Exhibit 10.1
SPACE AND SERVICE AGREEMENT
This Agreement ("Agreement") is made as of the 2nd day of October 2001 by
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and between PowerSPACE and Licensee.
1. LICENSE AND OFFICE. PowerSPACE shall provide to Licensee for and in
consideration of the agreements and fee(s) set forth herein, a license to use
the Office, certain furniture and equipment and certain common areas ("Common
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Areas") in common with PowerSPACE and other licensees, all as more particularly
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set forth herein. Licensee shall be provided with the exclusive use of the
Office 24 hours a day, 7 days a week, subject to Landlord's and PowerSPACE's
reasonable rules for security in the Building and the premises leased by
Landlord to PowerSPACE in the Building (the "Executive Office Center").
"Landlord" shall mean, the fee owner of the Building, or if there shall exist a
superior lease to which PowerSPACE shall be subject, the tenant under such
superior lease. Subject to the provisions of this Agreement and reasonable rules
for security in the Building and the Executive Office Center, Licensee shall be
provided with reasonable non-exclusive use of Common Area facilities at all
times, except that conference and training rooms are available during Business
Hours only as provided herein, unless otherwise agreed to by PowerSPACE.
"Business Hours" shall mean during Business Days the normal business hours
established by Landlord for the furnishing of heating and air-conditioning.
"Business Days" shall mean all days, excluding Saturdays, Sundays and all days
observed by either the State of New York or the Federal Government and by the
labor unions servicing the Building as legal holidays. Licensee shall use the
Office and Common Areas in accordance with all applicable laws.
If, for any reason whatsoever, PowerSPACE is unable to deliver possession
of the Office or an alternative office (substantially similar in area and
configuration to the Office) in the Executive Office Center on the Commencement
Date, and such failure continues for 10 Business Days after the Commencement
Date, Licensee upon written notice to PowerSPACE, delivered within 3 days after
the expiration of such 10 Business Day period, as its sole remedy for such
failure, may cancel and terminate this Agreement in which case any prior
payments shall be fully refunded. If Licensee shall not cancel this Agreement as
aforesaid, the Commencement Date shall be postponed until the date the Office or
an alternative office is delivered to Licensee. No such failure to give
possession of the Office (or an alternative office) on the Commencement Date
shall in any wise affect the validity of this Agreement or the obligations of
Licensee hereunder or give rise to any claim for damages by Licensee, nor shall
the same be construed in any wise to change the Expiration Date. No such failure
to deliver possession shall subject PowerSPACE to any liability whatsoever.
PowerSPACE shall have the right, upon 5 days written notice, to relocate
Licensee to another office in the Executive Office Center, and to substitute
such other office for the Office, provided such other office is substantially
similar in area and configuration to the Office and provided further that
Licensee shall incur no increase in the Monthly Base Fee as a result thereof.
PowerSPACE agrees to move Licensee to its new location at PowerSPACE's expense.
2. SERVICES. PowerSPACE agrees, in consideration of the Monthly Base Fee,
to provide the Basic Services to Licensee and the other items and services
listed in the Summary of Terms under the heading Additional Fixed Monthly
Charges. "Basic Services" shall mean standard office cleaning and maintenance
services, electricity, utilities, a listing of Licensee's name in the Building's
lobby directory, furnished Office, furnished reception area, professional
receptionist, use of furnished conference rooms (up to a maximum of number of
hours per month as set forth in the Summary of Terms annexed hereto), pantry
facilities, including coffee and water, receipt of mail and packages,
distribution and delivery of incoming mail to each Office, and heating and
air-conditioning to the Office for normal office use during Business Hours.
During hours other than Business Hours, upon Licensee's prior notice, given in
advance as reasonably required by PowerSPACE, overtime heating or
air-conditioning services shall be provided, and Licensee agrees to reimburse
PowerSPACE an amount equal to the Landlord's then established charges for such
overtime services. However, if more than one licensee requests such overtime
service for the same periods, PowerSPACE agrees to pro-rate such charges among
the licensees then requesting such overtime service. Use of conference rooms
shall be subject to reservations on a first come, first served basis. If any
reservation is made and not canceled upon at least 24 hours prior written
notice, Licensee shall be deemed to have used such conference room for the time
reserved and that time shall be charged against the hours which Licensee is
allocated as part of the Base Monthly Fee. If Licensee's total number of hours
of use or deemed use of conference rooms for any month exceeds such monthly
allowance, then Licensee shall be charged for the number of hours for which the
conference room(s) were reserved in accordance with PowerSPACE's then charges
for Schedule 1 Services to the extent that such reserved hours exceeds the
monthly allowance. From time to time during the Term, PowerSPACE may, at its
option, make other services available to Licensee including those similar in
nature to those described in Schedule "1" (the "Schedule 1 Services") at the
rates then charged by PowerSPACE therefor. PowerSPACE may discontinue any
Schedule 1 Service on 30 days prior notice. PowerSPACE may require an increase
in the Retainer from Licensee as a condition to provide or continue to provide
any Schedule 1 Service. If Licensee is in default of this Agreement, PowerSPACE
may, at its option, cease furnishing any and all services provided herein,
including, without limitation, Basic Services and Schedule 1 Services. Licensee
agrees that the maximum number of persons who may use any particular office at
any one time shall be as set forth in the Summary of Terms. In the event that
Licensee uses any particular office for more than the number of persons listed
in the column entitled Number of Occupants in the Summary of Terms for such
office, then notwithstanding that the same shall be a breach of this Agreement,
and without limiting PowerSPACE's rights hereunder for such breach, PowerSPACE
may increase the Base Monthly Fee by the amount of $250 for each person that
PowerSPACE determines is using an office or services in excess of the number of
permitted persons permitted to use such office. Except as expressly provided to
the contrary herein, Licensee shall use only telecommunications systems and
services as provided by PowerSPACE. Licensee shall pay PowerSPACE a fee for each
telephone call, long distance and local made by Licensee at the rates then
charged by PowerSPACE therefore (LICENSEE TO RECEIVE 50% REDUCTION IN DOMESTIC
LONG DISTANCE RATE). In the event PowerSPACE discontinues the offering of long
distance service, Licensee shall provide its own long distance service through a
locally accessed long distance carrier.
3. PAYMENTS OF FEES. Upon execution hereof, Licensee shall pay to
PowerSPACE the Total Opening Charges as set forth on the Summary of Terms.
Licensee agrees to pay to PowerSPACE the Monthly Base Fee including all
applicable sales and use taxes, in advance, on the first day of each calendar
month from and including the Commencement Date through and including the End
Date, without any deduction, offset, notice or demand. "End Date" shall mean the
Expiration Date or such earlier or later date on which this Agreement shall
sooner or later end pursuant to any of the terms, conditions or covenants of
this Agreement or pursuant to law. Licensee shall timely pay any occupancy and
taxes required to be paid by Licensee under applicable law. If the Commencement
Date shall not occur on the first
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day of a month, the Monthly Base Fee for such month shall be equitably prorated
to reflect the actual number of days of such month that shall be from and
including the Commencement Date through and including the last day of such month
in which the Commencement Date occurs. Except as otherwise provided herein,
Licensee agrees to pay PowerSPACE for any service or item ordered, used or
purchased by Licensee, including, without limitation, Schedule "1" Services,
telephone charges and overtime services, and any other amounts due hereunder,
within 10 days after rendition of any statement therefor. The Schedule 1 Service
charges shall be based upon PowerSPACE's then established charges for such
Schedule 1 Service. Licensee agrees to pay all amounts which Landlord charges,
and/or which PowerSPACE may incur, as a result of or arising from or in
connection with Licensee's moving into and/or out of the Office, Executive
Office Center and the Building, including, without limitation, for changing
listings on the Building's lobby directory or computerized directory and for use
of the freight elevator in the Building, within 10 days after rendition of any
statement therefor.
The Monthly Base Fee and other sums due hereunder shall be payable to
PowerSPACE at the office of PowerSPACE at the Executive Office Center or as
otherwise directed, in writing, by PowerSPACE. If the Monthly Base Fee or any
other sums required to be paid by Licensee hereunder is not paid when due,
Licensee shall pay each month to PowerSPACE until paid in full, an amount equal
to the greater of (i) 5% of the amounts due, which were not timely paid
hereunder, and (ii) $25. The parties agree that such charges are fair and
reasonable compensation for loss of the use of such funds and for administrative
costs incurred by PowerSPACE. Licensee acknowledges that all the financial terms
of this Agreement are strictly confidential and Licensee shall not knowingly or
wilfully divulge this information to any other licensee or potential licensee of
PowerSPACE.
4. CONTINUATION OF AGREEMENT. This Agreement shall automatically be renewed
for an additional term or terms for the same number of full calendar months as
between and including the Commencement Date and the Expiration Date, upon the
same terms and conditions as contained herein, unless either party gives notice
to the other in writing that it elects not to renew this Agreement at least 60
days prior to the Expiration Date, if Licensee has 1 or 2 offices, or 90 days
prior to the Expiration Date, if Licensee has 3 or more offices. On the first
annual anniversary of the Commencement Date and each and every anniversary Date
thereafter the Monthly Base Fee shall be automatically increased by six percent
(6%) of the Monthly Base Fee payable for the month preceding said anniversary
date.
5. RETAINER. Upon the execution of this Agreement, Licensee shall pay
PowerSPACE or its agent a retainer ("Retainer") in the amount listed in the
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Summary of Terms as part of the Total Opening Charges. Licensee acknowledges
that no interest shall be paid thereon to Licensee. In the event Licensee fails
to pay any sums due hereunder or fails to perform any of the terms hereof,
PowerSPACE may, in addition to its other remedies hereunder, use, apply or
retain the whole, or any part of the Retainer for the payment of any service fee
or any other payment due hereunder, or for payment of any other sum which
PowerSPACE may spend by reason of Licensee's default hereunder. If PowerSPACE
applies all or any part of the Retainer as provided herein, within 5 days after
written demand therefor, Licensee shall replenish such Retainer so that at all
times throughout the period that this Agreement is in effect, PowerSPACE shall
have the full amount of said Retainer. If as of the End Date, Licensee shall
have fully and faithfully complied with all of the terms and provisions of this
Agreement and surrendered all keys, access cards and building passes to
PowerSPACE, the Retainer, or any balance thereof, shall be returned to Licensee
within 30 Business Days after Licensee has satisfied all of its obligations
under this Agreement, including, without limitation, its obligations under
Paragraph 14 hereof. Upon any increase in the Monthly Base Fee, the Retainer
shall increase by an amount equal to the product of (i) 1.5 and (ii) the amount
by which the Monthly Base Fee has increased, and within 10 days after written
demand therefor, Licensee shall pay to PowerSPACE such additional amount.
6. INTERRUPTION OF SERVICES; INDEMNITY. Licensee acknowledges and agrees
that PowerSPACE shall not be liable for costs, expenses or damages, direct or
indirect, and Licensee waives, and agrees not to make any claim for the same,
which may be incurred by Licensee for the failure of PowerSPACE to provide, or
for the interruption, delay or discontinuance of, any service, including,
without limitation, Basic Services and Schedule 1 Services, or any error or
omission with respect thereto, or as a result from the failure of any third
party including, without limitation, Landlord or any utility or telephone
company to furnish any service.
To the fullest extent permitted by law, PowerSPACE and its respective
direct and indirect, directors, officers, members, partners, shareholders,
agents, servants and employees ("Indemnities") shall not be liable for, and
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Licensee waives all right of recovery against the Indemnities for damages,
direct or consequential, including with respect to lost business or profits,
whether arising from any acts, omissions or negligence of any Indemnitee,
Landlord and/or any third party. Licensee further agrees that all risk of damage
or loss of personal property of Licensee, its agents, employees, contractors,
and invitees, within or about the Executive Office Center or the Building shall
be at the sole risk of Licensee.
Licensee agrees to indemnify, defend, protect and hold harmless the
Indemnities from and against all claims, liabilities, fines, suits, demands,
costs and expenses (including attorneys' fees and disbursements) against the
Indemnities arising from any act, omission or negligence of Licensee, its
contractors, licensees, agents, servants, employees, invitees or visitors.
7. INSURANCE. Licensee shall obtain prior to the Commencement Date and
maintain throughout the period that this Agreement is in effect, including the
End Date, a policy of commercial general liability and property damage on an
occurrence basis with a broad form of contractual liability endorsement in an
amount of not less than [$1,000,000 ] and such other insurance as PowerSPACE may
reasonably require. In addition, Licensee shall insure its equipment,
furnishings, furniture and other personal property for the full replacement cost
thereof. Such policies shall name Licensee as the insured, and PowerSPACE,
PowerSPACE's agents, Landlord and Landlord's agents as additional insureds. All
such insurance shall be with a reputable insurance company reasonably acceptable
to PowerSpace which company shall be licensed to do business in the state where
the Building is located. Prior to Licensee entering into possession of the
Office, Licensee shall furnish PowerSPACE with a copy of such insurance policies
or certificates together with proof of payment of the premiums therefor. Within
15 days prior to the expiration of such policies, Licensee shall provide
PowerSPACE with evidence of renewal of such policies or of replacement policies
together with proof of payment of the premiums therefor.
Licensee agrees to obtain waivers of subrogation from its insurance
carriers with respect to property damage and waives any and all rights of
recovery against the Indemnities for loss of or damage to its property or the
property of others under its control, to the extent such loss or damage is
covered by the proceeds paid by any insurance policies, or should have been
covered by any insurance policy(ies) required to be obtained by Licensee
hereunder.
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8. DEFAULT. Licensee shall be in default under this Agreement: (a) if
Licensee fails to pay the Monthly Base Fee or other sums hereunder when due; or
(b) if Licensee fails to perform any other provision of this Agreement and any
such default continues for 10 days after written notice by PowerSPACE; or (c) if
Licensee becomes insolvent or bankrupt or makes an assignment for the benefit of
creditors; or (d) if Licensee shall be in default of any other agreement between
PowerSPACE and Licensee.
If Licensee is in default hereunder, PowerSPACE shall have the option to
pursue any remedies available at law or in equity, and collect any damages which
PowerSPACE may be permitted to collect hereunder or by law including, the
following remedies and damages, without notice or demand: (1) PowerSPACE may
terminate this Agreement and enter into the Office without releasing Licensee
from Licensee's obligations hereunder; (2) PowerSPACE may relicense the Office
by entering into a new space and service agreement with a third party which may
include other or different terms and services, provided, however, that
PowerSPACE shall have no obligation to relicense the office. No such relicensing
or failure to relicense or enter into a new space and service agreement shall
operate to relieve Licensee of any liability under this Agreement. Licensee
shall pay to PowerSPACE, as damages, any deficiency between the Monthly Base Fee
for the period which otherwise would have constituted the unexpired portion of
the term and the net amount, if any, of Monthly Base Fee collected under any
such relicensing for such period, (3) Licensee shall pay to PowerSPACE all of
PowerSPACE's expenses in connection with the termination of this Agreement,
PowerSPACE's re-entry and/or relicensing, including all repossession costs,
brokerage commissions, attorneys' fees and disbursements, alteration costs, and
other expenses; and (4) any personal property remaining in the Office after the
termination of this Agreement shall be deemed abandoned and may be destroyed by
PowerSPACE without liability therefor.
9. CARE OF THE OFFICE AND FURNISHINGS. Licensee shall take good care of
the Office and PowerSPACE's equipment and furnishings. Licensee shall not damage
any part of the Building or the property of PowerSPACE or disturb the quiet
enjoyment of any other licensees or occupants of the Building. Licensee shall
not damage or deface the furnishings, walls, floors or ceilings, nor make holes
for the hanging of pictures or make or suffer to be made any waste, obstruction
or unlawful, improper or offensive use of the Office or the Common Areas. No
alterations, installations, improvements, additions or physical changes
("Alterations") shall be made to the Office or the Executive Office Center
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without PowerSPACE's prior written consent. If any Alterations are consented to
by PowerSPACE, the same shall be made by PowerSPACE and Licensee agrees to pay
PowerSPACE the cost thereof. PowerSPACE shall have the right, from time to time,
to enter the Office to inspect the Office and its furniture and equipment and to
make such repairs and alterations as PowerSPACE reasonably deems necessary or
desirable, and the actual costs of any such repair resulting from damage or from
any act or omission of Licensee and its agents, employees, invitees, contractors
shall be reimbursed to PowerSPACE by Licensee upon written demand therefor.
Within 90 days prior to termination of this Agreement, PowerSPACE shall have the
right to show the Office to prospective licensees, provided PowerSPACE shall use
reasonable efforts not to disrupt Licensee's business.
10. RESTRICTION ON SERVICE AND HIRING. Licensee agrees that it shall not
offer to any party in the Executive Office Center or the Building, any of the
services which PowerSPACE provides to its Licensees including, but not limited
to, the Basic Services and the services described in Schedule "1". Licensee
covenants and agrees that for the period from the Commencement Date through and
including the End Date, and for 1 year thereafter, neither Licensee nor any of
its employees, principals or affiliated companies shall employ or retain the
services of, directly or as an independent contractor, any person who is or was
employed by PowerSPACE to render services in New York City at any time during
the period from the Commencement Date through and including the End Date. In the
event that Licensee shall breach any obligation or covenant contained in this
paragraph, Licensee shall be liable to PowerSPACE for, and shall pay to
PowerSPACE, on demand, liquidated damages in an amount equal to the last 6
months of such employee's salary for each employee with respect to whom such
breach shall occur, it being mutually agreed that the actual damages to
PowerSPACE for such breach would be extremely difficult to ascertain and that
the aforesaid liquidated damage amount is fair and reasonable.
11. NOTICES. All notices hereunder shall be in writing. Notices to Licensee
shall be deemed to be duly given if personally delivered or mailed by registered
or certified mail, postage prepaid, addressed to Licensee at the Address for
Notices to Licensee set forth in the Summary of Terms.
Notice to PowerSPACE shall be deemed to be duly given if mailed by registered or
certified mail, postage prepaid, to PowerSPACE as follows:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Center Manager
with copies to:
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇, President
PowerSPACE and Services, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇/▇▇/ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
and
Vornado Realty Trust
▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
12. FIRE OR CASUALTY. If any part of the Executive Office Center is made
unusable, in whole or in part, by fire or other casualty, PowerSPACE may, at its
option, terminate the Agreement upon notice to Licensee, effective upon the date
set forth in such notice
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for termination of this Agreement. If PowerSPACE fails to terminate this
Agreement and the Office is not repaired or restored within 60 days after the
fire or other casualty, Licensee may terminate this Agreement during the 10 day
period immediately succeeding such 60 day period, and Licensee shall be liable
only for its obligations which accrued hereunder for the period prior to the
effective date of such termination. If this Agreement is not terminated, the
Monthly Base Fee shall be abated on a per diem basis for the portions of the
Office that are unusable, if the fire or casualty was not the result of any act
or negligence of Licensee or any employee of Licensee.
13. RULES AND REGULATIONS. Licensee agrees to comply with all the rules and
regulations attached hereto and made a part hereof as Exhibit A. PowerSPACE
reserves the right to make such other rules and regulations as in its judgement
may from time to time deems reasonable. PowerSPACE shall have no responsibility
to Licensee for the violation or non-performance by any other licensees of any
of the rules and regulations and shall have no liability to Licensee for its
failure to enforce any of the foregoing. Licensee agrees to abide by all of
PowerSPACE's and Landlord's rules and regulations, now or hereafter made as well
as reasonable modifications to such rules and regulations.
14. END OF TERM. Upon the occurrence of the End Date, Licensee shall
immediately surrender the Office broom clean, in good order and condition,
ordinary wear and tear excepted, and free of all of Licensee's personal
property. Licensee shall return in good condition to PowerSPACE all furniture,
furnishings and equipment provided by PowerSPACE to Licensee. If Licensee has
occupied the Office for less than one year, then within 10 days after rendition
of any statement therefor, Licensee shall pay PowerSPACE, the reasonable costs
of refurbishing such Office, including, but not limited to, the costs of
repainting and carpet cleaning. If possession of the Office is not surrendered
to PowerSPACE, as aforesaid, then in addition to any other rights and remedies
PowerSPACE may have hereunder or at law or in equity, and without limiting
PowerSPACE's rights to collect any damages suffered by PowerSPACE arising from
Licensee's failure to surrender the same as herein provided, Licensee shall pay
to PowerSPACE for each and every month or portion thereof that Licensee fails to
surrender possession of the Office on or prior to the End Date, on account of
use and occupancy of the Office, an amount equal to the greater of (i) two times
the sum of the Monthly Base Fee and any other monthly fees then payable by
Licensee hereunder, and (ii) two times the then fair market value (as reasonably
determined by PowerSPACE) of the Office and all services provided hereunder,
computed on a per-month basis for each month or portion thereof.
15. MISCELLANEOUS.
A. All waivers must be in writing and signed by the waiving party.
PowerSPACE's failure to enforce any provision of this Agreement or its
acceptance of fees shall not be a waiver and shall not prevent PowerSPACE from
enforcing any provision of this Agreement in the future. No receipt of money by
PowerSPACE shall be deemed to waive any default of Licensee or to extend,
reinstate or continue the term of this Agreement.
B. The Summary of Terms, all Schedules and Exhibits attached hereto
are hereby incorporated herein. If there is any conflict between Schedules or
the Exhibits and the written text of paragraphs 1 through 14 hereof and the
Summary of Terms, then the terms and provisions of the written text of
Paragraphs 1 through 14 and the Summary of Terms shall control. The laws of the
State in which the Building is located shall govern this Agreement.
C. This Agreement contains the entire agreement between the parties
and supersedes all prior understandings, if any, with respect thereto. This
Agreement shall not be modified, changed, or supplemented, except by a written
instrument executed by both parties. All amendments to this Agreement shall be
in writing and signed by all parties. The invalidity or unenforceability of any
provision hereof shall not affect the remainder hereof.
D. All parties signing this Agreement on behalf of Licensee shall be
jointly and severally liable for all obligations of Licensee hereunder.
E. Licensee represents and warrants to PowerSPACE that there are no
agents, brokers, finders or other parties, except Broker, with whom Licensee has
dealt who are or may be entitled to any commission or fee with respect to this
Agreement. PowerSPACE shall pay Broker a commission pursuant to the terms of a
separate agreement between PowerSPACE and Broker.
F. Neither Licensee nor anyone claiming by, through or under Licensee
shall assign this Agreement or sublet any portion of the Office or permit the
use of any portion of the Executive Office Center or Office by any person or
entity other than Licensee named herein.
G. Licensee's liability for the Monthly Base Rent and any other
amounts due hereunder shall survive the occurrence of the End Date.
H. This Agreement is not a lease or any other interest in real
property, but merely creates a revocable license. The parties agree that there
shall not be a landlord/tenant relationship between PowerSPACE and Licensee.
This Agreement is subject and subordinate to any underlying lease or mortgage
now or hereafter affecting the Executive Office Center, and as the same may be
amended from time to time. Notwithstanding anything contained to the contrary
herein, this Agreement shall terminate simultaneously with the termination of
the Executive Office Center lease or operation of PowerSPACE's conduct of
business at the Executive Office Center for any reason.
I. Licensee acknowledges that any use of the Executive Office Center
shall comply with U.S. Postal Service regulations regarding Licensee's mail.
Upon the occurrence of the End Date, Licensee shall notify all parties with whom
Licensee does business of the termination of the use of the Office, assigned
telephone numbers, and telex and facsimile numbers. For 30 days after the date
of the expiration or other termination of this Agreement, PowerSPACE shall, at
Licensee's written request and cost, inform incoming callers of Licensee's new
telephone number and address, and shall hold or forward to Licensee once a week
packages, facsimiles and telexes. After such 30 day period, Licensee agrees that
PowerSPACE may (without incurring any liability whatsoever) destroy any
returned, unclaimed, or thereafter delivered packages, telexes and facsimiles
delivered to the Executive Office Center addressed to Licensee or any principal,
employee or agent of Licensee. If Licensee shall provide PowerSPACE with a
forwarding address for all mail, then for six months after the End Date or other
termination of this Agreement, PowerSPACE shall from time to time, at Licensee's
cost and expense, hold and forward to Licensee all mail addressed to Licensee
and Licensee agrees to reimburse PowerSPACE for all costs and expenses incurred
by PowerSPACE in connection therewith. Licensee's obligations to pay PowerSPACE
under the provisions of this Paragraph 15(I) shall survive the termination of
this Agreement and the End Date.
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J. PowerSPACE may assign this Agreement and/or any fees hereunder and
Licensee consents to any such assignment by PowerSPACE. The obligations of
PowerSPACE under this Agreement shall not be binding upon PowerSPACE after the
sale, conveyance, assignment or transfer by PowerSPACE of its interest in the
Executive Office Center, and in the event of any such sale, conveyance,
assignment or transfer, PowerSPACE shall be and hereby is entirely freed and
relieved of all covenants and obligations of PowerSPACE hereunder. Except for
PowerSPACE, the Indemnities shall not be liable for the performance of
PowerSPACE's obligations under this Agreement. Licensee shall look solely to
PowerSPACE to enforce PowerSPACE's obligations hereunder and shall not seek any
damages against any of the other Indemnities. The liability of PowerSPACE for
PowerSPACE's obligations under this Agreement shall be limited to PowerSPACE's
interest in the Executive Office Center and Licensee shall not look to any other
property or assets of the Indemnities in seeking either to enforce PowerSPACE's
obligations under this Agreement or to satisfy a judgment for PowerSPACE's
failure to perform such obligations.
K. If Licensee shall fail to perform any of its obligations
hereunder, and PowerSPACE makes any expenditure or incurs any obligation for the
payment of money, including, without limitation, reasonable attorneys' fees and
disbursements in performing the same for the account of Licensee or in
instituting, prosecuting or defending any action, proceeding or arbitration
against Licensee as a result thereof, then the same shall be deemed to be
additional sums due hereunder and shall be paid by Licensee to PowerSPACE within
5 days of rendition of any statement to Licensee therefor. If any such amounts
are not paid when due, then Licensee shall pay each month to PowerSPACE until
paid in full, an additional amount equal to the greater of (i) 5% of the amounts
due, which were not timely paid hereunder, and (ii) $25. If this Agreement shall
have expired or terminated at the time of making of such expenditures or
incurring of such obligations, such sums shall be recoverable by PowerSPACE as
damages.
L. In the event any dispute arises between PowerSPACE and Licensee
concerning this Agreement and the rights and obligations hereunder, PowerSPACE
shall have the option, but not the obligation, of submitting the matter to
arbitration on an expedited basis, pursuant to the procedures established by the
American Arbitration Association in the metropolitan area in which the Building
is located. The decision of the arbitrator shall be binding on the parties.
M. This Agreement may be executed in two or more counterparts, each
of which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
PowerSPACE & Services, Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Authorized Signatory
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
_________________________________
Licensee
By: /s/ ▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇ ▇▇▇▇▇▇
Title: Atlas DMT President
Licensee's Federal Tax ID No. ▇▇-▇▇▇▇▇▇▇
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For value received, the undersigned does hereby unconditionally guarantee
the prompt payment and full performance by Licensee of all the terms, covenants,
conditions and agreements as contained herein.
_______________________________________
Guarantor
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SCHEDULE "1"
ADDITIONAL SERVICES
Word processing services
Secretarial services
Facsimile services
Photocopying and binding services
Outgoing mail and express delivery services
Office supplies and printing
Purchasing services
Car and Limousine Services
Catering services
Conference room usage in excess of the monthly allowance
Rental of audio visual equipment (e.g., overhead/slide projection, TV/VCR, LED)
Overnight delivery and local messenger services
Various administrative assistance for office support services
Use of shared copier or color printer services
Videoconferencing
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EXHIBIT A
RULES AND REGULATIONS
1. No advertisement or identifying signs, other than provided by
PowerSPACE, or other notices shall be inscribed, painted, or affixed on any part
of the corridors, doors, Common Areas or any other portions of the Building.
Licensee shall not affix anything to the windows, walls or any other part of the
Office or the Executive Office Center. Licensee shall not obstruct any
corridors, halls, elevators and stairways or use the same for any purpose other
than egress and ingress. Licensee shall not remove furniture, fixtures or
decorative material from the Office without the written consent of PowerSPACE
and such removal shall be subject to the then regulations and procedures of
PowerSPACE and Landlord.
2. Licensee agrees that its employees, agents and invitees shall at
all times wear proper attire suitable to a professional business setting and act
accordingly. Licensee and its agents and guests shall not make noises or
otherwise interfere with or annoy other licensees and occupants of the Executive
Office Center and the Building.
3. Licensee agrees to protect the furniture and Office, and shall use
chair mats and desk pads in the Office and any damage from failure to use the
same shall be the responsibility of Licensee.
4. Licensee shall not, without PowerSPACE's prior written consent,
store or operate in the Office or the Executive Office Center any computer
(excepting personal computers and fax machines) or any other large business
machine, postage equipment, heater, stove, vending machine, refrigerator, coffee
maker, stereo equipment, radio, amplification or speaker equipment, reproduction
equipment, or other similar appliances or equipment. Licensee shall not do any
cooking or use or allow to be used in the Building, oil burning fluids,
gasoline, or kerosene for heating, warming, lighting or for any other purpose.
No hazardous substances or any explosives or fire arms shall be brought into the
Executive Office Center. Licensee shall not permit or tolerate any offensive
gases, odors or liquids.
5. The electrical current shall be used only for ordinary lighting
purposes and for personal computers and fax machines and no other purpose, and
in no event shall any use by Licensee thereof exceed the electrical capacity for
the Office, as determined by PowerSPACE. If Licensee needs electrical current
for any other purpose, then Licensee shall request, in writing, permission to
use the same and then subject to PowerSPACE's consent therefor, if granted by
PowerSPACE, in its sole discretion, then Licensee may use the same for the such
purpose and agrees to pay PowerSPACE additional monthly fees therefor.
6. No additional locks or bolts of any kind shall be placed upon any
of the doors or windows of the Executive Office Center by Licensee nor shall any
alterations be made on existing locks or bolts.
7. Licensee shall, before leaving the Office each day, close and
securely lock all doors and shut off all lights and other electrical apparatus.
Any damage or costs resulting from such failure to do so shall be paid for by
Licensee.
8. Canvassing, soliciting and peddling in the Building are prohibited
and Licensee shall not solicit other licensees for any business or other
purpose. Smoking shall be prohibited in accordance with all applicable laws.
9. Licensee will not prop open any corridor doors, exit doors or
doors connecting corridors during or after Business Hours.
10. Licensee will not conduct any activity within the Office,
Executive Office Center or Building which in the sole judgment of the PowerSPACE
will create excessive traffic or be inappropriate to a shared office
environment.
11. Licensee may not conduct business in the corridors or any other
areas except in its Office or the conference rooms.
12. Without PowerSPACE's prior written consent, Licensee shall not
engage in "mass marketing" tactics, including, direct mailings or advertising in
newspapers, billboards, yellow pages, etc., using any of PowerSPACE's assigned
telephone numbers or take any such action that would generate an excessive
number of incoming calls.
13. Immediately following the use of any conference room and/or
audio/visual equipment, Licensee will clean up such conference room and return
the equipment to the state and condition it was in prior to Licensee's use. If
not, PowerSPACE may charge Licensee for any expenses required to restore the
conference space and/or equipment to its original condition prior to such use.
14. If PowerSPACE determines that any use of either the conference
rooms or the Common Areas are inappropriate or may disrupt normal operations,
then PowerSPACE may deny Licensee access thereto and/or upon PowerSPACE's
request, Licensee shall immediately cease such use.
15. Licensee will bring no animals into the Executive Office Center
except for those assisting disabled individuals.
16. Licensee will not make any additional copies of any PowerSPACE
issued keys. All keys and security cards are the property of PowerSPACE and must
be returned upon request or prior to the End Date, whichever is sooner. Any lost
or unreturned keys or cards will incur a Twenty-Five Dollar ($25.00) per item
charge and the cost to re-key the office.
17. Licensee will not allow more than 3 visitors in the reception
lobby of the Executive Office Center at any one time.
18. Licensee will cooperate with, and be courteous to, all other
occupants of the Executive Office Center and PowerSPACE's staff and personnel.
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RIDER ONE TO SPACE AND SERVICE AGREEMENT DATED
OCTOBER 2, 2001, BETWEEN
POWERSPACE AND SERVICES, INC. ("POWERSPACE") AND
ATLAS DMT A DIVISION OF AVENUEA A, INC., A WASHINGTON CORPORATION
("LICENSEE")
INTERNET SERVICE AGREEMENT
Rights of Use
The right to use the internet service provided by PowerSPACE is not
transferable. Each Licensee who has access to the service must have their own
account. If Licensee has multiple users, each must have a separate account in
order to access the network. Use of "proxy" servers or other network sharing
technologies for purposes of avoiding per user license fees is expressly
prohibited.
IP Numbers
Any internet protocol numbers ("IP Numbers") assigned to Licensee by PowerSPACE
in connection with the internet service shall be used only in connection with
the internet service. In the event that Licensee discontinues use of the service
for any reason, or this agreement expires or is terminated for any reason,
Licensee's right to use the IP Numbers shall terminate.
Suspension/Termination of Service
PowerSPACE has the right to suspend or terminate internet service to Licensee at
any time should PowerSPACE, at its sole discretion, believe that Licensee's use
of the internet service violates the terms and conditions of this agreement, in
any way inhibits the reasonable commercial use of the Network by other internet
service customers and/or licensees, or violates the "Use of Network" provision
set forth below.
Disclaimer of Warranty
PowerSPACE exercises no control over, and accepts no responsibility for, the
content of the information passing through its host computers, switches, network
hubs, and points of presence (the "Network"). PowerSPACE (a) makes no warranties
of any kind, whether express or implied, for the services and equipment it is
providing and (b) disclaims any warranty of title, merchantability,
non-infringement, or fitness for a particular purpose. Use of any information
obtained via the Network is at Licensee's own risk. PowerSPACE specifically
denies any responsibility for the accuracy or quality of information obtained
through its services. PowerSPACE shall not be liable for any delay or failure in
performance due to acts of force majeure, which shall include acts of God,
earthquakes, power outages, labor disputes, changes in law, regulation or
government policy, riots, war, fire, acts or omissions of vendors or suppliers,
equipment failures, transportation difficulties, or other occurrences that are
beyond PowerSPACE's reasonable control.
Use of Network
Licensee may use the Network only for lawful purposes. Transmission,
distribution or storage of any material in violation of applicable law or
regulation is prohibited. This includes, without limitation, material protected
by copyright, trademark, trade secret or other intellectual property right used
without proper authorization, and material that is obscene, defamatory,
constitutes an illegal threat, or violates export control laws. Web servers,
e-mail servers, and FTP servers are also prohibited. Licensee agrees to
indemnify and hold harmless PowerSPACE and its affiliates from any losses,
damages, costs or expenses resulting from any third party claim or allegation
arising out of or relating to use of the Network or internet services, including
any claim or allegation that, if true, would constitute a violation of this
provision.
Limitation of Liability
Neither PowerSPACE nor Licensee shall be liable for any direct, incidental,
special, punitive or consequential damages that arise out of or relate to this
Agreement or the internet services provided hereunder, including without
limitation any such damages for loss of data related to delays, non-deliveries,
misdeliveries or service interruptions.
Page 8 of 9
System and Network Security
Violations of system or network security by Licensee are prohibited; any may
result in termination of service. PowerSPACE may investigate incidents or
allegations involving such violations and may involve and will cooperate with
law enforcement if a violation is suspected. Examples of system or network
security violations include, without limitation, (i) unauthorized access to or
use of data, systems or networks, including any attempt to probe, scan or test
the vulnerability of a system or network or to breach security or authentication
measures without express authorization of the owner of the system or network;
(ii) unauthorized monitoring of data or traffic on any network or system without
express authorization of the owner of the system or network; (iii) interference
with service to any user, host or network including, without limitation, mail
bombing, flooding, deliberate attempts to overload a system and broadcast
attacks, or (iv) forging of any TCP-IP packet header or any part of the header
information in an email or a newsgroup posting.
ATLAS DMT, a division of AVENUE A, INC. POWERSPACE & SERVICES, INC.
/s/ ▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------------- ---------------------------
Name: ▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: President, Atlas DMT Title: Vice President
DATE: October 4, 2001 DATE: October 4, 2001
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