Exhibit 10.1
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STANDARD FORM OF OFFICE LEASE
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7/04
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The Real Estate Board of New York,
Inc.
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Agreement of Lease, made as of this 9 th day of June in
the year 2006, between Cres, Inc. c/o Newmark Knight Frank,
125 Park Avenue, New York, New York 10017
party of the first part, hereinafter
referred to as OWNER, and DAG Media, Inc. having an office at
125-10 Queens Blvd, Kew Gardens, NY
party of the second part, hereinafter referred
to as TENANT,
Witnesseth:
Owner hereby leases to Tenant and
Tenant hereby hires from Owner a portion of the fifth (5th) floor
as shown on the attached floor plan marked Exhibit A in the
building known as 192 Lexington Avenue, New York, New York in the
Borough of Manhattan, City of New York, for the term of Five (5)
years
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(or until such term shall sooner cease and
expire as hereinafter provided) to commence on the
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1st
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day of
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July
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in the year
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2006
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, and to end on the
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30th
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day of
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June
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in the year
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2011
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, and
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both dates inclusive, at the
annual rental rate of
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see Article 62
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which Tenant agrees to pay in
lawful money of the United States, which shall be legal tender in
payment of all debts and dues, public and private, at the time of
payment, in equal monthly installments in advance on the first day
of each month during said term, at the office of Owner or such
other place as Owner may designate, without any setoff or deduction
whatsoever, except that Tenant shall pay the first monthly
installment(s) on the execution hereof (unless this lease be a
renewal).
In
the event that, at the commencement of the term of this lease, or
thereafter. Tenant shall be in default in the payment of rent to
Owner pursuant to the terms of another lease with Owner or with
Owner’s predecessor in interest, Owner may at Owner’s
option and without notice to Tenant add the amount of such arrears
to any monthly installment of rent hereunder and the same shall be
payable to Owner as additional rent.
The
parties hereto, for themselves, their heirs, distributees,
executors, administrators, legal representatives, successors and
assigns, hereby covenant as follows:
Rent:
1. Tenant shall
pay the rent as above and as hereinafter provided,
Occupancy:
2. Tenant shall
use and occupy the demised premises for general and executive
offices for an online technology company and for no other
purpose.
Tenant
Alterations:
3. Tenant shall
make no changes in or to the demised premises of any nature without
Owner’s prior written consent. Subject to the prior written
consent of Owner, and to the provisions of this article, Tenant, at
Tenant’s expense, may make alterations, installations,
additions or improvements which are non-structural and which do not
affect utility services or plumbing and electrical lines, in or to
the interior of the demised premises, by using contractors or
mechanics first approved in each instance by Owner. Tenant shall,
before making any alterations, additions, installations or
improvements, at its expense, obtain all permits, approvals and
certificates required by any governmental or quasi-governmental
bodies and (upon completion) certificates of final approval
thereof, and shall deliver promptly duplicates of all such permits,
approvals and certificates to Owner, and Tenant agrees to carry,
and will cause Tenant’s contractors and sub-contractors to
carry, such worker’s compensation, commercial general
liability, personal and property damage insurance as Owner may
require.
E-1
If any mechanic’s lien is
filed against the demised premises, or the building of which the
same forms a part, for work claimed to have been done for, or
materials furnished to, Tenant, whether or not done pursuant to
this article, the same shall be discharged by Tenant within thirty
days thereafter, at Tenant’s expense, by payment or filing a
bond as permitted by law. All fixtures and all paneling,
partitions, railings and like installations, installed in the
demised premises at any time, either by Tenant or by Owner on
Tenant’s behalf, shall, upon installation, become the
property of Owner and shall remain upon and be surrendered with the
demised premises unless Owner, by notice to Tenant no later than
twenty days prior to the date fixed as the termination of this
lease, elects to relinquish Owner’s right thereto and to have
them removed by Tenant, in which event the same shall be removed
from the demised premises by Tenant prior to the expiration of the
lease, at Tenant’s expense. Nothing in this article shall be
construed to give Owner title to, or to prevent Tenant’s
removal of, trade fixtures, moveable office furniture and
equipment, but upon removal of same from the demised premises or
upon removal, of other installations as may be required by Owner,
Tenant shall immediately, and at its expense, repair and restore
the demised premises to the condition existing prior to any such
installations, and repair any damage to the demised premises or the
building due to such removal. All property permitted or required to
be removed by Tenant at the end of the term remaining in the
demised premises after Tenant’s removal shall be deemed
abandoned and may, at the election of Owner, either be retained as
Owner’s property or may be removed from the demised premises
by Owner, at Tenant’s expense.
Maintenance and
Repairs:
4. Tenant
shall, throughout the term of this lease, take good care of the
demised premises and the fixtures and appurtenances therein. Tenant
shall be responsible for all damage or injury to the demised
premises or any other part of the building and the systems and
equipment thereof, whether requiring structural or nonstructural
repairs caused by, or resulting from, carelessness, omission,
neglect or improper conduct of Tenant, Tenant’s subtenants,
agents, employees, invitees or licensees, or which arise out of any
work, labor, service or equipment done for, or supplied to, Tenant
or any subtenant, or arising out of the installation, use or
operation of the property or equipment of Tenant or any subtenant.
Tenant shall also repair all damage to the building and the demised
premises caused by the moving of Tenant’s fixtures, furniture
and equipment. Tenant shall promptly make, at Tenant’s
expense, all repairs in and to the demised premises for which
Tenant is responsible, using only the contractor for the trade or
trades in question, selected from a list of at least two
contractors per trade submitted by Owner. Any other repairs in or
to the building or the facilities and systems thereof, for which
Tenant is responsible, shall be performed by Owner at the
Tenant’s expense. Owner shall maintain in good working order
and repair the exterior and the structural portions of the
building, including the structural portions of the demised
premises, and the public portions of the building interior and the
building plumbing, electrical, heating and ventilating systems (to
the extent such systems presently exist) serving the demised
premises. Tenant agrees to give prompt notice of any defective
condition in the demised premises for which Owner may be
responsible hereunder. There shall be no allowance to Tenant for
diminution of rental value and no liability on the part of Owner by
reason of inconvenience, annoyance or injury to business arising
from Owner or others making repairs, alterations, additions or
improvements in or to any portion of the building or the demised
premises, or in and to the fixtures, appurtenances or equipment
thereof. It is specifically agreed that Tenant shall not be
entitled to any setoff or reduction of rent by reason of any
failure of Owner to comply with the covenants of this or any other
article of this lease. Tenant agrees that Tenant’s sole
remedy at law in such instance will be by way of an action for
damages for breach of contract. The provisions of this Article 4
shall not apply in the case of fire or other casualty, which are
dealt with in Article 9 hereof.
Window
Cleaning:
5. Tenant will
not clean nor require, permit, suffer or allow any window in the
demised premises to be cleaned from the outside in violation of
Section 202 of the Labor Law or any other applicable law, or of the
Rules of the Board of Standards and Appeals, or of any other Board
or body having or asserting jurisdiction.
Requirements of Law, Fire
Insurance, Floor Loads:
6. Prior to the
commencement of the lease term, if Tenant is then in possession,
and at all times thereafter, Tenant, at Tenant’s sole cost
and expense, shall promptly comply with all present and future
laws, orders and regulations of all state, federal, municipal and
local governments, departments, commissions and boards and any
direction of any public officer pursuant to law, and all orders,
rules and regulations of the New York Board of Fire Underwriters,
Insurance Services Office, or any similar body which shall impose
any violation, order or duty upon Owner or Tenant with respect to
the demised premises, whether or not arising out of Tenant’s
use or manner of use thereof, (including Tenant’s permitted
use) or, with respect to the building if arising out of
Tenant’s use or manner of use of the demised premises or the
building (including the use permitted under the lease). Nothing
herein shall require Tenant to make structural repairs or
alterations unless Tenant has, by its manner of use of the demised
premises or method of operation therein, violated any such laws,
ordinances, orders, rules, regulations or requirements with respect
thereto. Tenant may, after securing Owner to Owner’s
satisfaction against all damages, interest, penalties and expenses,
including, but not limited to, reasonable attorney’s fees, by
cash deposit or by surety bond in an amount and in a company
satisfactory to Owner, contest and appeal any such laws,
ordinances, orders, rules, regulations or
requirements provided same is
done with all reasonable promptness and provided such appeal shall
not subject Owner to prosecution for a criminal offense, or
constitute a default under any lease or mortgage under which Owner
may be obligated, or cause the demised premises or any part thereof
to be condemned or vacated. Tenant shall not do or permit any act
or thing to be done in or to the demised premises which is contrary
to law, or which will invalidate or be in conflict with public
liability, fire or other policies of insurance at any time carried
by or for the benefit of Owner with respect to the demised premises
or the building of which the demised premises form a part, or which
shall or might subject Owner to any liability or responsibility to
any person, or for property damage. Tenant shall not keep anything
in the demised premises, except as now or hereafter permitted by
the Fire Department, Board of Fire Underwriters, Fire Insurance
Rating Organization or other authority having jurisdiction, and
then only in such manner and such quantity so as not to increase
the rate for fire insurance applicable to the building, nor use the
demised premises in a manner which will increase the insurance rate
for the building or any property located therein over that in
effect prior to the commencement of Tenant’s occupancy.
Tenant shall pay all costs, expenses, fines, penalties, or damages,
which may be imposed upon Owner by reason of Tenant’s failure
to comply with the provisions of this article, and if by reason of
such failure the fire insurance rate shall, at the beginning of
this lease, or at any time thereafter, be higher than it otherwise
would be, then, Tenant shall reimburse Owner, as additional rent
hereunder, for that portion of all fire insurance premiums
thereafter paid by Owner which shall have been charged because of
such failure by Tenant. In any action or proceeding wherein Owner
and Tenant are parties, a schedule or “make-up” of rate
for the building or the demised premises issued by the New York
Fire Insurance Exchange, or other body making fire insurance rates
applicable to said premises shall be conclusive evidence of the
facts therein stated and of the several items and charges in the
fire insurance rates then applicable to said premises. Tenant shall
not place a load upon any floor of the demised premises exceeding
the floor load per square foot area which it was designed to carry
and which is allowed by law. Owner reserves the right to prescribe
the weight and position of all safes, business machines and
mechanical equipment. Such installations shall be placed and
maintained by Tenant, at Tenant’s expense, in settings
sufficient, in Owner’s judgment, to absorb and prevent
vibration, noise and annoyance.
Subordination:
7. This lease
is subject and subordinate to all ground or underlying leases and
to all mortgages which may now or hereafter affect such leases or
the real property of which the demised premises are a part, and to
all renewals, modifications, consolidations, replacements and
extensions of any such underlying leases and mortgages. This clause
shall be self-operative and no further instrument of subordination
shall be required by any ground or underlying lessor or by any
mortgagee, affecting any lease or the real property of which the
demised premises are a part. In confirmation of such subordination,
Tenant shall from time to time execute promptly any certificate
that Owner may request.
Property
Loss, Damage
Reimbursement Indemnity:
8. Owner or its
agents shall not be liable for any damage to property of Tenant or
of others entrusted to employees of the building, nor for loss of
or damage to any property of Tenant by theft or otherwise, nor for
any injury or damage to persons or property resulting from any
cause of whatsoever nature, unless caused by, or due to, the
negligence of Owner, its agents, servants or employees. Owner or
its agents will not be liable for any such damage caused by other
tenants or persons in, upon or about said building, or caused by
operations in construction of any private, public or quasi public
work. If at any time any windows of the demised premises are
temporarily closed, darkened or bricked up (or permanently closed,
darkened or bricked up, if required by law) for any reason
whatsoever including, but not limited to, Owner’s own acts,
Owner shall not be liable for any damage Tenant may sustain
thereby, and Tenant shall not be entitled to any compensation
therefore, nor abatement or diminution of rent, nor shall the same
release Tenant from its obligations hereunder, nor constitute an
eviction. Tenant shall indemnify and save harmless Owner against
and from all liabilities, obligations, damages, penalties, claims,
costs and expenses for which Owner shall not be reimbursed by
insurance, including reasonable attorneys’ fees, paid,
suffered or incurred as a result of any breach by Tenant,
Tenant’s agents, contractors, employees, invitees, or
licensees, of any covenant or condition of this lease, or the
carelessness, negligence or improper conduct of the Tenant,
Tenant’s agents, contractors, employees, invitees or
licensees. Tenant’s liability under this lease extends to the
acts and omissions of any subtenant, and any agent, contractor,
employee, invitee or licensee of any subtenant. In case any action
or proceeding is brought against Owner by reason of any such claim,
Tenant, upon written notice from Owner, will, at Tenant’s
expense, resist or defend such action or proceeding by counsel
approved by Owner in writing, such approval not to be unreasonably
withheld.
Destruction, Fire and Other
Casualty:
9. (a) If the
demised premises or any part thereof shall be damaged by fire or
other casualty. Tenant shall give immediate notice thereof to
Owner, and this lease shall continue in full force and effect
except as hereinafter set forth. (b) If the demised premises are
partially damaged or rendered partially unusable by fire or other
casualty, the damages thereto shall be repaired by, and at the
expense of, Owner, and the rent and other items of additional rent,
until such repair shall be substantially completed, shall be
apportioned from the day following the casualty, according to the
part of the demised premises which is usable. (c) If the demised
premises are totally damaged or rendered wholly unusable by fire or
other casualty, then the rent and other items of additional rent,
as hereinafter expressly provided, shall be proportionately paid up
to the time of the casualty, and thenceforth shall cease until the
date when the demised premises shall have been repaired and
restored by Owner (or if sooner reoccupied in part by the Tenant
then rent shall be apportioned as provided in subsection (b)
above), subject to Owner’s right to elect not to restore the
same as hereinafter provided. (d) If the demised premises are
rendered wholly unusable or (whether or not the demised premises
are damaged in whole or in part) if the building shall be so
damaged that Owner shall decide to demolish it or to rebuild it,
then, in any of such events, Owner may elect to terminate this
lease by written notice to Tenant, given within ninety (90) days
after such fire or casualty, or thirty (30) days after adjustment
of the insurance claim for such fire or casualty, whichever is
sooner, specifying a date for the expiration of the lease, which
date shall not be more than sixty (60) days after the giving of
such notice, and upon the date specified in such notice the term of
this lease shall expire as fully and completely as if such date
were the date set forth above for the termination of this lease,
and Tenant shall forthwith quit, surrender and vacate the demised
premises without prejudice however, to Landlord’s rights and
remedies against Tenant under the lease provisions in effect prior
to such termination, and any rent owing shall be paid up to such
date, and any payments of rent made by Tenant which were on account
of any period subsequent to such date shall be returned to Tenant.
Unless Owner shall serve a termination notice as provided for
herein, Owner shall make the repairs and restorations under the
conditions of (b) and (c) hereof, with all reasonable expedition,
subject to delays due to adjustment of insurance claims, labor
troubles and causes beyond Owner’s control. After any such
casualty, Tenant shall cooperate with Owner’s restoration by
removing from the demised premises as promptly as reasonably
possible, all of Tenant’s salvageable inventory and movable
equipment, furniture, and other property. Tenant’s liability
for rent shall resume five (5) days after written notice from Owner
that the demised premises are substantially ready for
Tenant’s occupancy. (e) Nothing contained hereinabove shall
relieve Tenant from liability that may exist as a result of damage
from fire or other casualty. Notwithstanding anything contained to
the contrary in subdivisions (a) through (e) hereof, including
Owner’s obligation to restore under subparagraph (b) above,
each party shall look first to any insurance in its favor before
making any claim against the other party for recovery for loss or
damage resulting from fire or other casualty, and to the extent
that such insurance is in force and collectible, and to the extent
permitted by law, Owner and Tenant each hereby releases and waives
all right of recovery with respect to subparagraphs (b), (d), and
(e) above, against the other, or any one claiming through or under
each of them by way of subrogation or otherwise. The release and
waiver herein referred to shall be deemed to include any loss or
damage to the demised premises and/or to any personal property,
equipment, trade fixtures, goods and merchandise located, therein.
The foregoing release and waiver shall be in force only if both
releasors’ insurance policies contain a clause providing that
such a release or waiver shall not invalidate the insurance. If,
and to the extent, that such waiver can be obtained only by the
payment of additional premiums, then the party benefiting from the
waiver shall pay such premium within ten days after written demand
or shall be deemed to have agreed that the party obtaining
insurance coverage shall be free of any further obligation under
the provisions hereof with respect to waiver of subrogation. Tenant
acknowledges that Owner will not carry insurance on Tenant’s
furniture and/or furnishings or any fixtures or equipment,
improvements, or appurtenances removable by Tenant, and agrees that
Owner will not be obligated to repair any damage thereto or replace
the same. (f) Tenant hereby waives the provisions of section 227 of
the Real Property Law and agrees that the provisions of this
article shall govern and control in lieu thereof.
Eminent Domain:
10. If the whole
or any part of the demised premises shall be acquired or condemned
by Eminent Domain for any public or quasi public use or purpose,
then, and in that event, the term of this lease shall cease and
terminate from the date of title vesting in such proceeding, and
Tenant shall have no claim for the value of any unexpired term of
said lease, and assigns to Owner, Tenant’s entire interest in
any such award. Tenant shall have the right to make an independent
claim to the condemning authority for the value of Tenant’s
moving expenses and personal property, trade fixtures and
equipment, provided Tenant is entitled pursuant to the terms of the
lease to remove such property, trade fixtures and equipment at the
end of the term, and provided further such claim does not reduce
Owner’s award.
Assignment, Mortgage,
Etc.:
11. Tenant, for
itself, its heirs, distributees, executors, administrators, legal
representatives, successors and assigns, expressly covenants that
it shall not assign, mortgage or encumber this agreement, nor
underlet, or suffer or permit the demised premises or any part
thereof to be used by others, without the prior written consent of
Owner in each instance. Transfer of the majority of the stock of a
corporate Tenant or the majority interest in any partnership or
other legal entity which is Tenant shall be deemed an assignment.
However this provision shall not apply so long as the Tenant is a
publicly traded company on NASDAQ, AMEX or NYSE. If this lease be
assigned, or if the demised premises or any part thereof be
underlet or occupied by anybody other than Tenant, Owner may, after
default by Tenant, collect rent from the assignee, under-tenant or
occupant, and apply the net amount collected to the rent herein
reserved, but no such assignment, underletting, occupancy or
collection shall be deemed a waiver of this covenant, or the
acceptance of the assignee, undertenant or occupant as tenant, or a
release of Tenant from the further performance by Tenant of
covenants on the part of Tenant herein contained. The consent by
Owner to an assignment or underletting shall not in any way be
construed to relieve Tenant from obtaining the express consent in
writing of Owner to any further assignment or
underletting.
Electric
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