EX-10.111
SUBLEASE
--------
This Agreement of Sublease is made as of the 18th day of December,
2001, between Xxxxx Personnel Agency, Inc., having an office at 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx ("Sublessor") and SpaceLogix, Inc., having an office
at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx ("Sublessee").
W I T N E S S E T H :
- - - - - - - - - -
A. Pursuant to a lease dated March 2000 (the "Lease") between
ARTF-New York, Inc. ("Landlord"), as landlord, and Sublessor, as tenant,
Sublessor is the tenant of the premises (the "Demised Premises") consisting of a
portion of the ninth and thirteenth floors at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx (the "Subleased Premises").
B. Sublessee desires to sublease a portion of the Subleased Premises
(the "Subleased Premises") from Sublessor, which Subleased Premises is
separately demised from the balance of the Demised Premises and is located on
the 13th floor of 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx and is identified by
cross-hatching on Exhibit A hereto.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, Sublessor and Sublessee
hereby agree as follows:
ARTICLE I
Subleased Premises, Term
1.01. Sublessor hereby subleases the Subleased Premises to
Sublessee, and Sublessee hereby hires and takes the Subleased Premises from
Sublessor, subject to the terms, provisions, covenants and conditions of the
Lease and this Sublease.
1.02. The term of this Sublease (the "Term") shall commence two
business days after the date on which Sublessor gives notice to Sublessee that
Landlord has consented to this Sublease and Sublessor delivers possession of the
Sublesed Premises to Sublessee with "Sublessor's Initial Work" (as hereinafter
defined) completed (the "Commencement Date") and shall end on the last day of
the month in which the second anniversary of the Commencement Date occurs,
unless the Term shall sooner end pursuant to any of the terms, provisions or
conditions of this Sublease, the Lease or pursuant to law. Notwithstanding the
foregoing, either Sublessor or Sublessee shall have the right to terminate this
Sublease at any time following the first anniversary of the Commencement Date of
this Sublease upon not less than ninety days' prior written notice to the other
party.
1.03. Sublessee acknowledges that it has inspected the Subleased
Premises and except as provided in this Section 1.03, hereby accepts the same in
an "as is" condition on the date hereof; provided, however that Sublessor agrees
to paint and carpet the Subleased Premises and repair the radiator covers in the
Subleased Premises ("Sublessor's Initial Work") and Sublessor agrees to install
window-type air conditioning units in each office of the Subleased Premises (the
"A/C Work") by no later than April 30, 2002. If Sublessor fails to complete the
A/C Work by April 30, 2002, Sublessee shall give notice of such failure to
Sublessor. If Sublessor fails to complete the A/C Work within twenty days after
receipt of
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such notice from Sublessee, Sublessee shall have the right to perform the A/C
Work on behalf of Sublessor. Sublessor agrees to pay to Sublessee the reasonable
costs incurred by Sublessee in performing the A/C Work within twenty days of
Sublessee's delivery to Sublessor of a receipted invoice therefor, failing which
Sublessee shall have the right to offset such costs against annual fixed rent
coming due under this Sublease.
1.04. Sublessee shall, no later than the termination of this
Sublease and in accordance with all of the terms of this Sublease and the Lease,
vacate and surrender to Sublessor the Subleased Premises, together with all
alterations, in good order, condition and repair, reasonable wear and tear
excepted and loss by fire or other casualty excepted. Sublessee acknowledges
that Sublessee shall be solely responsible for any and all restoration
obligations imposed upon the tenant under the Lease. Sublessee's obligation to
observe or perform this covenant shall survive the expiration or earlier
termination of this Sublease. Sublessee expressly waives, for itself and for any
person claiming through or under Sublessee, any rights which Sublessee or any
such person may have under the provisions of Section 2201 of the New York Civil
Practice Law and Rules and any successor law of like import then in force in
connection with any holdover summary proceedings which Sublessor may institute
to enforce the foregoing provisions of this Article.
1.05. If Sublessee shall fail to duly and timely surrender the
Subleased Premises in accordance with the terms and conditions of this Sublease
and the Lease, either at the expiration of the term of this Sublease, upon the
occurrence of a default which continues beyond the expiration of applicable
grace or cure periods, or upon the occurrence of any other event causing the
termination of this Sublease (a "Holdover"),
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in addition to all of the rights and remedies available to Sublessor under this
Sublease and the Lease, in equity or in law, it is understood that Sublessor may
elect, by notice to Sublessee, to treat Sublessee as a holdover upon a
month-to-month basis at a rent equal to the greater of (i) the then current fair
market rental value of the Subleased Premises, or (ii) two times the fixed rent
and additional rent per month which Sublessee was required to pay during (or in
the case of additional rent, on account of or attributable to) the calendar
month immediately prior to termination. If the Subleased Premises are not
surrendered upon termination, then Sublessee shall indemnify and hold harmless
Sublessor against any loss, costs, liability or expenses (including attorneys'
fees) resulting from the failure to surrender, including any and all claims made
by Landlord or any succeeding lessee or sublessee founded upon such delay or
failure to vacate the Subleased Premises. Nothing contained in this Section
shall be deemed to give to Sublessee any right to fail to surrender possession
or to hold over, and the provisions of this Section shall not constitute an
offer to rent on a month-to-month bases or at the rent set forth above.
ARTICLE II
Rent
2.01. Sublessee covenants and agrees to pay to Sublessor, at the
address of the Building, an annual fixed rental as follows: (i) for the period
running from the Commencement Date through the day preceding the first
anniversary thereof: Sixty-Nine Thousand Five Hundred Dollars ($69,500.00) per
annum, payable in equal monthly installments of Five Thousand Seven Hundred
Ninety-One and 67/100 Dollars ($5,791.67); and (ii) for the period running from
the second anniversary of the Commencement Date
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through the last day of the month in which the second anniversary of the
Commencement Date occurs: Seventy-One Thousand Four Hundred Twenty Dollars
($71,420.00) per annum, payable in equal monthly installments of Five Thousand
Nine Hundred Fifty-One and 67/100 Dollars ($5,951.67).
The annual fixed rental shall be payable in advance on the first day
of each calendar month without notice or demand and without abatement, deduction
or set-off of any amount whatsoever except as may be expressly provided for
herein. An amount equal to one full month's rent shall be payable on the signing
of this Sublease and shall be applied by Sublessor to the fixed rental payment
for the first full month of the Term of this Sublease. If the Commencement Date
shall occur on a day other than the first day of a calendar month, fixed rent
for such calendar month shall be prorated for the period from the Commencement
Date to the last day of the said calendar month. The fixed rent for the calendar
month in which the termination date of this Sublease occurs shall be similarly
prorated and paid on the first day of the month in which said termination falls.
ARTICLE III
Subordination; Assumption of
Certain Lease Terms by Sublessee
3.01. This Sublease shall be subject and subordinate to (i) the
Lease (a true and complete copy of which with financial terms redacted is
attached hereto as Exhibit B) and to all of the terms, provisions, covenants and
conditions thereof and (ii) any and all amendments of the Lease or supplemental
agreements relating thereto hereafter made between Landlord and Sublessor
(copies of which Sublessor agrees to deliver to Sublessee except for the rent
and certain other financial provisions which may be contained therein).
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Sublessor agrees that Sublessee shall not voluntarily terminate the Lease as the
same relates to the Subleased Premises without Sublessee's consent. The
foregoing provisions shall be self-operative and no further instrument of
subordination shall be necessary to effectuate such provisions unless required
by Landlord or Sublessor, in which event Sublessee shall, upon demand by
Landlord or Sublessor at any time and from time to time, execute, acknowledge
and deliver to Sublessor and Landlord any and all instruments that Sublessor or
Landlord may deem reasonably necessary or proper to confirm such subordination
of this Sublease, and the rights of Sublessee hereunder. Sublessee hereby
appoints Sublessor its attorney in fact, coupled with an interest, for the
purpose of executing any such instrumentation of subordination if Sublessee
shall fail to execute, acknowledge and/or deliver any such instrument of
subordination within ten (10) days after Landlord's or Sublessor's demand
therefor.
3.02. To the extent not inconsistent with the agreements or
understandings expressed or implied in this Sublease or applicable only to the
original parties to the Lease (e.g., the rent and additional rent reserved under
the Lease), the terms, provisions, covenants and conditions of the Lease are
hereby incorporated herein by reference on the following understandings:
(a) The term "Landlord" as used therein shall refer to
Sublessor hereunder, its successors and assigns, the term "Tenant" as used
therein shall refer to Sublessee hereunder, its permitted successors and
assigns, and the term "Subleased Premises" as used therein shall refer to the
Subleased Premises.
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(b) Wherever it is provided in the Lease that Landlord has the
right to elect to perform any covenant of the tenant thereunder upon default of
the tenant in observing or complying with such covenant, such right shall inure
to the benefit of Sublessor.
(c) Sublessor shall not be obligated to perform and shall not
be liable for the performance by Landlord of any of the obligations of Landlord
under the Lease. Sublessee shall have no claim against Sublessor by reason of
any default on the part of Landlord. Nothing herein contained shall be deemed to
authorize Sublessee to represent Sublessor in connection with any suit or claim
by or against Landlord. Sublessor shall have no obligation, during the term of
this Sublease to render any services to Sublessee in or to the Subleased
Premises of any nature whatsoever or to expend any money for the preservation or
repair of the Subleased Premises. Sublessee agrees to look solely to Landlord
for the furnishing of any services to which Sublessor may be entitled under the
Lease. Sublessor agrees to cooperate with Sublessee, and to use reasonable
efforts, without, however, incurring any liabilities or expenses not otherwise
provided for in the Lease or this Sublease, by taking whatever action shall be
reasonably required, to enforce for the benefit of Sublessee the obligations of
Landlord to Sublessor under the Lease insofar as they relate to the Subleased
Premises. All out-of-pocket expenses of Sublessor arising from Sublessor's
action taken pursuant to the preceding sentence shall be reimbursed by
Sublessee. By virtue of this subsection, in connection with the incorporation of
the Lease, the term "Sublessor" shall be deemed, for the purposes of this
Sublease, to mean "Sublessor shall use reasonable efforts, without, however,
incurring any liabilities or expenses not otherwise provided for in the Lease or
this Sublease, to ensure that Landlord" whenever such a modification is required
so that an incorporated provision reflects the agreement of the parties hereto
as expressed in this
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paragraph 3.02(c). Without limiting the generality of the foregoing provisions
of this Section, Sublessor shall not be responsible for furnishing any service,
maintenance or repairs to the Subleased Premises, and Sublessee shall in no
event whatsoever be entitled to any allowance, reduction, or adjustment of the
rent or additional rent payable under this Sublease by reason of the failure of
Landlord or Sublessor to comply with Landlord's obligations, if any, to supply
or render the same.
(d) Except as expressly set forth in this Sublease, Sublessee
shall observe and perform the terms, provisions, covenants and conditions of the
Lease on the part of the tenant thereunder to be observed and performed, and
shall not do or suffer or permit anything to be done which would result in a
default under the Lease or cause same to be terminated or forfeited.
(e) For the purposes of incorporation of the terms of the
Lease into this Sublease, the Lease is modified as follows:
(i) Paragraphs 1, 3(B), 3(D), 7, 8(D), 11(E), 11(F), 11(G), 15, 16,
33, 36, 38, 39, 40 and 41 are deleted in their entirety.
(ii) Paragraph 4(C) is modified by deleting the words "July 1, 2000
and ending on June 30, 2001" in the third line thereof and by inserting in lieu
thereof the words "July 1, 2001 and ending on June 30, 2002" and Paragraph 4(D)
is modified by deleting the word "5.49%" and by inserting in lieu thereof the
word "2.31%".
(iii) Paragraph 4(E) is modified by deleting the words "Xxxxxxx &
Xxxxxxxxx, Inc." therefrom.
(f) Sublessee acknowledges that in the event of a (i)
termination of the Lease for any reason, or (ii) re-entry or dispossess by
Landlord under
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the Lease, Landlord may, at its option take over all of the right, title and
interest of Sublessor hereunder and Sublessee agrees that it shall, at
Landlord's option, attorn to Landlord pursuant to the then executory provisions
of this Sublease, except that Landlord shall not (i) be liable for any previous
act or omission of Sublessor under this Sublease, other than continuing
defaults, (ii) be subject to any offset not expressly provided in this Sublease,
which theretofore accrued to the Sublessee against Sublessor, or (iii) be bound
by any previous modification of this Sublease (which is made without Landlord's
consent) or by any previous prepayment of more than one month's Rent unless
theretofore expressly approved by Landlord.
ARTICLE IV
Notices
4.01. Except as otherwise set forth herein, whenever in the Lease a
time is specified for the giving of any notice or the making of any demand by
tenant thereunder, such time is hereby changed (for the purpose of this Sublease
only) by subtracting three (3) days therefrom and whenever in the Lease a time
is specified for the giving of any notice or the making of any demand by the
Landlord thereunder, such time is hereby changed (for the purposes of this
Sublease only) by adding three (3) days thereto. Whenever in the Lease a time is
specified within which the Tenant thereunder must give notice or make a demand
following an event, or within which Tenant must respond to any notice, request,
or demand previously given or made by Landlord thereunder, or comply with any
obligation on Tenant's part thereunder, such time is hereby changed (for the
purposes of this Sublease only) by subtracting three (3) days therefrom.
Whenever in the Lease a time is specified within which the Landlord
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thereunder must give notice or make a demand following an event, or within which
Landlord must respond to any notice, request, or demand previously given or made
by Tenant thereunder, such time is hereby changed (for the purposes of this
Sublease only) by adding three (3) days thereto. It is the purpose and intent of
the foregoing provisions to provide Sublessor with time within which to transmit
to Landlord any notices or demands received from Sublessee, and to transmit to
Sublessee any notices or demands received from Landlord. All notices and other
communications required or desired to be given pursuant to this Sublease shall
be in writing and either delivered personally, with receipt acknowledged in
writing, or sent by certified or registered mail, postage prepaid, return
receipt requested, to the receiving party at its address at the Building (or
such other address as may be designated by the designating party from time to
time by notice thereof). Notices delivered by personal delivery shall be deemed
received one (l) day after personal delivery; notices mailed by certified mail
shall be deemed received three (3) days after mailing.
ARTICLE V
Right of Sublessor to
Cure Sublessee's Defaults
5.01. If Sublessee shall fail to perform any of the terms,
provisions, covenants or conditions of this Sublease on its part to be
performed, and if such failure shall constitute a default under the Lease, then
Sublessor may, after written notice, at its option, perform any such term,
provision, covenant or condition, and the full cost and expense of such
performance shall immediately be due and owing by Sublessee to Sublessor,
together with interest thereon at the rate of 12% per annum from the date of
payment thereof by Sublessor.
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5.02. If Sublessee shall default in the performance or observance of
any term, covenant, or agreement contained herein or in the Lease as herein
incorporated, and if such default shall not have been remedied after notice
given by Sublessor to Sublessee within any grace period (as modified by Article
4 of this Sublease) provided for under the Lease, then Sublessor shall be
entitled to exercise any and all rights and remedies to which Sublessor is
entitled by law or which are specifically granted to Landlord under the Lease,
which rights and remedies are hereby incorporated herein and made a part hereof
with the same force and effect as though herein specifically set forth.
5.03. Sublessee covenants and agrees to indemnify Sublessor and hold
it safe and harmless against any and all claims, losses, damages and liabilities
(including reasonable attorneys' fees) resulting from or arising out of (i) any
breach or default hereunder on the part of Sublessee, (ii) any work done in or
to the Subleased Premises by Sublessee or its agents, servants, employees or
contractors, or by any person claiming through or under Sublessee, (iii) any
act, omission, negligence or other fault on the part of Sublessee or its agents,
servants, employees, contractors, undertenants, or licensees, or (iv) any
accident, injury or damage whatsoever to any person, firm or corporation
occurring during the term hereof in or about the Subleased Premises, unless the
same shall have been caused by the negligence of Sublessor, a breach or default
by Sublessee under this Sublease or the Lease, or resulting from or arising out
of its use and occupancy of the Subleased Premises.
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ARTICLE VI
Covenants and Approvals of Sublessor
6.01. If this Sublease requires the consent or approval of Sublessor
prior to the taking of any action, then it shall be a condition precedent to the
taking of such action that the prior consent or approval of Landlord shall have
been obtained if the same must be obtained under the Lease. Sublessor shall have
no duty or responsibility with respect to obtaining the consent or approval of
Landlord when the same is required under the terms of the Lease other than the
mere transmission by Sublessor to Landlord or Sublessor of Sublessee's request
for such consent or approval. Sublessor shall have no such duty or
responsibility of transmission to Landlord of Sublessee's request for consent or
approval to an assignment or subletting under Article 8 hereof unless Sublessor
shall give its prior written consent to such assignment or subletting.
ARTICLE VII
Broker
7.01. Sublessee covenants, warrants and represents that it has dealt
with no broker in connection with this Sublease other than Xxxxxxx Xxxx Realty
Associates, Inc. and Lansco. Sublessee hereby indemnifies Sublessor and holds
Sublessor harmless against any claims, loss, costs and expenses (including
reasonable attorneys' fees) resulting from a breach by Sublessee of this
covenant, representation and warranty.
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ARTICLE VIII
Assignment, Subletting and Mortgaging
8.01. (a) Notwithstanding any provisions of the Lease to the
contrary, Sublessee shall not, without the prior written consent of Landlord and
Sublessor (i) mortgage or otherwise encumber the Subleased Premises, in whole or
in part, or (ii) assign this Sublease or sublet the Subleased Premises, in whole
or in part. Any transfer, by operation of law or otherwise, of Sublessee's
interest in this Sublease (in whole or in part) or of a fifty percent (50%) or
greater interest in Sublessee (whether stock or partnership interest or by
merger or consolidation or otherwise), other than in connection with a transfer
to "Guarantor" (as hereinafter defined) in furtherance of a merger between
Sublessee and Guarantor, shall be deemed an assignment of this Sublease within
the meaning of this Article.
(b) If without Sublessor's written consent this Sublease is
assigned, or the Subleased Premises are sublet or occupied by anyone other than
Sublessee, Sublessor may accept the rent from such assignee, Sublessee or
occupant, and apply the net amount thereof to the rent herein reserved, but no
such assignment, subletting, occupancy or acceptance of rent shall be deemed a
waiver of Section (a) of this Article. Consent by Sublessor to an assignment or
subletting shall not (i) relieve Sublessee from the obligation to obtain
Landlord's consent to such assignment or subletting in accordance with the
applicable provisions set forth in the Lease, or (ii) relieve Sublessee from the
obligation to obtain Sublessor's written consent to any further assignment or
subletting.
(c) If this Sublease be assigned or if the Subleased Premises or
any part thereof be further sublet or occupied by anybody other than Sublessee,
Sublessor may, after default by Sublessee, collect rent from the assignee,
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Sublessee or occupant, and, if Sublessor does so, it shall apply the net amount
collected to the fixed rent, additional rent and other charges herein reserved,
but no such assignment, subletting occupancy or collection shall be deemed a
waiver of Sublessee's covenants under this Article, or the acceptance by
Sublessor of the assignee, Sublessee or occupant as tenant hereunder or a
release of Sublessee from the further performance by Sublessee of any of the
terms, covenants and conditions of this Sublease on the part of Sublessee to be
performed hereunder.
ARTICLE IX
Assignment of Sublease by
Sublessor; Termination of Lease
9.01. Sublessor, at Sublessor's option, may assign all of its right,
title and interest in this Sublease to Landlord. If Landlord shall assume all of
the obligations hereunder of Sublessor to Sublessee, then Sublessor shall be
automatically released and discharged from all covenants, conditions, agreements
and obligations of Sublessor accruing hereunder from and after the effective
date of such assignment.
9.02. If the Lease shall be terminated for any reason whatsoever,
including, but not limited to, termination by Sublessor, or Landlord in
accordance with any right or option given to any such party in the Lease, then
this Sublease shall terminate automatically without notice to Sublessee and
without any liability on the part of Sublessor to Sublessee as a result of such
termination.
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ARTICLE X
Security
10.01. Upon the signing of this Sublease, Sublessee shall deposit
with Sublessor the sum of Seventeen Thousand Three Hundred Seventy-Five Dollars
($17,375) as a security deposit for the faithful performance by Sublessee of its
obligations under the terms hereof. If Sublessee defaults in the performance of
any of the terms of this Sublease, including the payment of rent or any
additional rent, Sublessor may use, apply or retain the whole or any part of the
security so deposited to the extent required for the payment of any rent or for
any sum which Sublessor may expend or may be required to expend by reason of
Sublessee's default in respect of any of the terms of this Sublease, including
any damages or deficiency in the re-letting of the Subleased Premises, whether
accruing before or after summary proceedings or other reentry by Sublessor. In
the case of every such use, application or retention, Sublessee shall, on
demand, pay to Sublessor the sum so used, applied or retained which shall be
added to the security deposit so that the same shall be replenished to its
former amount. If Sublessee shall fully and punctually comply with all of the
terms of this Sublease, the security shall be returned to Sublessee within ten
(10) days after the termination of this Sublease and delivery of exclusive
possession of the Subleased Premises to the Sublessor.
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ARTICLE XI
Insurance
11.01. (a) Sublessee shall not violate, or permit the violation of,
any order, rule or regulation of the New York Board of Fire Underwriters, and
shall not do, or permit anything to be done, or keep or permit anything to be
kept in the Subleased Premises which would increase the fire or other casualty
insurance rate on the Building or the property therein over the rate which would
otherwise then be in effect (unless Sublessee pays the resulting increased
amount of premium as provided in Section (b) of this Article) or which would
result in insurance companies of good standing refusing to insure the Building
or any of such property in amounts and at normal rates reasonably satisfactory
to Sublessor and Landlord.
(b) If, by reason of any act or omission on the part of
Sublessee, the rate of fire insurance with extended coverage on the Building or
equipment or other property of Sublessor or Landlord shall be higher than it
otherwise would be, Sublessee shall reimburse Sublessor or Landlord, as the case
may be, on demand, for that part of the premiums for fire insurance and extended
coverage paid by Sublessor or Landlord, as the case may be, because of such act
or omission on the part of Sublessee, which sum shall be deemed to be additional
rent and collectible as such.
ARTICLE XII
Miscellaneous
12.01. Sublessee may not make any alterations to the Subleased
Premises without Sublessor's consent.
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12.02. This Sublease and the Lease incorporated herein contain the
entire agreement between the parties with respect to the subject matter of this
Sublease and all prior negotiations and agreements with respect thereto are
merged in this Sublease.
12.03. This Sublease may not be changed, modified or discharged, in
whole or in part, and no oral or executory agreement shall be effective to
change, modify or discharge this Sublease, in whole or in part, or any
obligations hereunder, unless such agreement is set forth in a written
instrument executed by the party against whom enforcement is sought.
12.04. No consent or approval of Sublessor shall be deemed to have
been given or to be effective for any purpose unless such consent or approval is
set forth in a written instrument executed by Sublessor.
12.05. The terms, covenants, and conditions contained in this
Sublease shall bind and inure to the benefit of Sublessor and Sublessee and
their successors and assigns, except as otherwise expressly provided in this
Sublease.
12.06. Sublessee represents and warrants that it has the right and
authority to enter into this Sublease.
12.07. This Sublease is subject to approval of Landlord in
accordance with the terms of the Lease and shall have no effect until Landlord
shall have signed this Sublease signifying consent thereto or given such consent
by other written instrument. Sublessor agrees to promptly submit this Sublease
to Landlord, but shall be under no obligation or requirement to take any action
to obtain such consent. Sublessee agrees to submit to Landlord any information
or documentation required by Landlord in processing Sublessor's application for
consent to this Sublease.
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12.09. Sublessee shall promptly furnish Sublessor with copies of all
notices which Sublessee shall receive from Landlord and Sublessor shall promptly
furnish Sublessee with copies of all notices relating to the Subleased Premises
which Sublessor receives from Landlord.
12.10. If Sublessor is unable to give possession of the Subleased
Premises on the Commencement Date for any reason, Sublessor shall not be subject
to any liability for failure to give possession on said date and the validity of
this Sublease shall not be impaired under such circumstances, nor shall the same
be construed in any wise to extend the term, but the fixed rent and additional
rent payable hereunder shall be abated (provided Sublessee is not responsible
for the inability to obtain possession) for the period of time after the
Commencement Date that Sublessor is delayed in delivering possession of
Subleased Premises to Sublessee. The provisions of this Article are intended to
constitute "an express provision to the contrary" within the meaning of Section
223-a of the New York Real Property Law.
12.11. This Sublease and the Exhibits attached hereto contain the
entire agreement between the parties, and any agreement hereafter made shall be
ineffective to change, modify or discharge it in whole or in part unless such
agreement is in writing and signed by the party against whom enforcement of the
change, modification or discharge is sought. Sublessee shall not record this
Sublease without prior written consent of Sublessor. This Sublease shall bind
and inure to the benefit of the parties hereto and their respective successors
and, subject to this Sublease, assigns.
12.12. This Sublease is submitted to Sublessee for signature with
the understanding that it shall not bind Sublessor or Sublessee unless and until
it is duly executed by both Sublessee and Sublessor and an executed copy
delivered to Sublessee.
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12.13. At any time and from time to time within ten (10) days after
a written request from either party, the other party shall execute, acknowledge
and deliver to the requesting party a written statement certifying (i) that this
Sublease has not been modified and is in full force and effect or, if there has
been modifications of this Sublease, that this Sublease is in full force and
effect as modified, and stating such modifications, (ii) the dates to which the
fixed rent, additional rent and other charges hereunder have been paid, (iii)
that to the best of the certifying party's knowledge, no defaults exist under
this Sublease or, if any defaults do exit, specifying the nature of each such
default and (iv) as to such other matters as the requesting party may reasonably
request.
ARTICLE XIII
Guaranty
Sublessee represents to Sublessor that it is contemplated that
Sublessee will be merged into Vizacom, Inc. ("Vizacom") by year end 2001.
Promptly following the closing of the merger, Sublessee agrees to deliver to
Sublessor either a guaranty of the obligations of Sublessee under this Sublease
executed by Vizicom in the form of the Guaranty annexed hereto on Exhibit C or
an assumption by Vizacom of the obligations of Sublessee in the form of the
Assumption of Sublease annexed hereto as Exhibit D.
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IN WITNESS WHEREOF, the parties hereto have executed this Sublease
as of the day and year first above written.
SUBLESSOR:
XXXXX PERSONNEL AGENCY, INC.
By: /s/ Xxxxx Xxxxx
-------------------------------------
SUBLESSEE:
SPACE LOGIX, INC.
By: /s/ Xxxxx Xxxxx
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EXHIBIT A
[Subleased Premises]
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EXHIBIT B
[Lease]
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EXHIBIT C
Guaranty
This Guaranty is entered into on _____________________, 2001, by
Vizacom, Inc., a New York corporation, having an address at 3512 Veterans
Memorial Highway, Bohemia, New York (the "Guarantor"), in order to induce Xxxxx
Personnel Agency, Inc. (the "Sublandlord") to enter into a sublease with Space
Logix, Inc. (the "Subtenant").
Recitals
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A. The Subtenant has entered into a sublease (the "Sublease") with the
Sublandlord of certain premises (the "Subleased Premises") in the building known
as 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx. The Guarantor represents and
warrants that it has a substantial financial interest in the Subtenant.
B. The Guarantor acknowledges that the Sublandlord would not have
entered into the Sublease but for the Guarantor's execution and delivery of this
Guaranty.
Now, therefore, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which are
acknowledged, the parties, intending to be legally bound, agree as follows:
Section 1. Guaranty.
The Guarantor hereby unconditionally guarantees to the Sublandlord the
due and punctual payment and performance in full of each and all of the
Subtenant's obligations under the Sublease.
Section 2. Irrevocability.
This Guaranty shall be irrevocable until all of the Subtenant's
obligations under the Sublease are discharged in full.
Section 3. Primary and Unconditional Liability of Guarantor.
The liability of the Guarantor under this Guaranty shall be primary
and direct and not conditional or contingent upon pursuit by the Sublandlord of
any remedies it may have against the Subtenant. Without limiting the generality
of the foregoing, the Sublandlord shall not be required to make any demand on
the Subtenant, before, simultaneously with or after enforcing its rights and
remedies hereunder against the Guarantor, and any one or more successive and/or
concurrent actions may be brought against the Guarantor in the same action
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brought against the Subtenant or in separate actions, as often as the
Sublandlord may deem advisable.
Section 4. Waivers.
(a) The Guarantor agrees that the Sublandlord, in its sole and
absolute discretion, without notice to or further assent of the Guarantor and
without in any way releasing, affecting or impairing the obligations and
liabilities of the Guarantor hereunder, may deal with the original Subtenant
under the Sublease as if this Guaranty were not in effect. Without limiting the
generality of the foregoing, the Sublandlord may: (i) waive compliance with, or
any defaults under, or grant any other indulgences with respect to, the
Sublease, (ii) modify, amend, or change any provisions of the Sublease, (iii)
grant extensions or renewals of or with respect to the Sublease and/or effect
any release, compromise or settlement in connection with the Sublease, (iv) make
advances for the purpose of performing any term or covenant contained in the
Sublease with respect to which the Subtenant is in default, and (v) assign or
otherwise transfer the Sublease or this Guaranty or any interest therein or
herein.
(b) The Guarantor waives (i) presentment and demand for payment of any
obligation under the Sublease and notice of dishonor and protest of non-payment,
(ii) notice of acceptance of this Guaranty, (iii) notice of any default
hereunder or under the Sublease, (iv) demand for observance or performance of,
or enforcement of, any terms or provisions of this Guaranty or the Sublease, and
(v) all other notices and demands otherwise required by law which the Guarantor
may lawfully waive.
Section 5. Subordination: Waiver of Subrogation.
(a) If the Guarantor advances any sums to the Subtenant or if the
Subtenant otherwise becomes indebted to the Guarantor, then in the event of a
default under the Sublease, such sums and indebtedness shall be subordinate in
all respects to the amounts then or thereafter due and owing to the Sublandlord
under the sublease and the Guarantor shall receive no payments from the
Subtenant in respect of such sums of indebtedness except and to the extent the
Sublandlord gives its prior written consent.
(b) The Guarantor shall have no right of subrogation to the
Sublandlord's rights under the Sublease against the Subtenant until all
obligations of the Subtenant to the Sublandlord under the Sublease have been
discharged in full.
Section 6. Legal Proceedings.
(a) The Guarantor agrees that if this Guaranty is enforced by suit or
otherwise the Guarantor will reimburse the Sublandlord for all expenses it
incurs in that connection, including but not limited to reasonable attorneys'
fees.
(b) If the Sublandlord is required to refund any payment received from
the Subtenant as a result of a determination that such payment constituted a
preference under the
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bankruptcy laws or for any similar reason, such refund shall not release the
Guarantor and the Guarantor shall promptly pay the amount of such refund to the
Sublandlord.
(c) The Guarantor hereby irrevocably consents to the personal
jurisdiction of, and to be sued in any court in the State of New York in any
action to enforce this Guaranty.
(d) The Guarantor waives trial by jury in any action brought to
enforce this Guaranty.
Section 7. Miscellaneous.
(a) Notices. All notices required or permitted hereunder shall be in
writing and shall be deemed properly given if delivered personally or sent by
certified or registered mail, postage prepaid, return receipt requested. Such
notices shall be directed to the parties as set forth below or to such other
addresses as either party may specify by written notice to the other.
Guarantor: Vizacom, Inc.
0000 Xxxxxxxx Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxx Xxxx 00000
with a copy to: Xxxxx Xxxxxx, Esq.
Xxxxxx X'Xxxxxxx
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Sublandlord: Xxxxx Personnel Agency, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxx Xxxxx
with a copy to: Xxxx X. Xxxxxxxxx, Esq.
Xxxxxxxxxx Helpern Syracuse & Hirschtritt LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(b) Entire Agreement. This Guaranty cannot be changed or terminated
orally. This Guaranty contains the entire understanding between the parties with
respect to the subject matter. Any agreement hereafter made shall be ineffective
to change or modify this Guaranty, in whole or in apart, unless such an
agreement is in writing and signed by the party against whom enforcement of
change or modification is sought.
(c) No Waiver. No waiver by the Sublandlord of any breach of any term
or covenant contained in this Guaranty shall operate as a waiver of such term or
covenant itself, or of any subsequent breach. No delay or omission by the
Sublandlord in exercising any
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such right or remedy shall operate as a waiver. No waiver of any rights and
remedies shall be deemed made by the Sublandlord unless in writing and duly
signed by the Sublandlord. Any such written waiver shall apply only to the
particular instance involved and shall not impair the further exercise of such
right or remedy or of any other right or remedy of the Sublandlord and no single
or partial exercise of any right or remedy shall preclude other or further
exercise of such right or remedy or any other right or remedy.
(d) Separability. The invalidity or unenforceability of any provision
of this Guaranty shall not affect or impair the validity or enforceability of
any other provision.
(e) Rights and Remedies Cumulative. No right or remedy herein
conferred upon the Sublandlord is intended to be exclusive of any other right or
remedy set forth in this Guaranty or in any instrument or document delivered in
connection with or pursuant to this Guaranty, and every such right or remedy
shall be cumulative and shall be in addition to every other such right or remedy
contained herein and therein or now or hereafter existing at law or in equity or
by statute or otherwise.
(f) Captions. The captions of the various sections and subsections of
this Guaranty have been inserted only for the purposes of convenience; such
captions are not a part of this Guaranty and shall not be deemed in any manner
to modify, explain, enlarge or restrict any of the provisions of this Guaranty.
(g) Binding Effect. The Guaranty shall be binding upon the Guarantor
and its heirs, successors and assigns, and shall inure to the benefit of the
Sublandlord and its successors and assigns.
(h) Governing Law. The rights and duties of the parties under this
Guaranty shall be governed by the laws of the State of New York.
GUARANTOR
VIZACOM, INC.
By:
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NAME AND TITLE
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EXHIBIT D
Assumption of Sublease
This Assumption of Sublease is entered into on _____________________,
2001, by Vizacom, Inc., a New York corporation, having an address at 0000
Xxxxxxxx Xxxxxxxx Xxxxxxx, Xxxxxxx, Xxx Xxxx ("Vizacom"), in order to induce
Xxxxx Personnel Agency, Inc. ("Vizacom") to enter into a sublease with Space
Logix, Inc. (the "Subtenant").
Recitals
--------
A. The Subtenant has entered into a sublease (the "Sublease") with the
Sublandlord of certain premises (the "Subleased Premises") in the building known
as 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx. Vizacom represents and warrants that
it has a substantial financial interest in the Subtenant.
B. Vizacom acknowledges that the Sublandlord would not have entered
into the Sublease but for Vizacom 's execution and delivery of this Assumption
of Sublease.
Now, therefore, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which are
acknowledged, the parties, intending to be legally bound, agree that Vizacom
takes from the Subtenant all of the Subtenant's right, title and interest in and
to the Sublease and assumes all of the Subtenant's obligations under the
Sublease.
VIZACOM, INC.
By:
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NAME AND TITLE
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