Exhibit 10.16
SUBLEASE
THIS AGREEMENT made this 12 day of /s/ , 2002 by and between Blau Marketing
Technologies, Inc., a Delaware corporation having offices at 000 Xxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 ("Sublandlord") and Maxmillian Partners LLC, a limited
liability company having offices at 000 Xxxx Xxxx Xxxx, Xxxxxxxx XX 00000
("Subtenant").
WITNESSETH
WHEREAS, Sublandlord leases 21,016 rentable square feet known as Suite 1.00
("Sublandlord Premises") of the building known as 000 Xxxxxxx Xxxx ("Xxxxxxxx"),
in Wilton, Connecticut pursuant to a lease dated May 19, 1999 ("Prime Lease")
between 372 Wilton Associates LLC ("Prime Landlord") and Blau Marketing
Technologies, Inc., a subsidiary of Xxxxxx.xxx LLC., predecessor in interest to
Sublandlord, as tenant, for a term which expires on September 30, 2009.
WHEREAS, Subtenant desires to sublease a portion of the Sublandlord Premises
from Sublandlord and Sublandlord has agreed to sublease a portion of the
Sublandlord Premises to Subtenant upon the terms and conditions hereinafter set
forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, and in consideration of the mutual covenants
contained herein, the parties hereto covenant and agree as follows:
ARTICLE 1 - DEFINITIONS
1.01 Except as expressly provided herein, all the terms used herein shall
have the respective meanings set forth in the Prime Lease.
ARTICLE 2 - PREMISES
2.01 Sublandlord hereby subleases to Subtenant and Subtenant hereby
subleases from Sublandlord Suite 187 consisting of approximately 2,739
rentable square feet of the Sublandlord Premises ("Premises"), together
with the partitions therein for a term ("Term") commencing upon the
date ("Commencement Date") which is the later to occur of:
(a) August 21, 2002, and
(b) the date on which the Prime Landlord consents to this Sublease and
continuing until September 29, 2009 unless sooner terminated in
accordance with the provisions hereof.
2.02 Upon the termination of this Sublease, Subtenant shall surrender
possession of the Premises in the condition required pursuant to the
provisions of the Prime Lease including the provisions of Sections 22
and 51. Subtenant shall remove all Subtenant's trade fixtures,
furniture, equipment and other personal property prior to the
expiration of the Term, and deliver the Premises in good repair and
condition subject to reasonable wear and tear.
ARTICLE 3 - RENT
3.01 Commencing on the date which is the sixtieth (60th) clay following the
Commencement Date ("Rent Commencement Date") Subtenant shall pay to
Sublandlord at the address set forth above (or at such other address as
Sublandlord may, from time to time, designate by written notice to
Subtenant), base rental ("Base Rent") at the rate of forty nine
thousand nine hundred eighty six and 75/100 dollars ($49,986.75) per
annum (further defined as $16.50 base rent per square foot and $1.75
per square foot for electricity), which shall be payable in equal
monthly installments of four thousand one hundred sixty five and 56/100
dollars ($4,165.56). Provided this Sublease is still in full force and
effect, and Subtenant is not in default of its obligations pursuant to
this Sublease beyond the applicable period for notice and cure,
Subtenant shall not be obligated to pay Base Rent for the final month
of the term.
3.02 All monthly installments of Base Rent shall be payable in advance on
the first day of each calendar month. Payment of the Base Rent for the
first month of this Sublease shall be payable upon Subtenant's
execution of the Sublease. Should the payment of the first month of
Base Rent or the Security Deposit (as hereinafter defined) be
dishonored, this Sublease shall be null and void.
3.03 If the Rent Commencement Date is on a date which is not the first day
of the calendar month, the monthly installment of the Base Rent shall
be prorated according to the number of the days remaining in the month
during which this Sublease shall have been in full force and effect
divided by the actual number of days in that month. Similarly, if the
Term shall end on a date which is not the last day of the calendar
month, the monthly installment of Base Rent shall be prorated according
to the number of the days in the month during which this Sublease shall
have been in full force and effect divided by the actual number of days
in that month.
ARTICLE 4 - OPTION TO CANCEL
4.01 Subtenant shall have the option to cancel this Sublease by giving
notice to the other no later than July 31, 2006. In the event Subtenant
elects to terminate this Sublease and gives notice in accordance with
the terms of this Sublease, this Sublease shall terminate on July 31,
2007 with the same force and effect as if such date were set forth as
the natural expiration of this Sublease. Time shall be of the essence
in the exercise of the option set forth in this Article 4.
ARTICLE 5 - SUBLEASE
5.01 Subtenant shall not assign this Sublease nor sublet the Premises
without the prior written consent of Sublandlord and Prime Landlord.
Sublandlord will not unreasonably withhold, delay or condition its
consent provided the Prime Landlord has consented to such assignment or
sublease. Subtenant agrees to comply with all the provisions of the
Prime Lease with respect to any such sublease or assignment.
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5.02 Except as otherwise expressly provided herein, Subtenant shall pay for
all reasonable fees, costs and expenses payable to the Prime Landlord
in connection with this Sublease or any sublease or assignment by
Subtenant.
ARTICLE 6 - ASSUMPTION OF CERTAIN TERMS OF THE
PRIME SUBLEASE AND PRIME LEASE BY SUBTENANT
6.01 It is specifically understood that this is a Sublease which is subject
and subordinate to all of the terms, covenants and conditions of the
Prime Lease. A copy of the Prime Lease is attached hereto as Exhibit
"A".
6.02 To the extent not inconsistent with the agreements and understandings
expressed or implied in this Sublease or applicable to the original
parties pursuant to the Prime Lease (including, without limitation, the
default provisions therein), the terms, provisions, covenants and
conditions of the Prime Lease are hereby incorporated into this
Sublease by reference with the following understandings:
(a) The "Landlord" as used in the Prime Lease shall refer to each of the
Sublandlord and the Prime Landlord and their respective successors
and assigns (or if the context requires, all of the Sublandlord and
the Prime Landlord); and the term "Tenant" as used in the Prime
Lease shall refer to the Subtenant hereunder, its permitted
successors and assigns.
(b) Sublandlord agrees to use reasonable efforts to cause the Prime
Landlord to fulfill its obligations under the Prime Lease to furnish
services to the Premises and Building, to repair the same or to
perform any other acts to make available any other services of
whatever kind and nature (including, without limitation, the
furnishing of heat, electricity, air conditioning and cleaning),
however nothing contained herein shall obligate Sublandlord to
furnish such services itself.
(c) All consents required under the Prime Lease for acts by the tenant
thereunder must be obtained by Subtenant as a condition to any such
acts on its part. Any and all consents of Sublandlord shall not be
unreasonably withheld, delayed or conditioned, except as otherwise
expressly provided herein. Sublandlord will cooperate with
Subtenant's activities in dealing with Prime Landlord, to obtain any
such consents.
6.03 It is expressly understood and agreed by and between the Sublandlord
and Subtenant that Subtenant agrees to abide by all the terms and
conditions of the Prime Lease and shall be entitled to all of the
benefits under the Prime Lease as they relate to the Premises,
provided, however, the following provisions of the Prime Lease are
expressly excluded from (and not incorporated by reference or
otherwise) this Sublease: the second and third sentences of Section 40,
Sections 41(c), 41(d), 42A, 42B, 46(b), 49, 63, 64, 65, 66, and 68, the
4th sentence of Section 78 and Sections 82, 83, 84, 85, 86 and 87.
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6.04 Whenever in the Prime Lease a time is specified for the giving of any
notice or the making of any demand by the tenant thereunder, such time
is hereby changed (for the purpose of the Sublease only) by adding two
(2) days thereto, and whenever in the Prime Lease a time is specified
for the giving of any notice or the making of any demand by the Prime
Landlord, such time is hereby changed (for the purpose of this Sublease
only) by subtracting two (2) days therefrom. It is the purpose and
intent of the foregoing provision to provide the Sublandlord with time
within which to transmit to the Prime Landlord any notices or demands
received from Subtenant and to transmit to the Subtenant any notices or
demands received from the Prime Landlord.
6.05 Sublandlord hereby warrants and represents that (a) the Prime Lease is
in full force and effect and (b) the Sublandlord is not in default
thereunder.
6.06 The Subtenant agrees that in any case where the provisions of this
Sublease require the consent or approval of the Sublandlord prior to
the taking of any action, it shall be a condition precedent to the
taking of such action that the prior consent or approval of the
Sublandlord and Prime Landlord shall have been obtained if the consent
of the Landlord must be obtained under the Prime Lease in such cases.
The Sublandlord agrees to promptly transmit Subtenant's requests for
such consent or approval to the Prime Landlord and shall cooperate with
Subtenant's efforts to have any discontinued or defaulted services
resumed.
ARTICLE 7 - CONDITION OF PREMISES
7.01 Subtenant hereby agrees to sublet the Premises in their "as is"
condition, it being understood that Sublandlord has not agreed to
perform any work or alter or improve the Premises in any respect,
provided, however, Sublandlord shall at Sublandlord's sole cost and
expense remove any removable partitions which Subtenant advises
Sublandlord Subtenant wants to be removed. Subtenant shall notify
Sublandlord of the partitions Subtenant desires Sublandlord to remove
within ten (10) days of the date Subtenant signs this Sublease.
Sublandlord has not made any guaranties or representations with respect
to the Premises or the Building, except as expressly set forth herein.
7.02 If Subtenant desires to make any alterations or improvements to the
Premises, Subtenant shall be required to obtain Sublandlord's approval
thereof in addition to securing the Prime Landlord's approval as
required by the Prime Lease.
7.03 Other property included is referenced on the attachment, Exhibit A
ARTICLE 8 - INDEMNIFICATION
8.01 Sublandlord hereby covenants and agrees to indemnify, defend and hold
Subtenant, its successors and assigns harmless from and against any and
all actions, claims, demands, damages, liabilities and expenses
(including without limitation, reasonable attorneys' fees) based upon,
arising out of or incurred on account of (a) any violation, caused,
suffered or permitted by Sublandlord, its agents, servants, employees
or their respective successors or assigns of any of the terms,
covenants or conditions of the Prime Lease or this Sublease; or (b) a
breach of any of the representations or warranties made by Sublandlord
to Subtenant in this Sublease.
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8.02 Subtenant hereby covenants and agrees to indemnify, defend and hold
Sublandlord, its successors and assigns harmless from and against any
and all actions, claims, demands, damages, liabilities and expenses
(including without limitation, reasonable attorneys fees) based upon,
arising out of or incurred on account of (a) any violation, caused,
suffered or permitted by Subtenant, its agents, servants, employees or
their respective successors or assigns, of any of the terms, covenants
or conditions, of the Prime Lease or this Sublease; (b) any damage or
injury to persons or property in connection with the use or occupation
of the Premises by Subtenant; or (c) the payment of any transfer,
sales, use or other taxes which may be payable with respect to this
Sublease or the Furniture.
8.03 The provisions of this Article VIII and of Article IX shall survive the
expiration or sooner termination of this Sublease.
8.04 If Subtenant shall fail to perform any of the terms, provisions,
covenants or conditions of this Sublease on its part to be performed,
which failure constitutes a default under the Prime Lease then
Sublandlord may, but shall not be obligated to, after 10 days notice,
perform any such term, provision, covenant or condition on Subtenant's
behalf and the full cost and expense therefor shall immediately be due
and owing by Subtenant to Sublandlord, together with interest thereon
at the lesser of the rate of two points above
8.05 the rate quoted by Citibank N.A. as its prime rate from the date of
such default to the date of payment by Subtenant, or the maximum
interest rate allowed by law. The option given to Sublandlord herein is
for the sole protection of Sublandlord and shall in no event release
Subtenant from its obligations to perform the terms, obligations,
covenants and provisions on its part to be performed hereunder or to
deprive Sublandlord of any legal rights or remedies which it may have
by reason of the default.
ARTICLE 9 - BROKERAGE
9.01 Sublandlord and Subtenant each represent and warrant to the other that
no leasing agent or broker has been involved with this Sublease and
that this Sublease was not brought about or procured through the use,
negotiation and/or instrumentality of any other agent or broker other
than Barbara's Realty, Inc. (collectively, "Broker"). Each of
Sublandlord and Subtenant covenant and agrees to 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 based on any dealings between the indemnifying party
and any other agent or agents and/or any broker or brokers, together
with all costs and expenses incurred in resisting such claims
(including, without limitation, reasonable attorneys fees). Sublandlord
will pay the Broker any fees or commissions which may be payable to
Broker with respect to this Sublease pursuant to a separate written
agreement.
ARTICLE 10 - QUIET ENJOYMENT
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10.01 Sublandlord agrees that Subtenant upon paying the rent and all other
sums and charges as herein provided and observing and keeping the
covenants, agreements and conditions of this Sublease on its part to be
observed and kept, Subtenant shall have quiet enjoyment of the Premises
during the Term, subject to the terms and provisions of the Prime
Lease.
ARTICLE 11 - CONSENT
11.01 This Sublease is conditional on the prior written approval of the Prime
Landlord and shall be void and of no force and effect unless and until
the Prime Landlord gives such consent. Sublandlord shall use diligent
efforts to obtain the Prime Landlord's consent.
ARTICLE 12 - SECURITY DEPOSIT
12.01 Subtenant has deposited the sum of twenty four thousand nine hundred
ninety three and 36/100 ($24,993.36) ("Security Deposit") as security
for the full and faithful performance of all the terms, covenants and
conditions of this Sublease. The Security Deposit will be held in a
separate escrow account but may be applied by Sublandlord to cure any
default of Subtenant under this Sublease, and upon notice by
Sublandlord of such application, Subtenant shall replenish the Security
Deposit in full by paying to Sublandlord within five (5) days of demand
the amount so applied. The Security Deposit shall not be deemed an
advance payment of rent, nor a measure of damages for any default by
Subtenant under this Sublease, nor shall it be a bar or defense (except
to the extent actually applied by Sublandlord to amounts due from
Subtenant hereunder) of any action which Sublandlord may at the time
commence against Subtenant. In the absence of evidence satisfactory to
Sublandlord of an assignment of the right to receive the Security
Deposit or the remaining balance thereof, Sublandlord may return the
Security Deposit to the original Subtenant, regardless of one or more
assignments of this Sublease. Upon the transfer Sublandlord's interest
under this Sublease, Sublandlord's obligation to Subtenant with respect
to the Security Deposit shall terminate upon assumption of such
obligation by the transferee.
12.02 If Subtenant shall fully and faithfully comply with all the terms,
provisions and conditions of the Sublease, Subtenant may reduce the
Security Deposit as of the date which is eighteen (18) months after the
Commencement Date to the sum of twelve thousand four hundred ninety six
and 68/100 dollars ($12,496.68) and from and after such date, the
Security Deposit shall be such reduced amount. In the event Subtenant
is entitled to reduce the amount of the Security Deposit in accordance
with this Section 12.02, Sublandlord shall refund the difference
between the original Security Deposit and reduced Security Deposit
permitted hereunder within thirty (30) days of the eighteen (18) month
anniversary of the Commencement Date. If Subtenant shall not have fully
and faithfully complied with all the terms, provisions and conditions
of this Sublease, Subtenant shall have no right to reduce the amount of
the Security Deposit, and in such event, Sublandlord shall continue to
hold the Security Deposit required pursuant to the provisions of
Section 12.01.
12.03 If any default shall occur, Sublandlord may apply the whole or any part
of the Security Deposit for payment and apply the whole or any part of
the proceeds thereof, (i) toward the payment of any rent 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
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respect of any of the terms, covenants and conditions of this Sublease,
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 Security Deposit, 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. The failure
of Subtenant to deposit an additional amount of cash shall be deemed a
material default under this Sublease. If Subtenant shall fully and
faithfully comply with all of the terms, provisions, covenants and
conditions of this Sublease, the Security Deposit shall be returned to
Subtenant after the Expiration Date and after delivery of possession of
the Premises to Sublandlord in the condition required by this Sublease.
Subtenant shall not assign or encumber or attempt to assign or encumber
the monies deposited herein as security and neither Sublandlord nor its
successors or assigns shall be bound by any such assignment,
encumbrance, attempted assignment or attempted encumbrance.
12.04 If Subtenant shall fully and faithfully comply with all of the terms,
provisions, covenants, and conditions of this Sublease, including the
payment of all Base Rent and additional rent, the Security Deposit, or
any balance thereof, shall be returned to Subtenant within thirty (30)
days after the following:
(a) the expiration of the term of this Sublease,
(b) the removal of Subtenant and its property from the Premises in
accordance with the terms of this Sublease and Prime Lease; and
(c) the surrender of the Sublet Premises in the condition and repair
existing as of the Commencement Date, subject to reasonable wear and
tear and in accordance with the terms of the Sublease and the Prime
Lease.
ARTICLE 13 - ENTIRE AGREEMENT
13.01 This Sublease (including the Exhibits annexed hereto, which are
expressly made a part hereof as though fully set forth herein) contains
the entire agreement between the parties with respect thereto. This
Sublease may not be modified, changed or supplemented, nor may any
obligations hereunder be deemed waived, except by written instrument
signed by the party to be charged or by its agent duly authorized in
writing or as otherwise expressly permitted herein. The parties do not
intend to confer any benefit hereunder on any person, firm or
corporation other than the parties hereto, except that the rights of
each of the Prime Landlord with respect to the Premises are intended to
be preserved.
ARTICLE 14 - ATTORNMENT
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14.01 This Sublease shall, at the option of the Prime Landlord or any
successor Prime Landlord or lessor under any Superior Lease as
hereinafter defined, remain in full force and effect and the
subtenant/assignee hereunder shall attorn to and recognize Prime
Landlord or successor Prime Landlord as owner and landlord hereunder
and shall promptly upon such party's request, execute and deliver all
instruments necessary or appropriate to confirm such attornment and
recognition, provided that; (1) in any type of attornment or "Subject
To" clause in any foreclosure, Subtenant will not be made a party
defendant to the foreclosure, nor shall Subtenant's possession of the
Premises or of any other rights under the Lease or Sublease in this
respect, be disturbed by reason of any foreclosure, as long as there is
no default by the Subtenant under the Sublease beyond any applicable
grace periods providing for the curing of such defaults, and (2)
Sublandlord has first secured for Subtenant's benefit a Subordination,
Non Disturbance and Attornment Agreement("SNDA") that is reasonably
acceptable to Prime Landlord's/Sublandlord's lender and Subtenant,
which SNDA shall be executed by and among Landlord's/Sublandlord's
lender, Landlord/Sublandlord and Subtenant. The subtenant/assignee
hereunder hereby waives all rights under any present or future laws or
otherwise to elect, by reason of the termination of the Tenant's Lease,
any underlying Lease or any Superior Lease, to terminate this
sublease/assignment or surrender possession of the premises demised
hereby.
ARTICLE 15 - NOTICE
15.01 All notices, requests or demands permitted or required to be given by
the terms of this Sublease or by the Prime Lease shall be given by (a)
a courier service addressed to such party, (b) by personal delivery
return receipt requested, or (c) mailed by certified mail, return
receipt requested fully prepaid and addressed to the party for whom it
is intended; if to the Sublandlord at the address above written;
Attention: Chief Financial Officer, with a copy to Euro RSCG Worldwide,
Inc., 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General
Counsel, and if to the Subtenant, to the address above mentioned
Attention: Chief Financial Officer or to such other address as may be
designated by the respective parties by like notice. Such notice shall
be deemed received upon delivery or refusal of delivery by the party
upon whom notice is given.
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IN WITNESS WHEREOF, Sublandlord and Subtenant have respectively signed and seals
this Sublease as of the day and year first above written.
BEAU MARKETING TECHNOLOGIES, INC.
By: /s/
---------------------------
MAXMILLIAN PARTNERS, LLC
By: /s/ 8-12-02
--------------------------
Xxxxxxx Xxxxxx - CEO
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Addendum
Inventory of furniture included in sublease agreement:
1. Conference room
o 6 chairs, green/blue fabric
o I oval wood conference table
2. Kitchen
o GE Space Saver II Microwave oven S/n VV097452B
o GE Mini Fridge S/N VV102102
3. Workstations
o (9) Xxxxxx Xxxxxx Ethospace Workstations 8x8, with 9 white boards
o NO CHAIRS with Workstations
4. Offices
o (5) Sets of Xxxxxx Office Furniture, complete with credenza and
overhead cabinets
o (6) Xxxx back upholstered arm chairs
o (4) Guest Office chairs, wooden arms, with small green square
patterns
o (3) Metal book cases
5. Phone/Wiring Closet
o Telco Bix Block ( contains all phone cables to office area)
o data Patch panel 72 ports
There were also 5 or 6 small garbage baskets
