SUBLEASE
This Sublease is entered into this _____ day of September, 1998 by and
between Applied Intelligence Group, Inc., 00000 Xxxxxx Xxxx, Xxxxxx, Xxxxxxxx
00000, an Oklahoma corporation ("Seller") and The Netplex Group, Inc., 0000
Xxxxxxxxxx Xxxxx, Xxxxx Xxxxx, XxXxxx, Xxxxxxxx 00000, a New York corporation
("Netplex").
RECITALS
Whereas, Seller is selling to Netplex the assets of its information
technology services business pursuant to an Asset Acquisition Agreement executed
between the parties on August 31, 1998; and
Whereas Seller is lessee of a building and land ("Leased Premises")
pursuant to a lease between Oklahoma Christian Investment Corporation ("OCIC")
entered into October 3, 1994, the Amendment No. 1 thereto dated January 26,
1995, and the Amendment No. 2 dated June 2, 1995, a copy of which is attached
hereto as Exhibit A (collectively hereinafter the "Main Lease") and incorporated
herein for reference purposes; and
Whereas, Seller desires to sublease to Netplex and Netplex desires to
sublet from Seller a portion of said Leased Premises.
NOW, THEREFORE, in consideration of the covenants and agreements herein
contained the parties agree as follows:
ARTICLE I - Subleased Premises and Term
1.1 Subleased Premises
Seller hereby subleases to Netplex and Netplex subleases from Seller
that portion of the Leased Premises identified on Exhibit B hereto identified as
AIG/Netplex ("Subleased Premises") for use by Netplex as offices, subject and
subordinate, however, in all respects to all of the terms, covenants, conditions
and provisions of the Main Lease. Seller also grants the right to Netplex the
right to jointly use during the term of this Sublease with Seller the Common
Area identified on said Exhibit B. The parties agree that at execution of this
Sublease, the Subleased Premises represent sixty-one percent (61%) of the
Leasable Area (as hereinafter defined) of the Leased Premises, which percentage
is hereinafter referred to as "Netplex's Proportionate Share". For purposes of
this Sublease, the term "Leasable Area" shall be defined as the sum of the
AIG/Netplex Space shown on Exhibit B hereto plus the total square footage of The
viaLink Company Space shown on said Exhibit B as the same may be amended from
time to time. For purposes of determining the Leasable Space, the Common Areas
space shown on Exhibit B shall not be considered in the calculation. The Netplex
Proportionate Share of the Leasable Area at any given time during the Term of
this Sublease is equal to the quotient of the then current total square footage
of the AIG/Netplex space shown on Exhibit B hereto divided by the Leasable Area.
0.2 Netplex Obligations
Netplex agrees to perform all obligations required to be performed by
Seller as "Tenant" under the Main Lease with respect to the area comprising the
Subleased Premises except to the extent expressly modified by this Sublease and
with the exception of those provisions of the Main Lease set forth in Section
1.3 concerning the term, and Sections 2.1 through 2.6 of Article II concerning
the rent, additional rent and security deposit. Netplex shall not perform any
act which would cause a default by Seller under the Main Lease.
1.3 Term
Subject to earlier termination or expiration pursuant to the terms or
conditions of this Sublease or as a matter of law, the Term of this Sublease
shall commence on the Closing of the Asset Acquisition Agreement as such term is
defined therein, and shall end one day prior to the expiration of the present
term of the Main Lease, or, if this Sublease is extended by the mutual agreement
of Seller and Netplex, then one day prior to the date of expiration of any such
extended term. Notwithstanding anything to the contrary herein, in the event
that Closing (as defined in the Asset Acquisition Agreement) does not occur,
then this Sublease shall be null and void, and all payments made by Netplex to
Seller hereunder shall be returned to Netplex. In the event that the Main Lease
is terminated for any reason, this Sublease shall be automatically terminated.
ARTICLE II - Rental
2.1 Rental
Netplex covenants and agrees to pay, as annual minimum rent for the
Subleased Premises, its then current Proportionate Share of the rent payable
under Article 2.1 of the Main Lease as the same is adjusted from time to time
pursuant to the terms thereof. Netplex agrees to pay to Seller said rent, in
legal tender, to Seller at the address indicated above or such other address as
may be authorized by notice from Seller to Netplex, in equal monthly
installments in advance on the first day of each calendar month during the term
hereof. Rent for any partial month hereunder shall be pro-rated on a per diem
basis and paid on the first day of the following calendar month. Moreover, if
Netplex exercises its rights to expand the size of the Subleased Premises, the
Proportionate Share shall be adjusted to reflect said expansion, and the
payments due pursuant to this Section shall be adjusted as of the date such
expansion becomes effective. The parties shall execute such documents as are
reasonably necessary to reflect the expansion of Netplex's space.
2.2 Additional Rent
Netplex shall pay its then current Proportionate Share of increases in
ad valorem taxes, insurance premiums and utility costs payable by Tenant under
the Main Lease pursuant to Articles 2.2, 2.3 and 2.4 of the Main Lease and the
Landlord Funded Tenant Improvements under said Amendment No. 2 to the Main
Lease.
1.3 The provisions of Section 7.2 of the Main Lease shall apply equally to
payments due by Netplex to Seller pursuant to the terms of this
Sublease.
1.4 Upon the written request of OCIC, Netplex will pay the rent and
additional rent due under this sublease directly to OCIC.
ARTICLE III - OCIC's Approval
3.1 Sublease Contingent on Approval
This Sublease is not subject to and contingent upon the approval of
OCIC; provided however, Seller agrees to use its best efforts to obtain OCIC's
approval of this Sublease and Netplex agrees to cooperate fully with all
reasonable requests of Seller and OCIC for information in connection with
obtaining said approval.
ARTICLE IV - Seller's Obligations
4.1 Main Lease
4.1.1 Seller covenants and agrees to perform in a timely manner all
obligations on its part to be performed under the Main Lease.
4.1.2 Seller agrees to take no action to amend or modify the Main Lease
without the consent of Netplex, which consent shall not be unreasonably
withheld.
3.0.3 Seller agrees to notify Netplex promptly in writing of any
default on Seller's part or OCIC's part and to deliver
promptly to Netplex any and all notices of default received by
Seller from OCIC or notices of default delivered by Seller to
OCIC. In the event of a default by Seller or the receipt by
Seller of a notice of default from OCIC, Seller agrees that
Netplex may (i) make any payments required of Netplex under
this Sublease directly to OCIC and to offset such payments
against any rent due hereunder. In the event of a default by
OCIC in the performance of its obligations under the Main
Lease, Seller agrees, at its sole cost and expense to take
such steps as are necessary to compel performance including,
but not limited to, litigation against OCIC. In the event that
Seller fails to pursue such claim on a timely basis, Seller
agrees that Netplex may pursue such claim in its own name or
in the name of Seller against OCIC provided that such claim
shall be prosecuted at Seller's sole cost and expense, and
that Seller shall indemnify and hold Netplex harmless from any
and all costs, losses and expenses (including reasonable
attorneys' fees and expenses) which may arise out of or relate
to such claim.
3.0.4 In the event that Seller's default under the Main Lease arises
out of or is as a result of the breach of this Sublease by
Netplex, then and in that event, Netplex shall defend,
indemnify and hold Seller harmless from and against any claims
or losses incurred by Seller as a result of any such breach of
this Sublease by Netplex.
4.2 Delivery, Possession, Quiet Enjoyment
Seller covenants and agrees to deliver the Subleased Premises to
Netplex AS IS no later than the commencement of the Term of this Sublease.
Subject to the terms, covenants and conditions of this Sublease, including
without limitation the following Subsections, Seller agrees
that so long as Netplex is not in default in the performance of any covenant of
this Sublease, Netplex shall quietly enjoy the Subleased Premises, the joint use
of the common areas and parking areas in accordance with this Sublease.
3.1.1 During the Term of this Sublease, Netplex shall not remodel or
install any telephone lines or computer cables on the
Subleased Premises or mount any external communications
devices on the roof of the Subleased Premises without the
prior written, consent of Seller. Moreover, in the event that
Seller gives such consent, Netplex's right to remodel the
Subleased Premises shall be subject to the terms and
conditions of Section 4.3 of the Main Lease.
3.1.2 During the term of this Sublease, Netplex shall not have the
right to assign this Sublease or to sublease any portion of
the Subleased Premises without the prior written consent of
Seller, which consent shall not be unreasonably withheld. Any
permission granted Netplex by Seller to sublease or to assign
this Sublease shall not relieve Netplex from liability for the
payment of rental or from the performance of any of the
covenants of this Sublease.
3.1.3 Netplex shall return the Subleased Premises at the expiration
or earlier termination of the Term hereof to Seller in the
same condition that Seller is required to return its Leased
Premises to OCIC pursuant to Section 4.7 of the Main Lease and
subject to the same exceptions contained therein.
3.1.4 Netplex shall abide by the terms of Section 4.6 as it related
to the Subleased Premises.
3.1.5 Netplex shall place all trash and refuse only in containers
provided for such, and Seller may clean up any trash or reuse
not so disposed of and charge the cot thereof to Netplex.
3.1.6 Notwithstanding anything to the contrary in this Sublease,
Netplex acknowledges that its right to use the Subleased
Premises are subject to the provisions of Section 4.2.1 and ,
4.2.2 of the Main Lease.
3.1.7 Netplex agrees to comply with the rules and regulations
promulgated from time to time by OCIC which affect the
Subleased Premises.
3.1.8 During the Term of this Sublease, Netplex shall carry, at
Netplex's expense, fire, extended coverage, vandalism and
malicious mischief, all risk with replacement cost endorsement
insurance for its furniture, trade fixtures, equipment,
Leasehold improvements, interior and exterior signs, interior
or exterior glass, and inventory. Netplex shall carry
comprehensive general liability insurance on the Subleased
Premises, with limits of not less that $1,000,000 combined
single limit for bodily injury and property damage, naming
OCIC and Seller as additional named insureds and providing
certificates of insurance reflecting such. Said certificates
shall be furnished to OCIC and Seller prior to the beginning
of the Term of this Sublease and at least thirty days prior to
the expiration of the policy of insurance evidenced thereby.
All such policies shall provide
for thirty days notice to OCIC and Seller prior to
cancellations and be so reflected on the certificate(s) of
insurance. The parties hereto agree that each party hereby
waives and releases and all claims, demands against the other
for damage to loss of any part of the Subleased Premises or
any of the contents and leasehold improvements therein
belonging to Netplex arising from perils insured against
ordinarily under standard fire and extended coverage,
vandalism and malicious mischief, all risk, insurance policies
issued in the state of Oklahoma whether such damage or loss is
occasioned by the negligence of the parties hereto, their
agents, servants and employees, or otherwise, and that all of
the policies of insurance written to insure buildings,
improvement and contents shall contain a proper provision, by
endorsements or otherwise, whereby the insurance carriers
issuing her same shall acknowledge the insured has so waived
and released its right of recovery against Seller and/or OCIC
hereto, and shall waive the right of subrogation which such
carrier might otherwise have had against Seller and/or OCIC,
all without impairment or invalidation of such insurance.
Seller shall hold Netplex harmless against all claims,
judgments and demands of any person or persons whomsoever on
account of injuries or accidents occurring in, or about the
Subleased Premises resulting from willful or negligent acts or
omissions of Seller, Seller's employees, agents or
representatives, or the breach of any obligation of the Seller
as set out in this Sublease. Netplex shall hold Seller
harmless against all claims, judgments and demand of any
person or persons, whomsoever on account of any injuries or
accidents occurring on the Subleased Premised as a result of
willful or negligent acts or omissions of Netplex, Netplex's
employees, agents, or representatives, or the breach of any
obligation of Netplex as set out in this Sublease.
3.1.9 Netplex shall be bound by the terms and conditions of Sections
6.1, 6.2, and 6.7 of the Main Lease. Section 6.2.1 of the Main
Lease shall not be applicable to Netplex.
3.1.6 Notwithstanding anything to the contrary in this Sublease,
Netplex takes the Sublease subject to the terms and conditions
of Sections 6.5 and 6.6 of the Main Lease.
3.1.7 The term of this Sublease is subject to the provisions of
Section 6.3 of the Main Lease.
3.1.8 Netplex takes this Sublease subject to the terms of Section
7.9 of the Main Lease.
3.1.9 Netplex's Default. the following events will be deemed to be
an event(s) of default by Netplex under this Sublease:
3.1.8.1 In the event Netplex should default in payment of
rental, Seller shall give Netplex written notice of
such default by certified Mail and Netplex shall have
Ten (10) days from the date of receiving such notice
to correct the same. Should Netplex fail to correct
such default in said period, Seller may, in addition
to all other
rights available to Seller under the laws of the
State of Oklahoma, at its option, terminate this
Sublease.
3.1.8.2 Subject to the terms and conditions of Subsection
4.2.9.2.1 of this Sublease, in the event that Netplex
should fail to comply with any other provision of
this Sublease, Seller shall give Netplex written
notice of such default by certified mail. Such notice
shall state with specificity the type and nature of
such default. Should such default continue to exist
at the expiration of Sixty (60) days after receipt of
such notice, or should Netplex not be proceeding with
due diligence to correct the same, in the case of a
default which with due diligence could not be cured
within Sixty (60) days after receipt of such notice,
Seller shall then give Netplex second written notice
by certified mail, and five (5) days from the receipt
of such second notice, Seller may, in addition to all
other rights and remedies available to Seller under
the laws of the State of Oklahoma, at its option,
terminate this Sublease if such default is not cured
with such five days. Should Netplex correct its
default with the time provided, then Netplex's rights
hereunder shall be re-established as though said
default had not occurred.
3.1.8.2.1 Notwithstanding anything to the contrary
in Subsection 4.2.9.2 of this Sublease, if
Seller receives a notice of default from
OCIC under the Main Lease and such default
arises out of a default by Netplex under
this Sublease, then and in that event,
Netplex shall only have the time to cure
such default that Seller has to cure the
same under the terms and conditions of the
Main Lease.
4.3 Exclusive Expansion Option
Seller covenants and agrees to notify Netplex on or before the date
which is twelve (12) months prior to the end of the sixtieth (60th) month of the
Term of the Main Lease, whether Seller intends to exercise its Exclusive
Expansion Option, as that term is defined in the Main Lease. If Seller notifies
Netplex that it does not intend to exercise said Exclusive Expansion Option,
Seller shall have no objection to Netplex negotiating with OCIC regarding the
area that would have been affected by the expansion option.
4.4 Assignment and Subletting, Right of First Refusal, Option to Sublease
Additional Space
4.4.1 Seller shall not sublet any portion of the Leased Premises not
subleased to Netplex pursuant to this Sublease, nor shall it
assign any lease for the Expansion Area, as that term is
defined in the Main Lease, nor shall it sublet such Expansion
Area, unless and until (i) it offers in writing such
assignment or sublease to Netplex first on the same terms and
conditions offered to or proposed by any third
party and (ii) Netplex fails or refuses to accept said offer
within thirty (30) days of receipt of Seller's written offer.
3.3.2 Netplex shall not (i) assign this Sublease, (ii) permit this
Sublease to be assigned by operation of law or otherwise,
(iii) further sublease all or any part of the Subleased
Premises, or (iv) mortgage, hypothecate or otherwise encumber
in any respect, Netplex's interest in this Sublease, without
the prior written consent of Seller in each instance, which
Seller may grant or withhold, provided such withholding shall
be reasonable, and, in any such event, any such proposed
assignment and/or further sublease of all or any part of the
Subleased Premises shall be expressly subject to, and shall be
in accordance with, the provisions of the Main Lease and this
Sublease. Netplex covenants and agrees that, notwithstanding
any permitted assignment or further sublease, Netplex shall
remain fully liable to Seller for the payment of the annual
fixed rent and additional rental hereunder and for all other
obligations of this Sublease on the part of Netplex to be
performed or observed. The sums payable hereunder shall be
paid to Seller as and when payable by the assignee or further
subtenant to Netplex.
3.3.3 For the Term of this Sublease, Netplex, subject to the terms
of Section 4.4.4 of this Sublease, shall have the option to
sublease such portion of the Leased Premises not already
subleased to Netplex pursuant to this Sublease to the extent
that viaLink or its other subleasees or assigns are not using
or have use for The viaLink Company space shown on the then
current Exhibit B.
3.3.4 Beginning January 1, 2000 and for the duration of this
Sublease, and notwithstanding anything to the contrary herein,
if Netplex (i) desires to lease more than seventy percent
(70%) of the Leasable Space and (ii) if such amount of the
Leasable Space desired by Netplex is more than the space
determined by Seller at such time, in its sole discretion, to
be not needed for the operations of Seller, and (iii) if
Netplex and OCIC have agreed to a new lease between them
concerning the leased premises wherein, inter alia, Seller is
released from its obligations under the Main Lease, then
Netplex must elect to lease all of the Leased Premises.
Further, in order to make such election, Netplex on or after
January 1, 2000 shall give Seller nine months written notice
of such election. The effective of such election will be nine
months after receipt of such notice by Seller. If Netplex
makes the election in this Section 4.4.4 but is unable to
satisfy precondition (iii) above within sixty (60) days after
giving notice to Seller as required in this Section 4.4.4,
Seller will nonetheless sublease all of its remaining space to
Netplex on the terms and conditions of this sublease.
Furthermore, if Netplex is unable to satisfy condition (iii)
above and Netplex elects to take all of Seller's remaining
space, Netplex shall reimburse Seller for the reasonable costs
incurred by Seller for the following: (i) in moving its
office, workstation and conference room, (ii) its in moving
office and workstation computer hardware and fixtures, (iii)
in de-installing, moving and reinstalling data centers and
computer labs, (iv) in purchasing and installing a similar LAN
environment using voice/data wiring of a AT&T Systimax
Category 5 cable or better, (v) in installing and relocating
voice, data and ISP carrier services, (vi) any costs incurred
for early termination of services with support vendors, (vii)
in purchasing and installing a security system comparable to
the existing system, (viii) in de-installing, moving, and
reinstalling phone switches, (ix) any costs associated with
the moving or replacement of any future installed hardware,
equipment, or services as mutually agreed to by both parties,
and (x) the buildout costs incurred by Seller in
reestablishing an establishment comparable to the then
existing space occupied by Seller. Netplex shall pay Seller
for such costs within thirty (30) days after an invoice(s) is
received for the same. Netplex shall not have any duty to
reimburse Seller for such costs and expenses if Netplex
satisfies precondition (iii) above.
ARTICLE V - General Provisions
5.1 Entire Agreement
Seller and Netplex agree that this Sublease contains and is the entire
agreement between the parties hereto, and takes the place of any prior
negotiations regarding the subject matter or any portion of the terms hereof,
and that no alterations, changes or modifications of this Sublease shall be
effective unless made in writing and exercised on behalf of each of them by
their appropriate corporate officers and the corporate seal of each party
affixed thereto.
5.2 Invalidity
Should any clause or provision of this Lease be invalid or void for any
reason, such invalid or void clause or provision shall not affect the whole of
this instrument, but the balance of the provisions hereof shall remain in full
force and effect.
5.3 Notices
Any notice, statement, demand or other communication required or
permitted to be given, rendered or made by either party to the other, pursuant
to this Sublease or pursuant to any applicable law or requirement of public
authority, shall be in writing (whether or not so stated elsewhere in this
Sublease) and shall be deemed to have been properly given, rendered or made, if
sent by registered or certified mail, return receipt requested, addressed as
follows:
if to Seller:
Applied Intelligence Group, Inc.
00000 Xxxxxx Xxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxx
with copies to:
Xxxxxxx X. Xxxxxx, Esq.
Xxxxxxx X. Xxxxxx Associates, P.C.
000 Xxxxxx X. Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
if to Netplex:
The Netplex Group, Inc.
0000 Xxxxxxxxxx Xxxxx
XxXxxx, XX 00000
Attention: Xxxx Xxxxx, President
with copies to:
Xxxxxx Price Xxxxxxx Kammholz & Day
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Xx., Esq.
5.4 Binding Effect
This agreement shall be binding upon and inure to the benefit of the
parties hereto, their successors and (subject to the provisions hereof) their
permitted assigns.
5.5 Time Is Of The Essence.
Time is of the essence as to each and every condition, obligations,
agreement and covenant in this Sublease.
5.6 Miscellaneous
5.6.1 Netplex makes the same representation and warranty to
Seller as Seller made to OCIC in Section 7.5 of the Main Lease.
Said Section 7.5 is incorporated by reference into this
Sublease. 5.6.2 Netplex and Seller make the same covenants and
agreements as to this Sublease that OCIC and Seller made in
Section 7.4 of the Main Lease. Said Section 7.4 of the Main
Lease is incorporated herein by reference. 5.6.3 This Sublease
shall not be filed of record. Netplex may file a Memorandum of
this Sublease of record in substantially the same form as the
Memorandum of Lease attached to the Main Lease as Exhibit G.
SIGNATURE PAGE FOLLOWS
SUBLEASE
SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have executed this Sublease as
of the day and year first above written.
"Seller":
APPLIED INTELLIGENCE GROUP, INC.
By: _________________________________
Its: ________________________________
"Netplex":
THE NETPLEX GROUP, INC.
By: _________________________________
Its: ________________________________