, XX (the
"BUILDING");
WHEREAS, Tenant wished to sublease a portion of the Premises to
Sublessee, and Sublessee wishes to sublease such portion of the Premises from
Tenant.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1. In consideration of the covenants herein contained on the part of Sublessee
to be kept and performed, Tenant does hereby demise and lease unto Sublessee
that portion of the Building containing approximately 40,862 rentable square
feet of space, as delineated on the plan annexed hereto and identified as
"Exhibit A" (the "SUBLET PREMISES"). Sublessee shall use and occupy Sublet
Premises for executive, administrative, warehouse space, promotional activities
and general office use in a manner consistent with its current use. Sublessee
shall be entitled to the existing Building parking spaces.
2. Tenant warrants and represents that the Lease is in full force and effect,
and that there exists no event of default on the Tenant's part thereunder, nor
(to Tenant's best knowledge) does there exist any event or circumstance which,
with the passage of time or the giving of notice, or both, would constitute an
event of default. By its execution hereof, Landlord consents to the execution of
this Sublease by Tenant and Sublessee; PROVIDED, HOWEVER that such consent shall
not be deemed to grant to Sublessee any rights or privileges greater than or
different from those granted to Tenant by the Lease, nor shall Landlord be
required to deal directly with Sublessee. To the best knowledge of Tenant, no
other consents are required to entitle Tenant to enter into and perform this
Sublease. Except as otherwise specifically set forth herein, the Lease, as
amended, is hereby incorporated herein in its entirety as if fully set forth
herein.
3. The term of this Sublease shall be for 25 Months and 4 days commencing on
November 26, 2001, and ending on December 31, 2003 (the "TERM") unless sooner
terminated pursuant to any provision hereof.
4. Sublessee shall pay to Tenant, in a timely manner pursuant to the
terms of the Lease, the Rental Payments. For purposes of this Sublease, the
Rental Payments shall be:
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PERIOD ANNUAL BASE RENTAL MONTHLY BASE RENTAL
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Date hereof - December 31, 2002 $ 200,000.00 $ 16,666.67
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December 31, 2002- December 31, 2003 $ 206,000.00 $ 17,166.67
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5. The Sublet Premises are demised and let to Sublessee in their existing
condition, provided that Tenant shall deliver to Sublessee a copy of the
Certificate of Use and Occupancy issued by the Township of Monroe, NJ for the
Sublet Premises. Tenant represents that, to the best of its knowledge, all
systems and equipment located in or serving the Sublet Premises are in good
working order and condition and that all of the construction work to have been
performed by the Landlord under the Lease has been completed as required
therein. Tenant also represents and warrants to Sublessee that the Sublet
Premises, in their existing state, does not violate any applicable building code
regulation or ordinance at the time that this Sublease is executed. If it is
determined that this warranty has been violated, then it shall be the obligation
of Tenant, after written notice from Sublessee, to promptly, at Tenant's sole
cost and expense, rectify any such violation.
6. Tenant shall be solely responsible for all payments or other obligations owed
to Landlord pursuant to the Lease, as amended.
7. Notwithstanding anything to the contrary contained in this Sublease, it is
understood and agreed that any and all maintenance, cleaning, ordinary course
replacements, facilities and services (collectively, the "BUILDING SERVICES") to
be made and/or furnished to the Sublet Premises by or on behalf of Landlord
pursuant to any provisions of the Lease, as amended, will be furnished by or on
behalf of Landlord directly to Sublessee and not by Tenant to Sublessee.
8. Sublessee shall maintain and keep the Premises in good working order.
9. Sublessee's share of taxes for the Sublet Premises for the initial tax year
during the Term shall be pro-rated between Tenant and Sublessee over the period
in respect of which such taxes are payable based on the number of days of such
taxable period during which Tenant is subleasing the Premises to Sublessee
hereunder over the number of days in such taxable period.
10. This Sublease Agreement may not be assigned by Sublessee, in whole or in
part, without the prior written consent of Tenant and Landlord, which consent
will not be unreasonably withheld, conditioned or delayed. This Sublease shall
be binding upon and inure to the benefit of the parties and their respective
successors and assigns.
11. This Sublease supersedes all prior agreements and understandings of, and
constitutes the entire agreement between, the parties hereto with respect to the
subject matter hereof and cannot be modified or amended except in a writing
expressly referring hereto signed by the party to be bound thereby.
12. The failure of either party hereto to enforce any provision of this
Sublease, or to restrict its performance hereunder to its obligations stated
herein shall not be construed as a waiver or modification of any provision
hereof nor shall it constitute a forfeiture by that party of any rights to
future enforcement of, or performance in accordance with any provisions of this
Sublease.
13. So long as Sublessee shall timely make the payments required of it
hereunder, Tenant agrees to make timely all payments required to be made under
the Lease, as amended. Each party hereto agrees to refrain from doing or causing
to be done, or suffering or permitting to be done, any thing or act which could
constitute a default under the Lease, as amended, or the rights
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granted under the Lease, as amended, to be canceled or terminated, forfeited or
surrendered. Each party agrees that it will indemnify the other against any
direct loss, liability, and expense (including, without limitation, reasonable
attorney's fees and costs) arising out of any default under the Lease, as
amended, caused by the indemnifying party. Tenant hereby irrevocably authorizes
and directs Sublessee, upon receipt of any written notice from the Landlord
stating that a default exists in the performance of Tenant's obligations under
the Lease, to pay to Landlord the rents due and to become due under the
Sublease. Tenant agrees that Sublessee shall have the right to rely upon any
such statement and request from Landlord, and the Sublessee shall pay such rents
to Landlord without any obligation or right to inquire as to whether such
default exists and notwithstanding any notice from or claim from Tenant to the
contrary and Tenant shall have no right or claim against Sublessee for any such
rents so paid by Sublessee.
14. Within three (3) days after receipt by Tenant, Tenant shall deliver to
Sublessee any notices of default, statements, bills and/or invoices Tenant
receives from Landlord under the Lease to the extent Sublessee is responsible
therefor or such notices, statements, etc. reasonably could affect Sublessee.
15. Whenever the consent or approval of Landlord is obtained by Sublessee (as
may be required under the Lease) such consent shall also be deemed to be the
consent or approval of Tenant. Sublessee agrees to send to Tenant copies of all
requests by Sublessee for Landlord's consent or approval and copies of any
consent or approvals received from Landlord.
16. Neither Tenant nor Sublessee shall be liable to the other for any failure or
delay in performing any of its obligations under this Agreement if such failure
or delay is caused by Force Majeure. "Force Majeure" means any act of God or the
public enemy, any accident, explosion, fire, storm, earthquake, flood, terrorist
act or any other circumstance or event beyond its reasonable control.
17. This Sublease shall not create and shall not be construed to create any
relationship of agency, partnership or employment between Tenant and Sublessee,
which shall remain independent parties.
18. (a) Provided that a default shall not have occurred and be continuing under
this Lease at the time of the exercise thereof, Sublessee shall have three (3)
options to extend the term of this Sublease, each for a period of one (1) year
(each, a "RENEWAL TERM"). Sublessee shall be deemed to have exercised the option
for a Renewal Term unless it shall, by written notice to Tenant (the "RENEWAL
NOTICE") given not less than sixty (60) days before the expiration date of the
initial Term of this Sublease or the expiration date of the Renewal Term, as the
case may be, elect to have this Sublease terminate on such expiration date.
Unless Sublessee shall elect to and shall timely terminate any such option, the
term of this Sublease (and the term of the Lease) shall be automatically
extended for one (1) additional year, without the execution of an extension or
renewal sublease or lease. Within ten (10) days after request by either party,
the parties shall execute, acknowledge and deliver an instrument confirming that
such option has been effectively exercised and confirming the extended
expiration date of the term of this Sublease. The terms and conditions
applicable during each such Renewal Term shall be the same terms and conditions
as are in effect immediately preceding the commencement of the Renewal Term,
except that the Rental Payments then in effect hereunder and under the Lease
shall equal the fair market rental for the Sublet Premises as determined by
Landlord and set forth in a written notice
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to Tenant and Sublessee, which determination shall be as of the date
(hereinafter called the "DETERMINATION DATE") occurring ninety (90) days prior
to the start of such new rent period and which determination shall be made by
Landlord and given in writing to Tenant and Sublessee within a reasonable period
of time after the occurrence of the Determination Date. Any termination,
expiration, cancellation or surrender of this Sublease on or prior to the
exercise of any Renewal option shall terminate the option. Such options may not
be severed from this Sublease nor separately sold, assigned nor otherwise
transferred.
(b) (b) If Sublessee disputes the fair market rent as determined by
Landlord pursuant to PARAGRAPH 18(a) hereof, then at any time on or before the
date occurring thirty (30) days after Sublessee has been notified by Landlord of
Landlord's determination of the fair market rent, Sublessee may initiate the
arbitration process provided for herein by giving notice to that effect to
Landlord, and if Sublessee so initiates the arbitration process such notice
shall specify the name and address of the person designated to act as an
arbitrator on its behalf. If Sublessee fails to initiate the arbitration process
as provided above, then Landlord's determination of the fair market rent during
such period shall be conclusive. Within thirty (30) days after the Landlord's
receipt of notice of the designation of Sublessee's arbitrator, Landlord shall
give notice to Sublessee specifying the name and address of the person
designated to act as an arbitrator on its behalf. If Landlord fails to notify
Sublessee of the appointment of its arbitrator within the time above specified,
then the appointment of the second arbitrator shall be made in the same manner
as hereinafter provided for the appointment of a third arbitrator in a case
where the two arbitrators appointed hereunder and the parties are unable to
agree upon such appointment. The two arbitrators so chosen shall meet within ten
(10) days after the second arbitrator is appointed, and if, within twenty (20)
days after the second arbitrator is appointed, the two arbitrators shall not
agree upon a determination of the fair market rent for such period, they shall
together appoint a third arbitrator. If they are unable to agree upon such
appointment within thirty (30) days after the appointment of the second
arbitrator, the third arbitrator shall be selected by the parties themselves if
they can agree thereon within a further period of fifteen (15) days. If the
parties do not so agree, then either party, on behalf of both and on notice to
the other, may request such appointment by the American Arbitration Association
(or any organization successor thereto). The majority of the arbitrators shall
determine the fair market rent of the Sublet Premises for the balance of the
Term and render a written certified report of their determination to both
Landlord and Sublessee within thirty (30) days of the appointment of the first
two arbitrators or thirty (30) days from the appointment of the third
arbitrator, if such third arbitrator is appointed pursuant to this Paragraph
18(b); and the fair market rent, so determined, shall be the Rental Payment for
the Sublet Premises during the balance of the Term.
(c) Each party shall pay the fees and expenses of the one of the two
original arbitrators appointed by or for such party, and the fees and expenses
of the third arbitrator and all other expenses (not including the attorneys
fees, witness fees and similar expenses of the parties which shall be borne
separately by each of the parties) of the arbitration shall be borne by the
parties equally.
(d) Each of the arbitrators selected as herein provided shall have at
least five (5) years experience in the leasing and renting of similar space in
Middlesex County, New Jersey.
(e) If the Sublessee initiates the aforesaid arbitration process and as
of the applicable date the amount of the fair market rent has not been
determined, Sublessee shall continue to pay the Rent then in effect and when the
determination has actually been made, an appropriate
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retroactive adjustment shall be made as of the applicable date. If that such
determination shall result in an overpayment by Sublessee of any Rent, such
overpayment shall be repaid by Landlord to Sublessee promptly after such
determination.
19. Landlord and Tenant agree that the provisions of PARAGRAPH 28TH of the Lease
shall be of no force and effect for so long as this Sublease shall be in force
and effect, and notwithstanding anything contained herein to the contrary, the
provisions of said paragraph shall not be incorporated herein by reference.
20. This Sublease may be executed in one or more counterparts, and by different
parties hereto on separate counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
21. This Agreement and the transactions herein contemplated shall be construed
in accordance with and governed by the laws of the State of New Jersey, without
reference to its conflicts of laws provisions. The parties hereto have
participated fully in the negotiation and preparation of this Agreement and,
accordingly, this Agreement shall not be more strictly construed against one
party.
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IN WITNESS WHEREOF, the parties hereto have caused this Sublease
Agreement to be executed on its behalf as of the day and year first above
written.
MARKETSOURCE, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name:
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Its:
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ALLOY ACQUISITION SUB, INC.
By: /s/ Xxxx X. XxXxxxx
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Name: Xxxx X. XxXxxxx
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Its: Asst. Secretary
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AGREED TO AND
ACCEPTED:
LANDLORD:
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
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