HQ BUSINESS CENTERS
OFFICE SERVICE AGREEMENT
This Agreement is dated 3/10/96 and is entered into in New York, NY (City &
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State) by and between New York - Executive Office Network (hereinafter "HQ")
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and Aufhauser Corporation (hereinafter "Client").
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HQ and Client agree that HQ shall grant to Client for and in consideration of
the agreements and fee(s) set forth herein, a license to use the Office(s) as
from time to time designated by HQ and, in common with HQ's other clients, a
license to use HQ's Business Center facilities and services, in accordance
with the terms hereof.
1. BASIC TERMS. This Section 1 contains the basic terms of this Agreement
and all provisions of this Agreement are to be read in accord therewith:
A. Base Services: HQ's Complete Executive Office Program, including
the use of executive offices complete with professional administrative staff,
telephone answering and such other inclusive services are as defined in
Schedule "A".
B. Additional Services: Access to additional business services for
purchase as needed by Client, including secretarial, administrative,
telecommunications support and such other services are as defined in Schedule
"B".
C. HQ Business Center Wall St.
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D. Building ▇▇ ▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
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E. Office [number(s)] 524 having a maximum occupancy capacity of 2
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person(s).
F. Commencement Date 3/10/96 G. Initial Term 12 months
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H. End of Initial Term 3/10/97 I. Monthly Base Services Fee $1,200.00
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J. Refundable Services Retainer $2,400.00
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2. OFFICE. Client shall, as part of the Base Services, be granted
a license to use the Office and shall have access to the Office twenty-four
(24) hours a day, seven (7) days a week. HQ agrees to provide office
cleaning, maintenance services, electric heating and air conditioning to the
Office for normal office use in such reasonable quantities and during such
reasonable hours as shall be determined by HQ or the Building. In addition,
Client will have reasonable use of HQ common area facilities. Client shall
use the Office and common areas of the HQ Business Center solely for general
office use in the conduct of the Client's business.
If, for any reason whatsoever, HQ is unable to provide use of the Office
or a mutually agreed upon alternative Office at the time herein agreed,
Client may either extend the Commencement Date until the Office becomes
available or, as its sole remedy for such failure, cancel and terminate this
Agreement if the use of the Office is not available to Client within five (5)
business days after written notice to HQ by Client, in which case any prior
payments shall be fully refunded. No such failure to provide use of the
Office shall subject HQ to any liability for loss or damage, nor affect the
validity of this Agreement or the obligations of the Client hereunder.
HQ will have the right to relocate Client to another office in the HQ
Business Center, and to substitute such other office for the Office licensed
hereby, provided such other office is substantially similar in area and
configuration to Client's contracted office and provided Client shall incur
no increase in the Monthly Base Services Fee or any relocation cost or
expense.
3. SERVICES. HQ agrees, in consideration of the Monthly Base Services
Fee, to provide Base Services to Client as described in Schedule "A". From
time to time during the Term, HQ may, at its option, make other services
available to Client of the nature described in Schedule "B", at fees that are
from time to time established by HQ. HQ shall be under no obligation to
provide Schedule "B" services if the monthly cost thereof exceeds the
Refundable Services Retainer. In the event Client is in default of this
Agreement, HQ may, at its option, cease furnishing any and all services
including telephone services.
Client will not offer to any party in the HQ Business Center or the
Building, any of the services that HQ provides to its clients including, but
not limited to, the services described in Schedule "A" or "B".
HQ will answer all incoming telephone calls, unless otherwise mutually
agreed, during normal business hours, as determined by HQ. Answering service
will be limited to normal business communications, excluding inbound
telemarketing and advertising response which requires pre-approval by HQ and
shall be subject to fees established from time to time by HQ.
Client will use only telecommunications systems and services as provided
by HQ. Client will pay to HQ a monthly equipment rental fee for the use of
each telephone instrument and voice lines. In the event HQ discontinues the
offering of long distance service, Client will provide its own long distance
service through a locally accessed long distance carrier.
Client acknowledges that due to the imperfect nature of verbal, written
and electronic communications, neither HQ nor any of its officers, directors,
employees, shareholders, partners, agents or representatives shall be
responsible for damages, direct or consequential, that may result from
995HQBC Page 1 of 5 -C- 1995 HQ NETWORK SYSTEMS, INC.
the failure of HQ to furnish any service, including but not limited to the
service of conveying messages, communications and other utility or services
required under this Agreement or agreed to by HQ. Client's sole remedy and
HQ's sole obligation for any failure to render any service, any error or
omission, or any delay or interruption with respect thereto, is limited to an
adjustment to Client's billing in an amount equal to the charge for such
service for the period during which the failure, delay or interruption
continues.
CLIENT EXPRESSLY WAIVES, AND AGREES NOT TO MAKE ANY CLAIM FOR DAMAGES,
DIRECT OR CONSEQUENTIAL, ARISING OUT OF ANY FAILURE TO FURNISH ANY UTILITY,
SERVICE OR FACILITY, ANY ERROR OR OMISSION WITH RESPECT THERETO, OR ANY
DELAY OR INTERRUPTION OF THE SAME.
4. DURATION OF AGREEMENT. Upon the End of Initial Term, or any
extension thereof, the term of this Agreement and the license herein granted
shall be automatically extended for the same period of time as the Initial
Term, upon the same terms and conditions as contained herein, unless either
party gives notice to the other in writing to the contrary at least sixty
(60) days prior to the End of Initial Term (90 days if Client has licensed
the use of three or more offices).
Upon any termination of this Agreement, whether by lapse of time or
otherwise, or upon any revocation of Client's license herein granted, the
Client shall cease all use of the Office, the HQ Business Center and all
services immediately. For each and every month or portion thereof that Client
continues use of the Office after the termination of this Agreement by lapse
of time or otherwise, without the express written consent of HQ, Client shall
pay HQ an amount equal to double the Monthly Base Services Fee computed on a
per-month basis for each month or portion thereof that Client continues the
use of the Office.
5. PAYMENTS AND ESCALATIONS. Client agrees to pay to HQ the Monthly
Base Services Fee plus applicable sales or use taxes, in advance, on the
first day of each calendar month during the Initial Term and all extensions
thereof, without any deduction, offset, notice or demand. If the Commencement
Date shall be other than the first day of a month or end on the last day of a
month, fees for any such month shall be prorated. Charges for any Schedule
"B" service purchased by Client from HQ shall be due and payable on the 10th
of the month following the order for any such service.
One year after the Commencement Date of this Agreement and each and every
anniversary date thereafter, the Monthly Base Services Fee will automatically
increase by six percent (6%) of the Monthly Base Services Fee due for the
month preceding such anniversary date.
All Monthly Base Services Fees and other sums payable hereunder shall be
payable at the office of HQ or at such other location or to any agent
designated in writing by HQ. In addition to any other sums due, Client shall
pay monthly late charges equal to five percent (5%) of all amounts that have
not been paid to HQ within five (5) days of their respective due dates. The
parties agree that such late charges are fair and reasonable compensation for
costs incurred by HQ where there is default in any payment due under this
Agreement.
Upon the execution of this Agreement, Client shall pay HQ or its agent
the Refundable Services Retainer. The Refundable Services Retainer need not
be kept separate and apart from other funds of HQ, no interest shall be paid
thereon, and may be used by HQ to provide Schedule "A" and "B" services under
this Agreement. In addition to the Refundable Services Retainer, Client will,
upon execution hereof, pay to HQ the Monthly Base Services Fee for the first
full month of the Initial Term.
Client agrees that the Refundable Services Retainer shall not be used by
Client as payment for the Monthly Base Services Fee for the last month of the
Initial Term, or any extension thereof. In the event Client defaults in the
performance of any of the terms hereof, HQ may terminate this Agreement and
the license herein granted and may also use, apply or retain the whole, or
any part, of the Refundable Services Retainer for the payment of any service
fee or any other payment due hereunder, or for payment of any other sum that
HQ may spend by reason of Client's default. If Client shall, at the end of
the term of this Agreement, have fully and faithfully complied with all of
the terms and provisions of this Agreement, and surrendered all keys, access
cards and building passes, the Refundable Services Retainer, or any balance
thereof, shall be returned to Client within forty-five (45) days thereafter.
6. DAMAGES AND INSURANCE. Client will 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 area facilities. Client
will not cause damage to any part of the Building or the property of HQ or
disturb the quiet enjoyment of any other licensee or occupant of the
Building. At the termination of this Agreement, the Office shall be in as
good condition as when Client commenced the use thereof, normal wear and tear
excepted. Client agrees to pay for repainting each Office used less than
twelve (12) months by Client, at a cost not to exceed One Hundred Fifty
Dollars ($200.00) per Office. HQ will have the right, at any time and from
time to time, to enter the Office to inspect the same, to make such repairs
and alterations as HQ reasonably deems necessary, and the cost of any such
repair resulting from the act or omission of Client shall be reimbursed to
HQ by Client upon demand. HQ shall have the right to show the Office to
prospective Clients, provided HQ will use reasonable efforts not to disrupt
Client's business.
HQ and its respective directors, licensors, officers, agents, servants
and employees shall not, to the extent permitted by law, except upon the
affirmative showing of HQ's gross negligence or willful misconduct, be
liable for, and Client waives all right of recovery against such entities and
individuals for any damage or claim with respect to any injury to person or
damage to, or loss or destruction of any property of Client, its employees,
authorized persons and invitees due to any act, omission or occurrence in or
about the HQ Business Center or the Building. Without limitation of any other
provision hereof, each party hereto hereby agrees to indemnify, defend and
hold harmless the other party hereto, and such other party's officers,
directors, employees, shareholders, partners, agents and representatives from
and against any liability to third parties arising out of, in the case of
Client as an indemnifying party, Client's use and occupancy of the Office or
any negligent act or omission of Client or Client's officers, directors,
employees, shareholders, partners, agents, representatives, contractors,
customers or invitees and, in the case of HQ as an indemnifying party, any
act or omission constituting gross negligence or willful misconduct of HQ or
HQ's officers, directors, employees, shareholders, partners, agents or
representatives. Subject to the foregoing, Client assumes all risk of loss
with respect to all personal property of Client, its agents employees,
contractors, and invitees, within or about the HQ Business Center or the
Building. Client acknowledges that it is the Client's responsibility to
maintain insurance to cover the risks set forth in this paragraph.
HQ and Client each hereby waive any and all rights of recovery against
the other, or against the directors, licensors, officers, agents, servants
and employees of the other, 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 any insurance policy.
If the HQ Business Center is made unusable, in whole or in part, by fire
or other casualty not due to negligence of Client, HQ may, at its option,
terminate the Agreement upon notice to Client, effective upon such casualty,
or may elect to repair, restore or rehabilitate, or cause to be repaired,
restored or rehabilitated, the HQ Business Center, without expense to
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Client, within ninety (90) days or within such longer period of time as may
be required because of events beyond HQ's control. The Monthly Base Services
Fee shall be abated on a per diem basis for the portions of the Office that
are unusable.
7. DEFAULT. Client shall be deemed to be in default under this
Agreement: (a) if Client defaults in the payment of the Monthly Base Services
Fee or other sums due hereunder or (b) if Client defaults in the prompt and
full performance of any other provision of this Agreement and any such
default continues in excess of five (5) business days after written notice by
HQ.
Should Client be in default hereunder, HQ shall have the option to pursue
any one or more of the following remedies without any additional notice or
demand whatsoever and without limitation to HQ in the exercise of any remedy:
(1) HQ may, if HQ so elects, without any additional notice of such
election or demand to Client, either forthwith terminate this Agreement and
the license to use any portion of the HQ Business Center, and may enter into
the Office and take and hold possession of the contents thereof, without
releasing Client, in whole or in part, from the Client's obligations
hereunder. In the event of such termination, HQ may, at its option, declare
the entire amount of the Monthly Base Services Fee which would become due and
payable during the remainder of the term, to be due and payable immediately,
in which event, Client agrees to pay the same at once.
(2) Pursue any other remedy now or hereafter available to HQ. HQ's
exercise of any right or remedy shall not prevent it from exercising any
other right or remedy.
Client agrees to pay all costs and expenses, including reasonable
attorneys' fees, expended or incurred by HQ in connection with the
enforcement of this Agreement, the collection of any sums due hereunder, any
action for declaratory relief in any way related to this Agreement, or the
protection or preservation of any rights of HQ hereunder.
8. RESTRICTION ON HIRING. Client agrees that during the term of this
Agreement and within one (1) year of the termination of this Agreement,
neither Client nor any of its principals, employees or affiliates will hire
directly or as an independent contractor, any person who is at that time, or
was during the term of this Agreement, an employee of HQ. In the event of a
breach of any obligation of Client contained in this paragraph, Client shall
be liable to HQ for, and shall pay to HQ, on demand, liquidated damages in
the sum of $10,000.00 for each employee with respect to whom such breach shall
occur, it being mutually agreed that the actual damage that would be
sustained by HQ as the result of any such breach would be, from the nature of
the case, extremely difficult to fix and that the aforesaid liquidated
damage amount is fair and reasonable.
9. MISCELLANEOUS.
A. This is the only Agreement between the parties. No other agreements
are effective. All amendments to this Agreement shall be in writing and
signed by all parties. Any other attempted amendment shall be void. The
invalidity or unenforceability of any provision hereof shall not affect the
remainder hereof.
B. All waivers must be in writing and signed by the waiving party. HQ's
failure to enforce any provision of this Agreement or its acceptance of fees
shall not be a waiver and shall not prevent HQ from enforcing any provision
of this Agreement in the future. No receipt of money by HQ shall be deemed to
waive any default of Client or to extend, reinstate or continue the term
hereof.
C. All Schedules and Addenda attached hereto are hereby incorporated
herein by this reference. The laws of the State in which the HQ Business
Center is located shall govern this Agreement.
D. All parties signing this Agreement as a partnership or co-signing
individuals shall be jointly and severally liable for all obligations of
Client.
E. Client represents and warrants to HQ that there are no agents,
brokers, finders or other parties except ____________________ with whom
Client has dealt who are or may be entitled to any commission or fee with
respect to this Agreement.
F. Neither Client nor anyone claiming by, through or under Client
shall assign this Agreement or permit the use of any portion of the HQ
Business Center by any person other than Client; provided, however, Client
may assign this Agreement to an affiliated corporation of Client. In the
event of any such permitted assignment, Client shall not thereby be relieved
of any of its obligations under this Agreement.
G. The Rules and Regulations of the Building and of HQ as defined on
Schedule "C" hereto and any additional schedules that may be attached hereto
are expressly made a part of this Agreement and Client expressly covenants
and agrees to abide by all of such Rules and Regulations and such additional
terms, as well as such reasonable modifications to such Rules and Regulations
as may be hereafter adopted by HQ.
H. All notices hereunder shall be in writing. Notices to Client shall
be deemed to be duly given if mailed by registered or certified mail, postage
prepaid, addressed to Client at:
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Notice to HQ shall be deemed to be duly given if mailed by
registered or certified mail, postage prepaid, to HQ at the Building and as
follows:
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I. THIS AGREEMENT IS NOT INTENDED TO CREATE A LEASE OR ANY OTHER
INTEREST IN REAL PROPERTY IN FAVOR OF THE CLIENT, BUT MERELY CREATES A
REVOCABLE LICENSE IN ACCORDANCE WITH THE TERMS HEREOF. This Agreement grants
Client the license to use the HQ Business Center and the Office for the
specific purposes herein set forth without diminution of the legal possession
or control thereof by HQ and shall be revocable at the option of HQ upon the
destruction of the HQ Business Center or the breach by Client of any term or
condition herein set forth. This Agreement is subject and subordinate to any
underlying lease or contract of the Building or of the premises comprising
the Office or the HQ Business Center as such lease or contract may be amended
from time to time (such underlying lease or contract together with any
amendments, is hereinafter referred to as the "Master Lease"). This Agreement
shall terminate simultaneously with the termination of the HQ Business Center
operation for any reason. Client is not a party to nor shall Client have any
rights under the Master Lease.
J. Client acknowledges that HQ Business Centers will comply with U.S.
Postal Service regulations regarding Client mail and, upon termination of
this Agreement, it will be Client's responsibility to notify all parties of
termination of the use of the above described address, assigned telephone
number, telex and facsimile numbers. For a period of thirty (30) days after
the termination of this Agreement, HQ will, at Client's written request and
cost, provide Client's new telephone number and address to all incoming
callers and will hold or forward to Client once a week all mail, packages,
facsimiles and telexes.
K. HQ may assign this Agreement and/or any fees hereunder and Client
agrees to attorn to any such assignee.
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HQ
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Executive Office Network, Ltd.
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A(n) California corporation
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By: ▇▇▇▇▇▇▇ Hope
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/s/ ▇▇▇▇▇▇▇ Hope
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Its: Center/Sales Manager
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CLIENT
CORPORATION: Aufhauser & Co
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A(n) New York corporation
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By: ▇▇▇▇ ▇▇▇▇▇
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Its: President
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PARTNERSHIP:
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A(n) partnership
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By:
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Its: General Partner
INDIVIDUALS:
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(signature)
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(print name)
Address:
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(signature)
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(print name)
Address:
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PERSONAL GUARANTEE:
For value received, the undersigned does hereby unconditionally and
irrevocably guarantee the prompt payment and full performance of all terms,
covenants, conditions and agreements as contained herein.
BY: BY: BY:
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SCHEDULE "A"
BASE SERVICES
- Individual Executive Office
- Personalized Telephone Answering of Incoming Calls (# Unlimited incoming
calls per month at no charge)
- Furnished and Decorated Reception Area
- Professional Receptionist, Message Center Secretaries, and Office Manager
- Use of Furnished, and Audio-Visual Equipped Conference Rooms (#2 hours per
month at no charge)
- Prestigious Business Address
- Business Identity on Building Lobby Directory
- Facsimile Number for Client's Use
- Mail and Package Receipt
- Utilities and Janitorial Service
- Building Operating Expenses
SCHEDULE "B"
ADDITIONAL SERVICES
Word Processing Services
Secretarial Services
Facsimile and Telex Services
Voice Messaging Service*
Copy and Binding Services
Outgoing Mail & Express Delivery Services
Office Furniture
Specialized Equipment
Printing & Office Supplies
Miscellaneous Purchasing Services
Catering & Beverage Services
Paging Services
Telephone Equipment
Specialized Telephone Services
Local & Long Distance Telephone Service
Excess Message Usage
Excess Conference Room Usage
Other Client Requested Services*
*Where available
Page 4 of 5
SCHEDULE "C"
RULES AND REGULATIONS
1. Client's employees and guests will conduct themselves in a businesslike
manner; proper business attire will be worn at all times; the noise level will
be kept to a level so as not to interfere with or annoy other clients and
Client will abide by HQ's directives regarding security, keys, parking and
other such matters common to all occupants.
2. Client agrees to use chair mats and desk pads in the Office(s) and any
damage from failure to use the same will be the responsibility of Client.
Client will not affix anything to the windows, walls or any other part of the
Office(s) or the HQ Business Center or make alterations or additions to the
Office(s) or the HQ Business Center without the prior written consent of HQ.
3. Client will not prop open any corridor doors, exit doors or door
connecting corridors during or after business hours.
4. Client can only use public areas with the consent of HQ and those areas
must be kept neat and attractive at all times.
5. All corridors, halls, elevators and stairways shall not be obstructed by
Client or used for any purpose other than egress and ingress.
6. No advertisement or identifying signs, other than provided by HQ, or other
notices shall be inscribed, painted, or affixed on any part of the corridors,
doors or public areas.
7. Client shall not, without HQ's prior written consent, store or operate in
the Office(s) or the HQ Business Center any computer (excepting a personal
computer) or any other large business machine, reproduction equipment,
heating equipment, stove, radio, stereo equipment or other mechanical
amplification equipment, vending or coin operated machine, refrigerator or
coffee equipment, or conduct a mechanical business therein, do any cooking
therein, or use or allow to be used in the Building, oil burning fluids,
gasoline, kerosene for heating, warming or lighting. No article deemed
hazardous on account of fire or any explosives shall be brought into the HQ
Business Center. No offensive gases, odors or liquids will be permitted.
8. The electrical current shall be used for ordinary lighting purposes only
unless written permission to do otherwise shall first have been obtained from
HQ at an agreed cost to Client.
9. If Client requires any special installation or wiring for electrical use,
telephone equipment or otherwise, such wiring shall be done at Client's
expense by the personnel designated by HQ.
10. Client may not conduct business in the hallways, reception area or any
other area except in its designated Office(s) without the prior written
consent of HQ.
11. Client will bring no animals other than seeing-eye dogs in the company of
blind persons into the Building.
12. Client shall not remove furniture, fixtures or decorative material from
the Office(s) without the written consent of HQ and such removal shall be
under the supervision and regulations of the HQ Business Center.
13. Client will not use the HQ Business Center for manufacturing or storage
of merchandise except as such storage may be incidental to general office
purposes.
14. Client will not occupy or permit any portion of the HQ Business Center to
be occupied or used for the manufacture, sale, gift or use of liquor,
narcotics or tobacco in any form.
15. Client will not use the Office(s) for lodging or sleeping or for any
immoral or illegal purposes.
16. No additional locks or bolts of any kind shall be placed upon any doors
or windows of the HQ Business Center by Client nor shall any changes be made
on existing locks or the mechanisms thereof.
17. Client shall, before leaving the Office(s) unattended for an extended
period of time, close and securely lock all doors and shut off all lights and
other electrical apparatus. Any damage resulting from failure to do so shall
be paid by Client.
18. Canvassing, soliciting and peddling in the Building are prohibited and
Client shall not solicit other clients for any business or other purpose
without the prior written approval of HQ.
19. All property belonging to Client or any employee, agent or invitee of
Client shall be at the risk of such person only and HQ shall not be liable
for damages thereto or for theft or misappropriation thereof.
20. If Client does not remove any property belonging to Client from the HQ
Business Center by the end of the term, at the option of HQ, Client shall be
conclusively presumed to have conveyed such property to HQ under this
Agreement as a ▇▇▇▇ of sale without further payment or credit by HQ to Client
and HQ may remove the same and Client shall pay HQ all costs of such removal
upon demand.
21. Smoking shall be prohibited in all public areas, including conference and
training rooms. No smoking shall be permitted at any time in any area of the
HQ Business Center (including open offices and workstations); provided,
however, with the prior written consent of HQ, smoking shall be permitted in
Client's Office(s), but only with the door closed, and then only cigarette
smoking will be permitted so long as client provides an air filter device
acceptable to HQ, unless the entire Building has been designated non-smoking,
in which case smoking is not permitted in the Office(s). Cigar and pipe
smoking are prohibited in all areas of the HQ Business Center.
HQ SHALL HAVE NO RESPONSIBILITY TO CLIENT FOR THE VIOLATION OR
NON-PERFORMANCE BY ANY OTHER HQ CLIENTS OF ANY OF THE RULES AND REGULATIONS
BUT SHALL USE REASONABLE EFFORTS TO UNIFORMLY ENFORCE ALL RULES AND
REGULATIONS.
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