EXHIBIT 10.15.1
SUBLEASE AGREEMENT
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This Sublease (the "Sublease") is made and entered into as of the __day
of March 2004 by and between EASYLINK SERVICES, INC. (formerly known as ▇▇▇▇.▇▇▇
BUSINESS MESSAGING SERVICES, INC.) with an address at ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, (Sublessor"), and HANOVERTRADE, INC. a New Jersey
Corporation with an address after commencement of this Sublease at ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ (the "Sublessee").
W I T N E S S E T H:
A. Sublessor as a Tenant, has heretofore entered into a certain lease
fully executed as of June 19, 2000 ("Prime Lease") with METRO FOUR ASSOCIATES
LIMITED PARTNERSHIP, a New Jersey Limited Partnership (the "Landlord") for
certain premises consisting of approximately 6,028 rentable square feet (the
"Premises") on the second floor within a building located at ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ (the "Building").
B. The Sublessee desires to sublease a portion of the Premises
consisting of approximately 3,400 square feet, as shown on Exhibit "A" attached
hereto and hereby made a part hereof (the "Subleased Premises"), and Sublessor
is willing to sublease the Subleased Premises to Sublessee as provided in this
Sublease.
NOW, THEREFORE, in consideration of the covenants and agreements
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are acknowledged by the Sublessor and the Sublessee, the
Sublessor and the Sublessee do hereby agree as follows:
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1. Sublease of Subleased Premises. Sublessor hereby subleases to
Sublessee and Sublessee hereby subleases from Sublessor the Subleased Premises.
Sublessee has inspected the Subleased Premises and agrees to accept the same in
broom clean condition but otherwise "as is" without any agreements,
representations, understandings or obligations on the part of Sublessor, or any
other party, to perform any alterations, repairs or improvements or services
thereto in order to prepare the Subleased Premises for Sublessee's occupancy.
2. Sublease Term.
(a) The Sublessor shall deliver possession of the Subleased
Premises and the Sublease Term shall commence on April 10, 2004 (the
"Commencement Date") and subject to the Prime Lease shall end on September 30,
2005. In the event Sublessor is unable to deliver possession of the Subleased
Premises to Sublessee by the Commencement Date due to causes beyond the control
of Sublessor, Sublessor, its agents and employees, shall not be liable or
responsible for any claims, damages or liabilities arising in connection
therewith or by reason thereof, nor shall Sublessee be excused or released from
this Sublease, because of Sublessor's inability to deliver the Subleased
Premises however in the event that possession is not delivered to Sublessee on
or prior to April 10, 2004, the payment of Basic Rent and additional rent,
pursuant to this Sublease shall be postponed for a time period commensurate with
such delay. In the event that possession is not delivered to Sublessee on or
prior to May 15, 2004, then in that event Sublessee may, until possession is
delivered, cancel this Sublease by 5 days prior written notice to Sublessor,
provided however that if the Subleased Premises are delivered prior to the end
of said 5 day period the said cancellation shall be null and void and this
Sublease shall continue in full force and effect.
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(b) Sublessee acknowledges that Subleased Premises are only
a portion of the Premises leased by Sublessor and that the Subleased Premises
shall be only as designated on Exhibit "A" and as otherwise physically
designated by Sublessor as separate from the balance of Sublessor's space, (the
"Remaining Space") but that Sublessor shall not construct a wall between the
Subleased Premises and the balance of the Sublessor's space unless and until
Sublessor secures a subtenant for such Remaining Space. Prior to the
construction of such wall by Sublessor, the Sublessee shall conduct its business
only within the Subleased Premises and shall not use the Remaining Space for any
purposes. If the Sublessee shall use any portion of the said Remaining Space for
any purpose and such use continues for 2 days after notice ("Sublessor's
Notice") from Sublessor, then in that event Sublessee shall pay to Sublessor
rent of $23.00 per square foot per annum for the entire Remaining Space from the
second day after the Sublessor's Notice of such use until vacated and shall
indemnify and hold Sublessor harmless from and against any and all loss,
expense, damages or other cost of any nature whatsoever in connection with such
use and/or occupancy. Sublessor's access to the Subleased Premises and the
Remaining Space, until construction of the said wall shall be limited to entry
in the presence of a representative of the Sublessor or without such
representative in the event of an emergency. From and after completion of the
said wall Sublessor shall control the entire Remaining Space. At such time as
Sublessor shall construct the aforesaid wall, Sublessee shall provide Sublessor
reasonable access in and to the Subleased Premises to complete such
construction. Sublessor shall be responsible for the entire cost of the
installation of such demising wall, which shall reach from the floor to the
ceiling deck and shall conform to all legal requirements. Sublessor shall take
all reasonable efforts to minimize the interference with and disruption to
Sublessee's business.
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(c) From and after the delivery of possession of the
Subleased Premises to Sublessee and the commencement of the Sublease Term the
Sublessee shall have the right, subject to the terms and conditions of this
Sublease and the Prime Lease, including but not limited to Article 12, to enter
the Subleased Premises and to install certain Tenant Changes therein.
3. Rent. The Sublessee agrees to pay Sublessor as Basic Rent for
the Subleased Premises as follows:
(a) The Basic Rent shall be $105,787.11 payable in advance
monthly installments of $6,516.66 per month beginning May 25, 2004 throughout
the Term of the Sublease except that one entire monthly payment of Basic Rent
will be due upon the execution of this Sublease. Basic Rent shall be abated from
April 10, 2004 through May 24, 2004, however Sublessee shall comply with all
other terms, conditions and requirements of this Sublease during such period.
(b) Subject to (a) above, all Basic Rent shall be payable in
advance on or before the first day of each calendar month during the term in the
same fashion as required by the Prime Lease.
(c) Sublessee shall be assessed a late payment charge of
five percent (5%) each month on a cumulative basis of any installment of Basic
Rent when paid more than five (5) days after the due date.
(d) In the event that Basic Rent payments pursuant to this
Sublease commences on a day other than the first day of a calendar month or ends
on a day other than the last day of a calendar month, the monthly rent for such
month shall be prorated. Except as specifically provided in the Prime Lease
and/or this Sublease, Sublessee's covenant to pay Basic
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Rent is independent of every other covenant set forth in this Sublease and the
monthly Basic Rent will be paid without any setoff, recoupment, deduction or
abatement whatsoever.
4. Use.
The Sublessee shall use and occupy the Subleased Premises in
conformance with the terms and conditions of the Prime Lease, and for no other
purpose.
5. Incorporation of Prime Lease Provisions.
(a) Except as may be inconsistent with other terms of this
Sublease (which terms shall control in the event of a conflict), it is hereby
understood and agreed between Sublessor and Sublessee that all terms and
conditions of the Prime Lease between the Sublessor and the Landlord and all
modifications of the same, which Sublessee acknowledges that Sublessee has
reviewed and which are incorporated by reference in whole into this Sublease and
attached hereto as Exhibit "B". It is further understood that Sublessee's rights
shall at all times be subordinate and subject to the provisions of the Prime
Lease. The foregoing notwithstanding, it is understood that Sublessor shall have
no obligation to provide (and Sublessee shall have no right to receive) any of
the services, statements, reporting requirements, notices or any other
entitlements afforded Sublessor in the Prime Lease, but such services,
statements, reporting requirements, notices or other entitlements may be fully
provided by the Landlord or by its transferees or assigns if arranged for by
Sublessee and agreed upon by Landlord. Sublessor agrees that Sublessor shall use
reasonable efforts to secure performance by Landlord of the Landlord obligations
under the Prime Lease as the same affect the Subleased Premises. The sole
responsibility of Sublessor to Sublessee shall be its obligations as set forth
in this Sublease. Further, the obligations of Tenant to Landlord as set forth in
the Prime Lease shall be deemed
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obligations of Sublessee to Sublessor with respect to the Subleased Premises,
including a pro rata amount of any charge assessed to Sublessor by Landlord as
above set forth.
(b) Notwithstanding the foregoing this Sublease shall not
include the benefit or the obligations of the following clauses in the Prime
Lease, all of which shall not be included herein and not be applicable hereto:
LEASE
Sections 1.04 (a) and 3.01
Articles 4,5, 8, 30 and 35
Exhibit C
(c) In the event that the Prime Lease shall be cancelled or
terminated for any reason, then subject to the terms hereof, this Sublease shall
cancel and/or terminate simultaneously therewith. Sublessor agrees that
Sublessor shall not perform any acts that would constitute a breach of the terms
and conditions of the Prime Lease.
6. Contingency. This Sublease is contingent upon Sublessor and
Sublessee obtaining Landlord's written consent to this Sublease on or prior to
the Commencement Date hereof and the execution by Landlord of the Consent to
Sublease in such form as required by the Landlord.
If the above condition is not satisfied on or prior to the
Commencement Date, either party may terminate this Sublease by written notice to
the other party delivered on or prior to 5:00 p.m. on the Commencement Date and
neither party shall have any remaining liabilities or obligations with respect
to this Sublease. If such notice of termination is not delivered as above
provided than this Sublease shall continue in full force and effect any neither
party hereto shall have any right to cancel pursuant to this Paragraph 6.
7. Notices. All notices required or permitted to be given
hereunder shall be in writing and shall be effective either upon personal
delivery (against written receipt),
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one (1) day after delivery to a nationally-recognized overnight courier (e.g.
Federal Express) for next-day delivery or three (3) days after deposit in the
United States mail, by certified mail, return receipt requested, addressed to
the parties as follows, or at such address as a party may hereafter designate by
notice to the others.
If to Sublessor: EASY LINK SERVICES, INC.
(formerly known as ▇▇▇▇.▇▇▇ Business
Messaging Services, Inc.)
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▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President, Finance
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, LLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
P.O. Box 790
Lyndhurst, New Jersey 07071-0790
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
If to a Sublessee: HANOVERTRADE, INC.
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▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
with a copy to: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP
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▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Sublessor and Sublessee each hereby covenant and agree to promptly
deliver to the other party copies of any and all notices or other correspondence
received by it from Landlord that might affect Sublessor and Sublessee in any
manner and further agrees, notwithstanding this Section 7 hereof to the
contrary, to use good faith efforts to so deliver same in the manner most
appropriate to insure that Sublessor will be able to respond to any of such
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notices or other correspondence from Landlord within any time periods set forth
in the Prime Lease.
8. Insurance. Prior to taking possession of the Subleased
Premises, Sublessee shall deliver to Sublessor, Sublessee's insurance
certificate(s) as required of Tenant under the Prime Lease.
9. Brokerage. Sublessor hereby represents and warrants to
Sublessee that Sublessor has not dealt with any broker, finder or other agent in
respect to the transactions hereby contemplated except for GVA ▇▇▇▇▇▇▇▇ for
Sublessor and Newmark Real Estate of New Jersey for Sublessee (collectively the
"Broker") and Sublessor hereby agrees to indemnify Sublessee for any claim for
commission, finder's fee, or like charge asserted by any person, firm or
corporation other than Broker claiming to have been engaged by Sublessor.
Sublessee hereby represents and warrant to Sublessor that Sublessee has not
dealt with any broker or finder with respect to the transactions hereby
contemplated, except Broker, and Sublessee hereby agrees to indemnify Sublessor
for any claim for brokerage commission or finder's fee asserted by any person,
firm or corporation except Broker, claiming to have been engaged by Sublessee.
10. Compliance with Laws. Sublessee shall comply with the
requirements of all applicable laws, rules and regulations to the extent they
apply to Sublessee's use and occupancy of the Subleased Premises.
11. Indemnification.
Sublessee agrees to indemnify, defend and save harmless Sublessor
from and against any and all claims arising from occupancy, conduct, operation
or use of the Subleased Premises by Sublessee or arising from any breach or
uncured default on the part of Sublessee in the performance of any covenant or
agreement on the part of Sublessee to be performed pursuant
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to the terms of this Sublease or which violates the terms of the Prime Lease, or
under the provisions of any law, ordinance or regulation of any federal, state,
municipal or other authority, or arising from any act, neglect or negligence of
Sublessee, or its agents, contractors, servants, employees, or sublessees, or
arising from any accident, injury or damage whatsoever caused to any person,
firm or corporation, occurring during the term of this Sublease, and from and
against all costs, expenses and liabilities incurred in connection with any such
claim or action or proceeding brought thereon (including, without limitation,
the reasonable fees of attorneys, investigators and experts); and if any action
or proceeding be brought against Sublessor by reason of any such claim,
Sublessee upon notice from Sublessor shall, at Sublessee's sole cost and
expense, resist or defend such action or proceeding or cause it to be resisted
or defended.
12. Quiet Possession. As of the commencement date hereof,
Sublessor grants Sublessee, subject to the Prime Lease, quiet possession of the
Subleased Premises, which shall continue during the term of this Sublease.
13. Attorney's Fees. If either party commences suit as a result of
a breach of this Sublease, the non-prevailing party shall reimburse the other
for all reasonable costs and expenses (including attorney's and accountant's
fee) in connection with such suit.
14. Binding Effect. This Sublease shall inure to the benefit of,
and shall be binding upon, the parties hereto and their respective successors
and assigns.
15. Amendments in Writing. This Sublease may not be modified
except in writing signed by all parties hereto. This constitutes the entire
agreement between the parties; any additional amendment or modification of the
terms thereto shall not be effective unless made in writing and attached to the
original hereof, executed by all parties. This Agreement shall be binding upon
the successors, assigns and heirs of the respective parties.
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16. Further Assurances. Each party hereby agrees that upon the
reasonable request of the other, it will (from time to time) execute and deliver
to the other party all such instruments and documents of further assurance or
otherwise, and will do any and all acts and things reasonably required to carry
out its obligations hereunder and to consummate the transactions contemplated
hereby and the purpose and intent hereof.
17. Property. At the expiration of this Sublease or earlier
termination Sublessee may remove its furniture, fixtures and equipment, repair
any damage caused by such removal and make any and all repairs and/or
restoration to the Subleased Premises as required by this Sublease and the Prime
Lease and return the Subleased Premises to Sublessor and Landlord in the
condition as set forth in the Prime Lease.
18. Governing Law. This Sublease shall be governed by and
construed in accordance with the laws of the State of New Jersey.
19. Default By Sublessee. (a) If Sublessee shall be in default in
fulfilling any of the covenants of this Sublease other than the covenants for
the payment of Basic Rent, or if the Subleased Premises become vacant or
deserted, then Sublessor upon ten (10) days' written notice to Sublessee of
Sublessor's intention to end the term of this Sublease may by said notice cancel
this Sublease and thereupon, at the expiration of said ten (10) days (if said
default continues to exist), the term under this Sublease shall expire as fully
and completely as if on that day herein definitely fixed for the expiration of
the term, and Sublessee will then quit and surrender the Subleased Premises to
Sublessor, but Sublessee shall remain liable as hereinafter provided.
(b) If the notice provided for in (a) above shall have been
given, and the term shall expire as aforesaid; or (i) if Sublessee shall make
default in the payment of the
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Basic Rent reserved herein or in making any other payment herein provided; or
(ii) if any execution or attachment shall be issued against Sublessee or any of
Sublessee's property whereupon the Subleased Premises shall be taken or occupied
or attempted to be taken or occupied by someone other than Sublessee or (iii) if
Sublessee shall default with respect to any other Prime Lease provision between
Landlord and Sublessor, except as set forth in Section 5 [c] above, which shall
remain uncured beyond the applicable cure period, or (iv) if Sublessee shall do
anything which would otherwise constitute a default under the Prime Lease if
made by Sublessor which shall remain uncured beyond the applicable cure period,
(as to any of the foregoing events of which fact Sublessor shall be the sole
judge), then and if any of such events Sublessor may, without notice, exercise
the same rights as Landlord has against Sublessor in the Prime Lease as if the
default by Sublessor in its obligations to Sublessor had been a default by
Sublessor in its obligations to Landlord.
20. No Assignment or Subletting. Sublessee shall have no right to
Assign this Agreement, Sublet the Subleased Premises (or any portion thereof) or
permit the occupancy of the Subleased Premises by any person or entity without
first having secured permission from Sublessor, which shall not be unreasonably
withheld or delayed, and from Landlord as required by the terms and conditions
of the Prime Lease.
21. Parking. Subject to such limits and costs therein set forth,
Sublessee shall be entitled to a proportionate shall of such non exclusive
parking to which Tenant shall have been entitled pursuant to the Prime Lease.
22. Security Deposit. Upon execution of the Sublease, Sublessee
shall pay to Sublessor $0.00 as a security deposit. Upon termination of the
Sublease, payment of all charges due and return of the Subleased Premises to
Sublessor in accordance with the terms of this
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Sublease and the Prime lease, Sublessor shall return to Sublessee, that portion
of the Security Deposit which has not been applied as herein permitted. The
Security Deposit shall be commingled with Sublessor's general funds and not
placed in any specific account. Provided Sublessee is not then in default in the
payment of Rent, or any other charges due Sublessor, and further provided the
Subleased Premises are delivered in the condition required by this Sublease and
the Prime Lease, said security deposit shall be returned to Sublessee within
thirty (30) days after Sublease expiration. If Sublessee is in default at any
time or if the Subleased Premises are not left as above required, then after
notice to Sublessee the security deposit shall be applied to the extent
available on account of sums due Sublessor or Landlord or the cost of repairing
damages to or restoring the Subleased Premises.
23. Electricity. Landlord shall furnish electricity to the
Subleased Premises as provided in the Prime Lease. Subject to change set forth
in the Prime Lease the initial payment by Sublessee to Sublessor for electricity
shall be $1.50 per square foot per annum (i.e. $5,100.00) payable in a monthly
amount of $ 412.00 together with the Basic Rent payable hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Sublease
as of the date first above written.
SUBLESSOR: EASYLINK SERVICES, INC.
__________________________________________
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President, Finance
SUBLESSEE: HANOVERTRADE, INC.
__________________________________________
By: ______________________________________
Title:____________________________________
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EXHIBIT "A"
SUBLEASE PREMISES
EXHIBIT "B"
PRIME LEASE