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CONSENT TO SUBLEASE and LEASE EXTENSION AGREEMENT
THIS CONSENT TO SUBLEASE and LEASE EXTENSION AGREEMENT (this “Consent”) made as of this 15 th day of July, 2008, by and between 75 BROAD, LLC , a New York limited liability company, having an office at 150 Broadway, Suite 800, New York, New York 10038 (hereinafter "Owner"), DELTATHREE INC. , a Delaware corporation, having an office at 75 Broad Street, 31 st Floor, New York, New York 10004 (hereinafter "Tenant"), and EMARKETER, INC., a Delaware corporation having an office at 75 Broad Street, 32 nd Floor, New York, New York 10004 (hereinafter "Subtenant").
WHEREAS, Owner and Tenant executed that certain agreement of lease dated as of December 14, 1999 (as amended, February, 2000, hereinafter called the “Lease”), covering certain space presently consisting of the entire rentable area of the 31 st floor and entire rentable area of the 32 nd floor (collectively, the “Premises”), in the building known as 75 Broad Street, in the Borough of Manhattan, City of New York (the “Building”) as more particularly described in the Lease;
WHEREAS, Tenant and Subtenant entered into that certain sublease agreement dated as of August 25, 2003 (whereby Tenant sublet to Subtenant the entire 32 nd floor portion of the Premises) (modified by that certain modification agreement dated September 10, 2003, and which shall be further modified by the Second Sublease Modification (as hereinafter defined), collectively the “Sublease”);
WHEREAS, Tenant now desires to sublet to Subtenant and Subtenant desires to sublet from Tenant the balance (i.e., the entire 31 st floor) of the Premises to Subtenant (the Premises may hereinafter also referred to as the “Sublet Space”) as more particularly described in the second sublease modification to sublease agreement dated July 15, 2008 (the “Second Sublease Modification”) attached hereto as Exhibit A; and
WHEREAS, Owner is willing to grant its consent to the Second Sublease Modification subject to, and in reliance upon, the representations, warranties, covenants, terms and conditions contained herein.
NOW THEREFORE, in consideration of the mutual covenants contained herein and intending to be legally bound hereby as of the date hereof, Owner, Tenant and Subtenant agree as follows:
1. Sublease Subordinate to Lease . The Sublease shall be subject and subordinate at all times to the Lease and to all of the provisions, covenants, agreements, terms and conditions of the Lease and this Consent, and Subtenant shall not do or permit anything to be done in connection with Subtenant's use and occupancy of the Sublet Space which would violate any of said provisions, covenants, agreements, terms and conditions. Any breach or violation of any provision of the Lease or of this Consent by Subtenant shall be deemed to be and shall constitute a default by Tenant in fulfilling such provision. During the term of the Sublease, Subtenant shall duly observe and comply with all of the terms, covenants, agreements, provisions, obligations and conditions on the part of Subtenant to be performed or observed under the Sublease. (All capitalized terms contained herein shall have the meaning ascribed to them in the Lease unless otherwise indicated herein.)
2. Representations and Warranties . Tenant and Subtenant represent and warrant that no rent or other consideration is being paid or payable to Tenant by Subtenant for the right to use or occupy the Sublet Space or for the use, sale or rental of Tenant's fixtures, leasehold improvements, equipment, furniture or other personal property in excess of the amount of rent stated in the Sublease. Tenant and Subtenant further represent and warrant that the Sublease is the complete, true and correct agreement between the parties.
3. No Amendment of Sublease, Waiver . Tenant and Subtenant agree that they shall not change, modify or amend, cancel or terminate the Sublease or enter into any additional agreements relating to or affecting the use or occupancy of the Sublet Space or the use, sale or rental of Tenant's fixtures, leasehold improvements, equipment, furniture or other personal property, without first obtaining Owner's prior written consent thereto. Neither this Consent, the Sublease, the Lease, nor any acceptance of rent or other consideration from Subtenant by Owner, or Owner's agent shall operate to waive, modify, impair, release or in any manner affect Tenant's liability under the Lease or Subtenant's liability under the Sublease, nor shall the foregoing operate to waive any breach or violation of any provision of the Lease or any rights of Owner against any person, firm, association, corporation or other entity liable or responsible for the performance of any of the provisions, covenants, agreements, terms or conditions contained in the Lease, nor shall the foregoing enlarge or increase Owner's obligations or Tenant's rights or diminish Tenant's obligations under the Lease or otherwise; and all provisions, covenants, agreements, terms and conditions of the Lease are hereby declared by Tenant to be in full force and effect. No assignment of the Lease or Sublease or further sublease of all or part of the Premises or the Sublet Space shall be made by Tenant or Subtenant, without the prior written approval of Owner pursuant to and in accordance with the provisions of the Lease and the Sublease.
4. Ratification of Sublease . Nothing contained herein shall be construed as a consent to, or approval of, or ratification by Owner of any of the particular provisions of the Sublease or as a representation or warranty by Owner. Owner shall not be bound or estopped in any way by the provisions of the Sublease. By executing and delivering this Consent, Owner shall not be deemed to have modified or waived any of Tenant's obligations arising under or with respect to the Lease, except as expressly set forth herein.
5. Remedies for Default . In the event of any default by Tenant or Subtenant in the full performance and observance of any of their respective obligations hereunder or in the event any representation or warranty of Tenant or Subtenant made herein shall prove to be false or misleading in any material respect, such event may, at Owner's option, be deemed a default under the Lease, and Owner shall have the right to and may pursue all of the rights, powers and remedies provided for in the Lease or at law or in equity or by statute or otherwise with respect to defaults.
6. Use . Subject to and in accordance with all of the provisions, covenants, agreements, terms and conditions of the Lease, the Sublet Space shall be used by Subtenant for the purposes set forth in applicable sections or use clauses in the Lease, and for no other purpose. Owner consents to the use of the Premises as set forth in the Sublease Modification Agreement dated September 10, 2003: i.e., “general and executive offices in connection with the business conducted by Subtenant and its permitted subtenants and assignees, and for no other purpose.”
7. Termination; Attornment; Nondisturbance . A. If at any time prior to the expiration date or any earlier termination of the Lease, the term of the Lease with respect to the Sublet Space shall terminate or be terminated for any reason whatsoever and provided Subtenant is in default under the Sublease, the Sublease and the term thereof shall terminate on or prior to the day of such termination and Subtenant, at Subtenant's sole cost and expense, shall (i) quit and surrender the Sublet Space to Owner, broom clean, in good order and condition, ordinary wear and tear and damage for which Subtenant is not responsible for under the terms of the Sublease excepted, (ii) remove from the Sublet Space and the Building all of Subtenant's personal property and all other property and effects of Subtenant and all persons claiming through or under Subtenant, and (iii) repair all damage to the Sublet Space and the Building occasioned by such removal and otherwise as required by the Lease. Except as otherwise provided in the Lease, Owner shall have the right to retain any property and personal effects which shall remain in the Sublet Space or the Building, on the date of termination of the Sublease, without any obligation or liability to Tenant or Subtenant, and to retain any net proceeds realized from the sale thereof, without waiving Owner's rights with respect to any default by Subtenant under the foregoing provisions of this paragraph and the provisions of the Lease and Sublease. If Subtenant shall fail to vacate and surrender the Sublet Space in accordance with the provisions of this paragraph, Owner shall be entitled to all of the rights and remedies which are available to an owner against a tenant holding over after the expiration of a term of a lease, including, without limitation, collecting the sum set forth in S