Exhibit 10.4
SPACELY LLC
000 XXXX XXXXXX
XXX XXXX, XXX XXXX 00000
As of June 27, 2002
PWR Systems, Inc.
0000 Xxxxxxxx Xxxxxxxx Xxxxxxx
Xxxxxxx, Xxx Xxxx 00000
Re: Lease dated as of the 15th day of December, 2001, between
Spacely LLC, as landlord (referred to herein as "Owner"), and
PWR Systems, Inc., as tenant (referred to herein as
"Tenant"), affecting a portion of the Digital Building known
as Suite T-115 (the "Demised Premises") and located at 0000
Xxxxxxx Xxxxxxx (a/k/a known as the Long Island Business and
Technology Center), Islip, New York (referred to as the
"Building"; said lease, as modified by various written
agreements, if any, is collectively referred to herein as the
"Lease")
Gentlemen:
This letter (this "Letter Agreement") is written to set forth our
understandings with respect to the Lease, as follows:
WHEREAS:
1. Tenant has informed Owner that it is desirous of amending the Lease
so as to permit Tenant to install three (3) satellite dishes on the roof of the
Building, and, accordingly, has requested that Owner to enter into this Letter
Agreement;
2. Tenant acknowledges and agrees that, as of the date hereof, Tenant
is in arrears in its monthly payments of Fixed Rent and additional rent in the
aggregate amount of $15,436.28 (the "Arrears"), which are due and owing to Owner
under the Lease; and
3. Owner is agreeable to entering into this Letter Agreement, on the
condition that (i) Xxxxxxx XxXxxxxx, the President and CEO of Tenant, executes
this Letter Agreement as the hereinafter defined "Guarantor", and (ii) Tenant
pays the Arrears to Owner in accordance with the provisions of the Letter
Agreement;
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NOW, THEREFORE, in consideration of the premises and in order to
induce Owner to amend the Lease and to enter into this Letter Agreement, the
parties hereto hereby agree as follows:
FIRST: The Lease is hereby modified as follows:
A. The following language shall be inserted immediately prior to
the word "Alterations." in Article FOURTH of the Lease:
"SECTION 4.01"; and
B. The following new Section 4.02 shall be added to and become
part of Article FOURTH of the Lease:
"SECTION 4.02. A. Installation, Maintenance, Operation and Repair
of Tenant's Satellite Equipment. Subject to Tenant's compliance
with the provisions of this Subdivision A, Tenant may, subject to
the provisions of this Lease, install, maintain, upgrade,
operate, repair and replace on the roof of the Building three (3)
satellite dishes of Tenant, each approximately one (1) meter in
diameter (referred to herein, collectively, as the "Dishes", and
together with the hereinafter defined "Tenant's Connecting
Equipment" and the "Tenant's Future Equipment", sometimes
referred to herein, collectively, as "Tenant's Satellite
Equipment"). In the event that Tenant seeks to install such
Tenant's Satellite Equipment, Tenant shall make a written request
for Owner's consent to the installation of Tenant's Satellite
Equipment. Such request shall include detailed plans and
specifications of the proposed Tenant's Satellite Equipment, its
placement on the roof of the Building (including the method of
installation and the proposed location of Tenant's cables,
conduits and wires (referred to herein as "Tenant's Connecting
Equipment") connecting such Dishes to equipment in the Demised
Premises running through conduits, pipes or shafts in the
Building, the exact location of which shall be designated by
Owner. If Owner determines, in Owner's sole judgment, that there
is such room, then Tenant shall have the right to install
Tenant's Satellite Equipment on the roof of the Building, the
exact location of which shall be approved by Owner. All of the
foregoing installations of Tenant's Satellite Equipment shall be
made at Tenant's sole cost and expense and in accordance with all
the provisions of this Lease, including, but not limited to, the
provisions of this Article FOURTH and Article ELEVENTH. Owner
shall have no responsibility for the maintenance and repair of
Tenant's Satellite Equipment and Tenant, at Tenant's sole cost
and expense, shall keep all said installations of Tenant's
Satellite Equipment in good condition and make all necessary
repairs and replacements thereto and to the Building occasioned
thereby. Tenant, at Tenant's
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cost and expense, shall repair any damage to the Building
occasioned by the installation, maintenance, relocation or
removal of such Tenant's Satellite Equipment. Tenant further
agrees that the maintenance and operation of Tenant's Satellite
Equipment shall comply with the provisions of Article ELEVENTH
hereof, including, but not limited to, all Legal Requirements.
The installation of Tenant's Satellite Equipment shall be made on
behalf of Tenant by a contractor or contractors designated by
Tenant and approved by Owner, which approval shall not be
unreasonably withheld, conditioned or delayed. Tenant further
understands and agrees that the aesthetic characteristics of the
Building are of significant commercial importance to Owner and,
therefore, Tenant shall ensure that the installed appearance of
Tenant's Satellite Equipment will be subject to Owner's prior
written approval.
B. End of Term. Upon the Expiration Date or sooner
termination of the Demised Term, Tenant, at Tenant's sole cost
and expense, shall remove such installations and make all repairs
to the Building occasioned by such removal. If Owner elects,
however, to have Tenant's Connecting Equipment remain in the
Demised Premises, such installations shall remain in the Demised
Premises at no cost and expense to Owner. Tenant's Satellite
Equipment and any associated future installations (referred to
herein as "Tenant's Future Equipment") shall be subject to such
conditions with respect to the installation, operation and
maintenance thereof as may reasonably be imposed by Owner,
including, but not limited to, those conditions set forth in
Subdivision A of this Section 4.02.
C. (1) No Interference/Shutdown. Tenant agrees
that Tenant's ------------------------
Satellite Equipment shall be designed,
operated, installed and maintained in such a
manner that it shall not (i) interfere with
any other then existing telecommunication
equipment on or in the Building, or (ii)
interfere or threaten to interfere with the
use of the roof of the Building, or if
applicable "set-back", or any other part of
the Building by Owner or any tenant,
licensee, user or occupant of the Building,
including the operation of communication or
computer equipment by such person or (iii)
create or threaten to create any danger to
the health and safety of persons or the
Building or to the environment and all other
tenants of the Building shall be deemed third
party beneficiaries of the foregoing
provision with the right to enforce the same.
For the purpose hereof, such interference
shall include (i) any electrical,
electromagnetic or radio frequency
interference, (ii) any restrictions or
limitation of any space tenants in the
Building to conduct their business therein or
use or occupy their space, or (iii) the needs
of other space
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tenants in the Building. If, in the judgment
of Owner, any such interference or danger
shall occur or might occur as a result of the
operation of Tenant's Satellite Equipment,
then Tenant shall promptly correct or cure
such situation at Tenant's sole cost and
expense including Tenant's promptly ceasing
operation and use of Tenant's Satellite
Equipment (except for intermittent testing on
a schedule approved by Owner) until the
interference or emergency situation has been
corrected to the satisfaction of Owner.
If Tenant shall fail to promptly remedy or
cure such interference, whether by shutting
down of Tenant's Satellite Equipment or
otherwise, then, Owner may act, at Tenant's
cost and expense, to shut down Tenant's
Satellite Equipment to eliminate such
interference and/or correct such emergency
situation and Owner shall have no liability
to Tenant as a result thereof. Any such sums
due Owner from Tenant pursuant to the
provisions of this Section shall be deemed
added to the Fixed Rent and shall be deemed
additional rent, paid and collectable as part
of such Fixed Rent and such obligation of
Tenant shall survive the termination or
cancellation of this Lease.
(2) Owner's Relocation Right. Owner reserves
the absolute right (referred to herein as
"Owner's Relocation Right") to require that
Tenant shall relocate Tenant's Satellite
Equipment, or any item thereof, to another
location in or on the Building. In the event
that such relocation is requested by Owner
and/or is required by any Legal Requirement
or Governmental Authority, then Tenant shall,
at Tenant's cost and expense, relocate
Tenant's Satellite Equipment to such new
location on or before the date set forth in
Owner's notice to Tenant of such relocation
provided that such date shall not be earlier
than thirty (30) days of the date of Owner's
notice to Tenant exercising such Owner's
Relocation Right.
(3) No Owner Responsibility. Owner shall have
no responsibility with respect to any
interference with Tenant's Satellite
Equipment. Any interference with Tenant's
Satellite Equipment shall not be deemed to
constitute an actual or constructive
eviction, in whole or in part, or entitle
Tenant to any abatement or diminution of
rent, or relieve Tenant from any of its
obligations under this Lease, or impose any
liability upon Owner or its agents by reason
of inconvenience or annoyance to Tenant, or
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injury to or interruption of Tenant's
business or otherwise. Notwithstanding any
right of election on Owner's part to have
Tenant's Connecting Equipment remain in the
Demised Premises as hereinabove set forth,
all other Tenant's Satellite Equipment shall,
for all other purposes of this Lease, be
deemed Tenant's Personal Property.
D. Use. Tenant (or Tenant's agents, as approved or
authorized by Owner) shall use Tenant's Satellite Equipment
solely for purposes of providing communications services used
in the operation of Tenant's business activities as "general
offices and computer center for its information technology
business". Tenant shall have no right to use Tenant's
Satellite Equipment for any other purpose. Without limiting
the aforesaid, Tenant is expressly forbidden to use Tenant's
Satellite Equipment to provide telecommunications services to
any other person or entity. Tenant acknowledges and agrees
that Owner may grant similar rights or licenses to other
communication companies or tenants of the Building to place
similar telecommunications equipment next to Tenant's
Satellite Equipment on or in the Building.
E. Electricity. Electricity for the use and operation
of Tenant's Satellite Equipment shall be provided and charged
in the same manner as set forth in Section 6.01 of the Lease,
provided, however, Owner shall have no obligation to provide
any other utilities for the operation of Tenant's Satellite
Equipment and Owner makes no representation as to the
availability of such utilities.
F. Access. Tenant and Tenant's representatives,
approved and authorized by Owner in advance, shall have access
to Tenant's Satellite Equipment (x) during regular business
hours, if access is not obtained through other tenant spaces
of the Building or (y) after regular business hours, if access
is obtained solely through other tenant spaces of the Building
upon reasonable advance notice to Owner, and, in the event of
an emergency with respect to Tenant's Satellite Equipment,
upon such advance notice as is reasonably practicable under
the circumstances. Such access by Tenant shall be subject in a
manner as Owner shall reasonably designate with respect to
safety and to prevent interference with the use and operation
of the Building by Owner and the other tenants or occupants
thereof."
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SECOND: In consideration of Owner permitting Tenant to install
Tenant's Satellite Equipment, the Fixed Rent reserved in the Lease shall be
increased by the sum of FIVE THOUSAND and 00/100 ($5,000.00) DOLLARS per annum
from the date of this Letter Agreement to the Expiration Date or sooner
termination of the Demised Term, and the monthly installments of Fixed Rent
shall be increased accordingly by the sum of FOUR HUNDRED SIXTEEN and 67/100
($416.67) DOLLARS to conform with such increase in the Fixed Rent.
THIRD: Tenant agrees that, from and after the date of this Letter
Agreement, Tenant shall pay to Owner (in addition to the Fixed Rent and
additional rent due and payable under the Lease), on or before the fifteenth
(15th) day of each calendar month, the amount of THREE THOUSAND THREE HUNDRED
TWENTY-ONE AND 76/100 ($3,321.76) DOLLARS (the "Monthly Arrears Installments"),
on account of, and to be applied towards the reduction of, the Arrears. Owner
shall apply such Monthly Arrears Installments towards the reduction of the then
remaining outstanding Arrears until such time as the Arrears have been paid in
full. In the event that the last Monthly Arrears Installment paid by Tenant
results in an over payment of the then outstanding Arrears, Owner shall apply
such "overpaid" amount towards the next accruing installment of Fixed Rent. The
Monthly Arrears Installments shall be collectable in the same manner as Fixed
Rent, and Owner shall have (i) all of the rights and remedies under the Lease
and at law to collect same as Fixed Rent, and (ii) the right to find an Event of
Default to have occurred under the Lease in the event that Tenant fails to
timely pay any Monthly Arrears Installment as aforesaid.
FOURTH: Capitalized terms in this Letter Agreement shall have the
same meaning ascribed to them in the Lease, unless otherwise noted herein.
FIFTH: Tenant represents and warrants to Owner that no broker was
responsible for bringing about this Letter Agreement.
SIXTH: Except to the extent expressly modified by the provisions
of this Letter Agreement, the Lease is hereby ratified and confirmed in all
respects.
[SIGNATURE PAGE IMMEDIATELY FOLLOWS]
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Please execute a copy of this letter agreement at the foot
thereof to confirm your agreement with all of the foregoing.
Very truly yours,
SPACELY LLC, OWNER
By: Xxxxx LITC Associates, Managing Member
By:/s/ Xxxxxxx X. Xxxxx
------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Member
ACCEPTED AND AGREED:
PWR SYSTEMS, INC., TENANT
By: /s/ Xxxxxxx XxXxxxxx
-------------------------
Name: Xxxxxxx XxXxxxxx
Title: CEO
