Exhibit 10.37
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 _______ (the "LEASE"), whereby Tenant
rents approximately 12,000 square feet of space from Landlord (the "PREMISES")
in the building commonly known as 0 Xxxxxxxx Xxxxx, Xxxxxxxx, XX (the
"BUILDING");
WHEREAS, Tenant wished to sublease the Premises to Sublessee, and
Sublessee wishes to sublease 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 12,000 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 warehouse space. Sublessee shall be entitled to use the 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 initially shall commence on November 26, 2001 and
end on January 31, 2002 (the "TERM"). Thereafter, the term of this Sublease
shall be extended on a month-to-month basis unless either party delivers to the
other written notice of termination on or prior to the 30th day prior to the
start of the the next monthly period.
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 - January 31, 2002 $ 0.00 $ 0.00
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January 31, 2002-termination $72,000.00 $6,000.00
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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 South Brunswick, New
Jersey 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, do not violate any applicable building
code regulation or ordinance. 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 external maintenance and all utilities
(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 Sublet 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.
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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 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 or
the Sublet Premises.
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.
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18. 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.
19. 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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