EXHIBIT 10.13
EXACT ADVERTISING, LLC
OFFICE SERVICE AGREEMENT
This Agreement is dated __________, 2005 and is entered into between eXact
Advertising, LLC ("eXact") and Ad.Venture Partners, Inc. ("Client").
eXact and Client agree that eXact will provide to Client for and in
consideration of the fees set forth herein, an exclusive license to use the
offices as provided herein below and, in common with eXact's other clients, the
non-exclusive license to use eXact's facilities and services as outlined below.
1. BASIC TERMS.
A. Monthly Fixed Fee for Base Services (as defined in Section 2
below): $2,000.00
B. Monthly Fixed Fee for Office Services (as defined in Section 3
below): $5,500.00
C. Facilities: ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇ (the "Building")
D. Number of offices in the Building: 2 (the "Offices")
E. Maximum Occupancy: 1 per office
F. Term: from the effective date of Client's proposed initial
public offering of its units pursuant to Client's Registration
Statement on Form S-1 as filed with the Securities and
Exchange Commission on April 18, 2005, as amended (such
Registration Statement, the "Registration Statement" and such
date, the "Effective Date") until the earlier of Client's
(i) failure to enter into a letter of intent, definitive
agreement or agreement in principle with respect to a Business
Combination (as defined in the Registration Statement) on any
day during the eighteen-month period immediately following the
Effective Date, and (ii) the failure to consummate a Business
Combination on any day during the twenty-four-month period
immediately following the Effective Date (the "Term")
2. BASE SERVICES. Client shall be provided with the exclusive use of the
Offices and shall have access to the Offices twenty-four (24) hours a day, seven
(7) days a week. In exchange for the Monthly Fixed Fee for Base Services, eXact
agrees to provide the following base services: office cleaning, maintenance
services, office supplies, electricity, heating and air conditioning to the
Offices (the "Base Services"). In addition, Client will have reasonable use of
eXact common area facilities. Client shall use the Offices and auxiliary areas
of the facilities solely for general office use in the conduct of the Client's
business.
If for any reason whatsoever, eXact is unable to deliver possession of the
Offices or a mutually agreed upon alternative office at the time herein agreed,
Client may either extend the Commencement Date until the Offices become
available or, as its sole remedy for such failure, cancel and terminate this
Agreement if the Offices are not delivered to Client within five (5) business
days after written notice to eXact by Client, in which case any prior payments
shall be fully refunded. No such failure to deliver possession shall subject
eXact to any liability for loss or damage, nor affect the validity of this
Agreement or the obligations of the Client hereunder.
In order to accommodate the needs of potential multiple office clients,
eXact will have the right, upon ten (10) days' written notice, to relocate
Client to other offices in the Building and to substitute such other offices for
the Offices contracted herein, provided such other offices are substantially
similar in area and configuration to Client's contracted offices and provided
Client shall incur no increase in the total monthly fee or any relocation cost
or expense.
3. OFFICE SERVICES. eXact agrees, in exchange for a Monthly Fixed Fee for
Office Services (which fee is in addition to the Monthly Fixed Fee for Base
Services), to provide the following office services: administrative support,
including, but not limited to, information technology, legal, secretarial and
bookkeeping services as well as communications services such as unlimited use of
Internet/Data, telephone, fax and photocopier (the "Office Services").
Client will not offer to any party in the eXact Building any of the
services which eXact provides to Client.
eXact will answer all incoming phone calls, unless otherwise mutually
agreed, during normal business hours, as reasonably determined by eXact.
Client acknowledges that due to the imperfect nature of verbal, written
and electronic communications, eXact shall not be responsible for damages,
direct or consequential, which may result from the failure of eXact to furnish
any service, including but not limited to the conveying of messages,
communications and other utilities or services required under this Agreement.
Client expressly agrees to waive the right 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. After expiration of the Term, the Agreement will
automatically terminate. Prior to expiration of the term, either party may
terminate the Agreement upon 30 days' advance written notice to the other party.
5. PAYMENTS. The monthly invoices/statements for the Monthly Fixed Fee for
Base Services and the Monthly Fixed Fee for Office Services will be billed in
advance. Statements will be placed in the mailbox or faxed to Client on the
first day of each month with payments due by the fifth day of each month. If the
term shall not commence on the first day of a month or end on the last day of a
month, fees for any such month shall be prorated. All amounts payable hereunder
shall be payable at the office of eXact or to such other location or to any
agent designated in writing by eXact.
6. DAMAGES AND INSURANCE. Client will not damage or deface the
furnishings, walls, floors or ceiling. Client will not cause damage to any part
of the facilities or the Building or disturb the quiet enjoyment of any other
licensee or occupant of the Building nor suffer to be made any waste,
obstruction or unlawful, improper or offensive use of the Offices or the common
area facilities. At the termination of this Agreement, Client will return the
Offices in as good of condition as when Client took possession, though normal
wear and tear shall be expected. eXact shall have the right to show the Offices
to prospective clients, provided eXact will use reasonable efforts not to
disrupt Client's business.
eXact and its respective directors, licensors, officers, agents, servants
and employees shall not, to the extent permitted by law, except upon the
affirmative showing of eXact'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 eXact facilities or the Building. Without limitation of any other
provision hereof, Client agrees to indemnify, defend, protect and hold eXact and
its respective directors, licensors, officers, agents, servants and employees
harmless from and against all liability to third parties arising out of Client's
use and occupancy of the Offices or actions or omissions of Client and its
agents, employees, contractors, and invitees. Client further agrees that all
personal property of Client, its agents, employees, contractors, and invitees,
within or about the eXact facilities of the Building shall be at the sole risk
of Client.
eXact and Client each hereby waive any and all rights of recovery against
each other, or against the officers, employees, agents or representatives 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 eXact 's Building or facilities are made unusable, in whole or in part
by fire or other casualty not due to the negligence of Client, eXact 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 eXact facilities, without expense to
Client, within ninety (90) days or within such longer period of time as may be
required because of events beyond eXact 's control. The Monthly Fixed Fee for
Base Services and the Monthly Fixed Fee for Office Services shall be abated on a
pro rata basis for the period of time the Offices are unusable.
7. DEFAULT. The Client shall be deemed to be in default under this
Agreement: (a) if Client fails to pay the Monthly Fixed Fee for Base Services or
Monthly Fixed Fee for Office Services, (b) if Client fails to promptly and fully
perform any other provisions of this Agreement and any such default continues in
excess of five (5) business days after written notice by eXact, or (c) if Client
fails to comply with the laws or permit licensing rules and other
requirements regulating the conduct of Client's business. Should Client be in
default hereunder, eXact may terminate any or all of the services for the period
of such default.
8. MISCELLANEOUS.
A. This is the only Agreement between the parties. All amendments to
this Agreement shall be in writing and signed by all parties. Any 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.
eXact's failure to enforce any provision of this Agreement or its acceptance of
fees shall not be a waiver and shall not prevent eXact from enforcing any
provisions of this Agreement in the future. No receipt of money by eXact shall
be deemed to waive any default of Client or to extend, reinstate or continue the
term hereof.
C. In regard to the trust account that will hold substantially all
of the offering proceeds the Client expects to raise from the initial public
offering of its units (the "Trust Account"), eXact hereby waives any right of
recourse against the Trust Account and agrees not to seek reimbursement, payment
or satisfaction of any claim against the Trust Account.
D. The laws of the State of New York shall govern this Agreement.
E. Client represents and warrants to eXact that there are no agents,
brokers, finders or other parties 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 Offices or
the eXact Building or facilities by any person other than Client.
G. All notices hereunder shall be in writing. Notices to Client
shall be deemed to be duly given if hand-delivered to Client's mailbox in the
eXact facilities at ▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇. Notice to
eXact shall be deemed to be duly given if mailed by registered or certified
mail, postage prepaid, to ▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
H. The Client acknowledges that eXact 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.
I. eXact may assign this Agreement and/or any fees hereunder and
Client agrees to attorn any such assignee.
J. Notwithstanding anything to the contrary contained herein, Client
shall look solely to the interest of eXact in the Master Lease for the
satisfaction of any of Client's remedies with regard to the payment of money or
otherwise and no other property or assets of eXact shall be subject to levy,
execution or other enforcement procedures for the satisfaction of Client's
remedies or with respect to this Agreement, the relationship of the parties
hereunder or Client's use of the Premises, such exculpation of personal
liability to be absolute.
K. eXact shall not be liable for any interruption or error in the
performance of its services to Client. Client waives any recourse against eXact
arising from the provision of such services, including, without limitation, any
claim of business interruption or for any indirect, incidental, special,
consequential or punitive damages, except for claims arising out of willful
misconduct by eXact.
L. eXact will not be liable for any claim of business interruption
or for any indirect, incidental, special, consequential, exemplary or punitive
damages arising out of any failure to furnish any service or facility, any error
or omission with respect thereto, or any delay or interruption of the same.
M. eXact and its agents will have the right of access to the Offices
and the eXact Building and facilities at any time for the purpose of (i) making
any repairs, alterations and/or inspections that it deems necessary
in its sole discretion for the preservation, safety or improvements of the
facilities, or (ii) to show the facilities to prospective Clients without in any
way being deemed or held to have committed an eviction (constructive or
otherwise) of or trespass against Client.
N. Failure of eXact to insist upon the strict performance of any
term or condition of this Agreement or to exercise any right or remedy available
for a breach thereof, or acceptance of full or partial payment during the
continuance of any such breach, will not constitute a waiver of any such breach
or any such term or condition. No term or condition of this Agreement required
to be performed by Client and no breach thereof, will be waived, altered or
modified, except by a written instrument executed by eXact.
O. Client will comply with and be bound by all provisions of the
Master Lease and, subject to the limitations listed above in Section 7, Client
will indemnify and hold eXact harmless from and against any claim or liability
under the Master Lease arising from Client's breach of the Master Lease or this
Agreement.
AD.VENTURE PARTNERS, INC. EXACT ADVERTISING, LLC
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ Will Margiloff
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Title Chief Executive Officer Title Chief Executive Officer
Date: Date: