EXHIBIT 10.40
AGREEMENT OF LEASE, made as of this 14 day of JUNE, 2000, between XXXXX BEAR
REALTY CORP., having an address at:
_____________________________________________, party of the first part,
hereinafter referred to as OWNER, and LOUDEYE TECHNOLOGIES, INC. party of the
second part, hereinafter referred to as TENANT, having an office at 000 Xxxx
00xx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx.
WITNESSETH: Owner hereby leases to Tenant, and Tenant hereby hires from Owner
the entire Fourth (4th) Floor in the building known as 000 Xxxx 00xx Xxxxxx in
the Borough of Manhattan, City of New York, for the term of five (5) years (or
until such term shall sooner cease and expire as hereinafter provided) to
commence on the _______ day of June, TWO THOUSAND, and to end on the _______ day
of May, TWO THOUSAND AND FIVE, both dates inclusive, at an annual rental rate of
[SEE RIDER, Paragraph 3 attached hereto and made a part hereof] 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 set off or deduction whatsoever, except that Tenant shall pay the first
monthly ________________ installment(s) on the execution hereof [A].
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 payable 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:
Occupancy: 1. Tenant shall pay the rent as above and as hereinafter provided.
Use: 2. Tenant shall use and occupy demised premises for any use
permitted by 450 West Owners Corp. provided such use is in accordance with the
Certificate of Occupancy for the building, if any, and for not other purposes.
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, [3A] 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 using
contractors or mechanics first approved by Owner. [3B] Tenant shall, at its
expense, before making any alterations, additions, installations or improvements
obtain all permits, approval 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. Tenant agrees to carry and will cause Tenant's
contractors and sub-
contractors to carry such xxxxxxx'x compensation, general liability, personal
and property damage insurance as Owner may require. 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 filing the bond
required by law or otherwise. All fixtures and all paneling, partitions,
railings and like installations, installed in the 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. [3C] 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 any such from the premises
or upon removal of other installations as may be required by Owner [3D], Tenant
shall immediately and at its expense, repair and restore the premises to the
condition existing prior to installation [3E] and repair any damage to the
demised premises or the building due to such removal. All property [3F] by
Tenant at the end of the term remaining in the premises after [3G] shall be
deemed abandoned and may, at the election of Owner, either be retained as
Owner's property or removed from the premises by Owner, at Tenant's expense.
Repairs: 4. Owner shall maintain and repair the exterior of and the public
portions of the building. Tenant shall, throughout the term of this lease, take
good care of the demised premises including the bathrooms and the lavatory
facilities (if the demised premises encompass the entire floor of the building)
and the windows and window frames and, the fixtures and appurtenances therein
and at Tenant's sole cost and expense promptly make all repairs thereto and to
the building, whether structural or non-structural in nature, caused by or
resulting from the carelessness, omission, neglect or improper conduct of
Tenant. Tenant's servants, employees, invitees, or licensees, and whether or not
arising from such Tenant conduct or omission, when required other provisions of
this lease, including Article 6. Tenant shall also repair all damage to the
building and the demised premises caused by the moving of Tenant's fixtures,
furniture or equipment. All the aforesaid repairs shall be of quality or class
equal to the original work or construction. If Tenant fails, after ten [4A] days
notice, to proceed with due diligence to make repairs required to be made by
Tenant, the same may be made by the Owner at the expense of Tenant, and the
expenses thereof incurred by Owner shall be collectible, as additional rent,
after rendition of a xxxx or statement therefor. If the demised premises be or
become infested with vermin, Tenant shall, at its expense, cause the same to be
exterminated. Tenant shall give Owner prompt notice of any defective condition
in any plumbing, heating system or electrical lines located in the demised
premises and following such notice, Owner shall remedy the condition with due
diligence, but at the expense of Tenant, if repairs are necessitated by damage
or injury attributable to Tenant, Tenant's servants, agents, employees, invitees
or licensees as aforesaid. Except as specifically provided in Article 9 or
elsewhere in this lease, there shall be no allowance to the Tenant for a
diminution of rental value and no liability on the part of Owner by reason of
inconvenience, annoyance or injury to business arising from Owner, Tenant or
others making or
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failing to make any repairs, alterations, additions or improvements in or to any
portion of the building or the demised premises of in and to the fixtures,
appurtenances or equipment thereof. [4B] The provisions of this Article 4 with
respect to the making of repairs shall not apply in the case of fire or other
casualty with regard to which Article 9 hereof shall apply.
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 New York State 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 shall at Tenant's sole cost and expense, 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, or the 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, 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 lease). Except as provided in
Article 30 hereof, 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 therein. 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. Tenant shall not keep anything in the demised premises except
as or hereafter permitted by the Fire Department, Board of Fire Underwriters,
Fire Insurance Rating Organizations and 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 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. If
by reason of failure to comply with the foregoing, 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 proceedings wherein Owner and Tenant are parties, a schedule or "make-
up" or rate for the building and demised premises issued by a 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 [6B] 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 [6C] judgment,
to absorb and prevent vibration, noise and annoyance.
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See Proprietary Lease.
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 shall not be liable for any damage caused by other tenants or persons in,
upon or about said building or caused by operations in connection 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
therefor nor 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 attorney's 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 sub-tenant, and any agent,
contractor, employee, invitee or licensee of any sub-tenant. 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 proceedings by counsel approved by Owner in writing, such approval not
to be unreasonably withheld. [8A]
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,
until such repair shall be substantially completed, shall be apportioned from
the day following the casualty according to the part of the premises which is
usable. (c) If the demised premises are totally damaged or rendered wholly
unusable by fire or other casualty, then the rent shall be proportionately paid
up to the time of the casualty and thenceforth shall cease until the date when
the premises shall have been repaired and restored by Owner, 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
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of such events, Owner may elect to terminate this lease by written notice to
Tenant, given within 90 days after such fire or casualty, specifying a date for
the expiration of the lease, which date shall not be more than 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 premises without prejudice however, to Owner'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 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)) [9A] days after written notice from Owner that the 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 the foregoing, 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 against the other or any one claiming through or under each of them by
way of subrogation or otherwise. 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 benefitting 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.
Equipment 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.
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. [11A]
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[11B] 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, under-tenant 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 wise be construed to relieve Tenant from obtaining
the express consent in writing of Owner to any further assignment or
underletting.
Electric Current: 12. Rates and conditions in respect to submetering or rent
inclusion, as the case may be, to be added in RIDER attached hereto. Tenant
covenants and agrees that at all times its use of electric current shall not
exceed the capacity of existing feeders to the building or the risers or wiring
installation and Tenant may not use any electrical equipment which, in Owner's
opinion, reasonably exercised, will overload such installations or interfere
with the use thereof by other tenants of the building.
Access to Premises: 13. Owner or Owner's agents shall have the right (but shall
not be obligated) to enter the demised premises in any emergency at any time,
and, at other reasonable times, to examine the same and to make such repairs,
replacements and improvements as Owner may deem necessary and reasonably
desirable to any portion of the building or which Owner may elect to perform in
the premises after Tenant's failure to make repairs or perform any work which
Tenant is obligated to perform under this lease, or for the purpose of complying
with laws, regulations and other directions of governmental authorities. Tenant
shall permit Owner to use and maintain and replace pipes and conduits in and
through the demised premises and to erect new pipes and conduits therein
provided, wherever possible, they are within walls or otherwise concealed. Owner
may, during the progress of any work in the demised premises, take all necessary
materials and equipment into said premises without the same constituting an
eviction nor shall the Tenant be entitled to any abatement of rent while such
work is in progress nor to any damages by reason of loss or interruption of
business or otherwise. Through the term hereof Owner shall have the right to
enter the demised premises at reasonable hours for the purpose of showing the
same to prospective purchasers or mortgagees of the building, and during the
last six months of the term for the purpose of showing the same to prospective
tenants and may, during said six months period, place upon the premises the
usual notices "To Let" and "For Sale" which notices Tenant shall permit to
remain thereon without molestation. If Tenant is not present to open and permit
an entry in the premises, Owner or Owner's agents may enter the same whenever
such entry may be necessary or permissible by master key or forcibly and
provided reasonable care is exercised to safeguard Tenant's property, such entry
shall not render Owner or its agents liable therefore, nor in any event shall
the obligations of Tenant hereunder be affected. If during the last month of the
term Tenant shall have removed all or substantially of Tenant's property
therefrom, Owner may immediately enter, alter, renovate or redecorate the
demised premises without limitation or abatement of rent, or incurring liability
to Tenant for any
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compensation and such act shall have no effect on this lease or Tenant's
obligations hereunder. [13A]
Vault, Vault Space, Area: 14. No Vaults, vault space or area, whether or not
enclosed or covered, not within the property line of the building is leased
hereunder, anything contained in or indicated on any sketch, blue print or plan,
or anything contained elsewhere in this lease to the contrary notwithstanding.
Owner makes no representation as to the location of the property line of the
building. All vaults and vault space and all such areas not within the property
line of the building, which Tenant may be permitted to use and/or occupy, is to
be used and/or occupied under a revocable license, and if any such license be
revoked, or if the amount of such space or area be diminished or required by any
federal, state or municipal authority or public utility, Owner shall not be
subject to any liability nor shall Tenant be entitled to any compensation or
diminution or abatement of rent, nor shall such revocation, diminution or
requisition be deemed constructive or actual eviction. Any tax, fee or charge of
municipal authorities for such vault or area shall be paid by Tenant, if used by
Tenant, whether or not specifically leased hereunder.
Occupancy: 15. Tenant will not at any time use or occupy the demised premises
in violation of [15A] the certificate of occupancy issued for the building of
which the demised premises are a part. Tenant has inspected the premises and
accepts them as is, subject to the riders annexed hereto with respect to Owner's
work, if any. In any event, Owner makes no representation as to the condition of
the premises and Tenant agrees to accept the same subject to violations, whether
or not of record. [15B] If any government license or permit shall be required
for the proper and lawful conduct of Tenant's business, Tenant shall be
responsible for and shall procure and maintain such license or permit.
Bankruptcy: 16. (a) Anything elsewhere in this lease to the contrary
notwithstanding, this lease may be cancelled by Owner by sending of a written
notice to Tenancy within a reasonable time after the happening of any one or
more of the following events: (1) the commencement of a case in bankruptcy or
under the laws of any state naming Tenant as the debtor; [16A] or (2) the making
by Tenant of an assignment or any other arrangement for the benefit of creditors
under any state statute. Neither Tenant nor any person claiming through or under
Tenant, or by reason of any statue or order of court, shall thereafter be
entitled to possession of the premises demised but shall forthwith quit and
surrender the premises. If this lease shall be assigned in accordance with its
terms, the provisions of this Article 16 shall be applicable only to the party
then owning Tenant's interest in this lease.
(b) It is stipulated and agreed that in the event of the termination of
this lease pursuant to (a) hereof, Owner shall forthwith, notwithstanding any
other provisions of this lease to the contrary, be entitled to recover from
Tenant as and for liquidated damages an amount equal to the difference between
the rental reserved hereunder for the unexpired portion of the term demised and
the fair and reasonable rental value of the demised premises for the same
period. In the computation of such damages the difference between any
installment of rent becoming due hereunder after the date of termination and the
fair and reasonable rental value of the demised premises for the period for
which such installment was payable shall be discounted to the date of
termination at the rate of four percent (4%) per annum. If such premises or any
part thereof,
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before presentation of proof of such liquidated damages to any court, commission
or tribunal, the amount of rent reserved upon such re-letting shall be deemed to
be the fair and reasonable rental value for the part or the whole of the
premises so re-let during the term of the re-letting. Nothing herein contained
shall limit or prejudice the right of the Owner to prove for and obtain as
liquidated damages by reason of such termination, an amount equal to the maximum
allowed by any statute or rule of law in effect at the time when, and governing
the proceedings in which, such damages are to be proved, whether or not such
amount be greater, equal to, or less than the amount of the difference referred
to above.
Default: 17. (1) If Tenant defaults in fulfilling any of the covenants of
this lease other than the covenants for the payment of rent or additional rent;
or if the demised premises becomes vacant or deserted or if this lease be
rejected under Section 235 of Title 11 of the U.S. Code (bankruptcy code); or if
any execution or attachment shall be issued against Tenant or any of Tenant's
property whereupon the demised premises shall be taken or occupied by someone
other than Tenant; or if Tenant shall have failed, after days written [17A]
notice, to redeposit with Owner any portion of the security deposited hereunder
which Owner has applied to the payment of any rent and additional rent due and
payable then in any one or more of such events, upon Owner serving a written
[17B] days notice upon Tenant specifying the nature of said default and upon the
expiration of said [17B] day period, and if Tenant shall not have diligently
commenced during such default within such [17B] day period, and shall not
thereafter with reasonable diligence and in good faith, proceed to remedy or
cure such default, then Owner may serve a written [17C] days' notice of
cancellation of this lease upon Tenant, and upon the expiration of said [17C]
days this lease and the term thereunder shall end and expire as fully and
completely as if the expiration of such [17C] day period were the day herein
definitely fixed for the end and expiration of this lease and the term thereof
and Tenant shall then quit and surrender the demised premises to Owner but
Tenant shall remain liable as hereinafter provided.
(2) If the notice provided for in (1) hereof shall have been given, and
the term shall expire as aforesaid; or if Tenant shall make default in the
payment of the rent reserved herein or any item of additional rent herein
mentioned or any part of either or in making any other payment herein required;
then and in any of such events Owner may without notice, re-enter the demised
premises either by force or otherwise, and dispossess Tenant by summary
proceedings or otherwise, and the legal representative of Tenant or other
occupant of demised premises and remove their effects and hold the premises as
if this lease had not been made, and Tenant hereby waives the service of notice
of intention to re-enter or to institute legal proceedings to that end. If
Tenant shall make default hereunder prior to the date fixed as the commencement
of any renewal or extension of this lease, Owner may cancel and terminate such
renewal or extension agreement by written notice.
Remedies of Owner and Waiver of Redemption: 18. In case of any such default,
re-entry, expiration and/or dispossession by summary proceedings or otherwise,
(a) the rent, and
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additional rent, shall become due thereupon and be paid up to the time of such
re-entry, dispossession and/or expiration. (b) Owner may re-let the premises or
any part or parts thereof, either in the name of Owner or otherwise, for a term
or terms, which may at Owner's option be less than or exceed the period which
would otherwise have constituted the balance of the term of this lease and may
grant concessions or free rent or charge a higher rental than that in this
lease. (c) Tenant or the legal representatives of Tenant shall also pay Owner as
liquidated damages for the failure of Tenant to observe and perform said
Tenant's covenants herein contained, any deficiency between the rent hereby
reserved and or covenanted to be paid and the net amount, if any, of the rents
collected on account of the subsequent lease or leases of the demised premises
for each month of the period which would otherwise have constituted the balance
of the term of this lease. The failure of Owner to re-let the premises or any
part or parts thereof shall not release or affect Tenant's liability for
damages. In computing such liquidated damages there shall be added to the said
deficiency such [18A] expenses as Owner may incur in connection with re-letting,
such as legal expenses, attorneys' fees, brokerage, advertising and for keeping
the demised premises in good order or for preparing the same for re-letting. Any
such liquidated damages shall be paid in monthly installments by Tenant on the
rent day specified in this lease and any suits brought to collect the amount of
the deficiency for any month shall not prejudice in any way the rights of Owner
to collect the deficiency for any subsequent month by a similar proceeding.
Owner, in putting the demised premises in good order or preparing the same for
re-rental may, at Owner's option, make such alterations, repairs, replacements,
and/or decorations in the demised premises as Owner, in Owner's sole judgment,
considers advisable and necessary for the purpose of re-letting the demised
premises, and the making of such alterations, repairs, replacements, and/or
decorations shall not operate or be construed to release Tenant from liability
hereunder as aforesaid. Owner shall in no event be liable in any whatsoever for
failure to re-let the demised premises, or in the event that the demised
premises are re-let, for failure to collect the rent thereof under such re-
letting, and in no event shall Tenant be entitled to receive any excess, if any,
of such net rents collected over the sums payable by Tenant to Owner hereunder.
In the event of a breach or threatened breach by Tenant of any of the covenants
or provisions hereof, Owner shall have the right of injunction and the right to
invoke any remedy allowed at law or in equity as if re-entry, summary
proceedings and other remedies were not herein provided for. Mention in this
lease of any particular remedy, shall not preclude Owner from any other remedy,
in law or in equity. Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future laws.
Fees and Expenses: 19. If Tenant shall default in the observance or
performance of any term or covenant on Tenant's part to be observed or performed
under or by virtue of any of the terms or provisions in any article of this
lease, [19A] then, unless otherwise provided elsewhere in this lease, Owner may
immediately or at any time thereafter and without notice perform the obligation
of Tenant thereunder. If Owner, in connection with the foregoing or in
connection with any default by Tenant in the covenant to pay rent hereunder,
makes any expenditures or incurs any obligations for the payments of money,
including but not limited to [19B] attorney's fees, in instituting, prosecuting
or defending any action or proceedings, then Tenant will reimburse Owner for
such sums so paid or obligations incurred with interest and costs. The foregoing
expenses incurred by reason of Tenant's default shall be deemed to be additional
rent hereunder and shall be paid by Tenant to Owner within [19C] days of
rendition of any
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xxxx or statement to Tenant therefor. If Tenant's lease term shall have expired
at the time of making such expenditures or incurring of such obligations, such
sums shall be recoverable by Owner as damages.
Building Alterations and Management:
No Representations by Owners: 21. Neither Owner nor Owner's agents have made
any representations or promises with respect to the physical condition of the
building, the land upon which it is erected or the demised premises, the rents,
leases, expenses of operation or any other matter or thing affecting or related
to the demised premises or the building except as herein expressly set forth and
no rights, easements or licenses are acquired by Tenant by implication or
otherwise except as expressly set forth in the provisions of this lease. Tenant
has inspected the building and the demised premises and is thoroughly acquainted
with their condition and agrees to take the same "as is" on the date possession
is tendered and acknowledges that the taking of possession of the demised
premises by Tenant shall be conclusive evidence that the said premises and the
building of which the same form a part were in good and satisfactory condition
at the time such possession was so taken, except as to latent defects. All
understandings and agreements heretofore made between the parties hereto are
merged in this contract, which alone fully and completely expresses the
agreement between owner and Tenant and any executory agreement hereafter made
shall be ineffective to change, modify, discharge or effect an abandonment of it
in whole or in part, unless such executory agreement is in writing and signed by
the party against whom enforcement of the change, modification, discharge or
abandonment is sought.
End of Term: 22. Upon the expiration or other termination of the term of this
lease, Tenant shall quit and surrender to Owner the demised premises, broom
clean, in good order and condition, ordinary wear and damages which Tenant is
not required to repair as provided elsewhere in this lease excepted, and [22A]
Tenant shall remove all its property from the demised premises. Tenant's
obligation to observe or perform this covenant shall survive the expiration or
other termination of this lease. If the last day of the term of this Lease or
any renewal thereof, falls on Sunday, this lease shall expire at noon on the
preceding Saturday unless it be a legal holiday in which case it shall expire at
noon on the preceding business day.
Quiet Enjoyment: 23. Owner covenants and agrees with Tenant that upon Tenant
paying the rent and additional rent and observing and performing all the terms,
covenants and conditions, on
-10-
Tenant's part to be observed and performed, Tenant may peaceably and quietly
enjoy the premises hereby demised, subject, nevertheless, to the terms and
conditions of this lease including, but not limited to, Article 34 hereof and to
the ground leases, underlying leases and mortgages hereinbefore mentioned.
Failure to Give Possession: 24. If Owner is unable to give possession of the
demised premises on the date of the commencement of the term hereof, because of
the holding-over or retention of possession of any tenant, undertenant or
occupants or if the demised premises are located in a building being
constructed, because such building has not been sufficiently completed to make
the premises ready for occupancy or because of the fact that a certificate of
occupancy has not been procured or if Owner has not completed any work required
to be performed by Owner, or for any other reason, Owner shall not be subject to
any liability for failure to give possession on said date and the validity of
the lease shall not be impaired under such circumstances, nor shall the same be
construed in any wise to extend the term of this lease, but the rent payable
hereunder shall be abated (provided Tenant is not responsible for Owner's
inability to obtain possession or complete any work required) until after Owner
shall have given Tenant notice that the premises are substantially ready for
Tenant's occupancy. If permission is given to Tenant to enter into the
possession of the demised premises or to occupy premises other than the demised
premises prior to the date specified as the commencement of the term of this
lease, Tenant covenants and agrees that such occupancy shall be deemed to be
under all the terms, covenants, conditions and provisions of this lease, except
as to the covenant to pay rent. The provisions of this article are intended to
constitute "an express provision to the contrary" within the meaning of Section
223-a of the New York Real Property Law.
No Waiver: 25. The Failure of Owner (25A) to seek redress for violation of, or
to insist upon the strict performance of any covenant or condition of this lease
or of any of the Rules or Regulations, set forth or hereafter adopted by Owner,
shall not prevent a subsequent act which would have originally constituted a
violation from having all the force and effect of an original violation. The
receipt by Owner of rent with knowledge of the breach of any covenant of this
lease shall not be deemed a waiver of such breach and no provision of this lease
shall be deemed to have been waived by Owner (25A) unless such waiver be in
writing signed by Owner (25B). No payment by Tenant or receipt by Owner of a
lesser amount than the monthly rent herein stipulated shall be deemed to be
other than on account of the earliest stipulated rent, nor shall any endorsement
or statement of any check or any letter accompanying any check or payment as
rent be deemed an accord and satisfaction, and Owner may accept such check or
payment without prejudice to Owner's right to recover the balance of such rent
or pursue any other remedy in this lease provided. All checks tendered to Owner
as and for the rent of the demised premises shall be deemed payments for the
account of Tenant. Acceptance by Owner of rent from anyone other than Tenant
shall not be deemed to operate as an attornment to Owner by the payor of such
rent or as a consent by Owner to an assignment or subletting by Tenant of the
demised premises to such payor, or as a modification of the provisions of this
lease. No act or thing done by Owner or Owner's agents during the term hereby
demised shall be deemed an acceptance of a surrender of said premises and no
agreement to accept such surrender shall be valid unless in writing signed by
Owner. No employee of Owner or Owner's agent shall have any power to accept the
keys of
-11-
said premises prior to the termination of the lease and the delivery of keys to
any such agent or employee shall not operate as a termination of the lease or a
surrender of the premises.
Waiver of Trial by Jury: 26. It is mutually agreed by and between Owner and
Tenant that the respective parties hereto shall and they hereby do waive trial
by jury in any action, proceeding or counterclaim brought by either of the
parties hereto against the other (except for personal injury or property damage)
on any matters whatsoever arising out of or in any way connected with this
lease, the relationship of Owner and Tenant, Tenant's use of or occupancy of
said premises, and any emergency statutory or any other statutory remedy. It is
further mutually agreed that in the event Owner commences any summary proceeding
for possession of the premises, Tenant will not interpose any counterclaim of
whatever nature or description in any such proceeding.
Inability to Perform: 27. This Lease and the obligation of Tenant to pay rent
hereunder and perform all of the other covenants and agreements hereunder on
part of Tenant to be performed shall in no wise be affected, impaired or excused
because Owner is unable to fulfill any of its obligations under this lease or to
supply or is delayed in supplying any service expressly or impliedly to be
supplied or is unable to make, or is delayed in making any repair, additions,
alterations or decorations or is unable to supply or is delayed in supplying any
equipment or fixtures if Owner is prevented or delayed from so doing by reason
of strike or labor troubles or any cause whatsoever beyond Owner's sole control
including, but not limited to, government preemption in connection with a
National Emergency or by reason of any rule, order or regulation of any
department or subdivision thereof of any government agency or by reason of the
conditions of supply and demand which have been or are affected by war or other
emergency.
Bills and Notices:
Water Charges:
-12-
Sprinklers:
Elevators, Heat, Cleaning: 31.
-13-
Security: 32. Tenant has deposited with Owner the sum of $75,000.00 as
security for the faithful performance and observances by Tenant of the terms,
provisions and conditions of this lease; it is agreed that in the event Tenant
defaults in respect of any of the terms, provisions and conditions of this
lease, including, but not limited to, the payment of rent and additional rent,
Owner may use, apply or retain the whole or any part of the security so
deposited to the extent required for the payment of any rent and additional rent
or any other sum as to which tenant is in default or for any sum which Owner may
expend or may be required to expend by reason of Tenant's default in respect of
any of the terms, covenants and conditions of this lease, including but not
limited to, any damages or deficiency in the reletting of the premises, whether
such damages or deficiency accrued before or after summary proceedings or other
re-entry by Owner. In the event that Tenant shall fully and faithfully comply
with all of the terms, provisions, covenants and conditions of this lease, the
security shall be returned to Tenant after the date fixed as the end of the
Lease and after delivery of entire possession of the demises premises to Owner.
In the event of a sale of the demises premises, Owner shall have the right to
transfer the security to the vendee or lessee and Owner shall thereupon by
released by Tenant from all liability for the return of such security; and
Tenant agrees to look to the new Owner solely for the return of said security
[32A] and it is agreed that the provisions hereof shall apply to every transfer
or assignment made of the security to a new Owner. Tenant further convenants
that it will not assign or encumber or attempt to assign or encumber the monies
deposited herein as security and that neither Owner nor its successors or
assigns shall be bound by any such assignment, encumbrance, attempted assignment
or attempted encumbrance.
Captions: 33. The Captions are inserted only as a matter of convenience and
for reference and in no way define, limit or describe the scope of this lease
nor the intent of any provision thereof.
-14-
34. The words "re-enter" and "re-entry" as used in this lease are not
restricted to their technical legal meaning. The term "rent" includes the annual
rental rate whether so expressed or expressed monthly installments and
"additional rent." "Additional rent" means all sums which shall be due to new
Owner from Tenant under this lease, in addition to the annual rent rate. The
term "business days" as used in this lease, shall exclude Saturdays (except such
portion thereof as is covered by specific hours in Article 31 hereof). Sundays
and all days observed by the State of Federal Government as legal holidays and
those designated as holidays by the applicable building service union employees
service contract or by the applicable Operating Engineers contract with respect
to HVAC service.
Adjacent Excavation: 35. If an excavation shall be made upon land adjacent to
the demised premises, or shall be authorized to be
________________________________________ [space to be filled in or deleted]
[Shoring:] made, Tenant shall afford to the person causing or au______ the
demised premises for the purpose of doing such work as said person shall deem
necessary to preserve the wall or the building of which demises premises form a
part from injury or damages and to support the same by proper foundation without
any claim for damages or indemnity against Owner, or diminution or abatement of
rent.
Rules and Regulations: 36. Tenant and Tenant's servants, employees, agents,
visitors, and licensees shall observe faithfully, and comply strictly with, the
Rules and Regulations annexed hereto and [36A]
Glass: 37. Owner shall replace, at the expense of the Tenant, any and all
plate and other glass damaged or broken from any cause whatsoever, the demised
premises [37A]. Owner may insure, and keep insured, at Tenant's expense, all
plate and other glass in the demised premises for and in the name of Owner.
Bills for the premiums therefor shall be rendered by Owner to Tenant at such
times as Owner may elect, and shall be due from, and payable by, Tenant when
rendered, and the amount thereof shall be deemed to be, and be paid, as
additional rent.
-15-
Estoppel Certificate: 38. Tenant, at any time, and from time to time, upon at
least 10 [38A] days' prior notice by Owner, shall execute, acknowledge and
deliver to Owner, and/or to any other person, firm or corporation specified by
Owner, a statement certifying that this Lease is unmodified in full force and
effect (or, if there have been modifications, that the same is in full force and
effect as modified and stating the modifications), stating the dates to which
the rent and additional rent have been paid, and stating whether or not there
exists any defaults by Owner under this Lease, and, if so, specifying each such
default.
Directory Board Listing 39. If, at the request of and as accommodation to
Tenant, Owner shall place upon the directory board in the lobby of the building,
one or more names of person other than Tenant, such directory board listing
shall not be construed as the consent by Owner to an assignment or subletting by
Tenant to such person or persons.
40. The covenants, conditions and agreements contained in this lease shall
bind and inure to the benefit of Owner and Tenant and their respective heirs,
distributees, executors, administrators, successors, and except as otherwise
provided in this Lease, their assigns.
SEE RIDER ATTACHED HERETO AND MADE A PART HEREOF
IN WITNESS WHEREOF, Owner and Tenant have respectively signed and sealed this
lease as of the date and year first above written.
Witness for Owner: XXXXX BEAR REALTY CORP.
By: /s/ Xxx Xxxxxxx
-----------------------------
Name:
---------------------------
Title: President
------------------------- --------------------------
Witness for Tenant: LOUDEYE TECHNOLOGIES, INC.
By: /s/ Xxxxx Xxxxxx
-----------------------------
Name:
-----------------------------
Title: Chief Financial Officer
------------------------- --------------------------
-16-
ACKNOWLEDGEMENTS
CORPORATE TENANT
STATE OF NEW YORK
County of
On this ___ day of _______________, 19___, before me personally came
__________________ to be known, who being by me duly sworn, did depose and say
that he resides in _____________________- that he is the ______________ of
______________________, the corporation described in and which executed the
foregoing instrument, as TENANT: that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by order of the Board of Directors of said corporation, and that he
signed his name thereto by like order.
INDIVIDUAL TENANT
STATE OF NEW YORK
County of
On this ___ day of __________________, 19___, personally came _______________ to
me known to be the individual described in and who, as TENANT, executed the
foregoing instrument and acknowledged to me that ___ he executed the same.
IMPORTANT - PLEASE READ
RULES AND REGULATIONS ATTACHED TO AND
MADE A PART OF THIS LEASE IN ACCORDANCE WITH ARTICLE 36.
1. The sidewalks, entrances, driveways, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or encumbered
by any Tenant or used for any purpose other than for ingress or egress from the
demised premises and for delivery of merchandise and equipment in a prompt and
efficient manner using elevators and passageways designated for such delivery by
Owner. There shall not be used in any space, or in the public hall of the
building, either by any Tenant or by jobbers or others in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber tires
and sideguards. If said premises are situated on the ground floor of the
building, Tenant thereof shall further, at Tenant's expense, keep the sidewalk
and curb in front of said premises clean and free from ice, snow, direct and
rubbish.
2. The water and wash closets and plumbing fixtures shall not be used for
any purposes other than those for which they were designed or constructed and no
sweepings, rubbish, rags, acids or other substances shall be deposited therein,
and the expense of any breakage, stoppage, or damage resulting from the
violation of this rule shall be burn by the Tenant who, or whose clerks, agents,
employees or visitors, shall have caused it.
-17-
3. No carpet, rug or other article shall be hung or shaken out of any
window of the building; and no Tenant shall sweep or throw or permit to be swept
or thrown from the demised premises any dirt or other substances into any of the
corridors or halls, elevators, or out of the doors or windows or stairways of
the buildings and Tenant shall not use, keep or permit to be used or kept any
foul or noxious gas or substance in the demise premises, or permit or suffer the
demised premises to be occupied or used in a manner offensive or objectionable
to Owner or other occupants of the buildings by reason of noise, odors, and or
vibrations, or interfere in any way, with other Tenants or those having business
therein, nor shall any animals or birds by kept in or about the building.
Smoking or carrying lighted cigars or cigarettes in the elevators of the
building is prohibited.
4. No awnings or other projections shall be attached to the outside walls
of the building without the prior written consent of Owner.
5. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any Tenant on any part of the outside of the
demised premises or the building or on the inside of the demised premises if the
same is visible from the outside of the premises without prior written consent
of Owner, except that the name of Tenant may appear on the entrance door of the
premises. I the event of the violation of the foregoing by any Tenant, Owner may
remove same without any liability and may charge the expense incurred by such
removal to Tenant or Tenants violating this rule. Interior signs on doors and
director tablet shall be inscribed, painted or affixed for each Tenant by Owner
at the expense of such Tenant, and shall be of a size, color and style
acceptable to Owner.
6. No Tenant shall drill into, or in any way deface any part of the demised
premises or the building of which they form a part. No boring, cutting or
stringing of wires shall be permitted, except with the prior written consent of
Owner, and as Owner may direct. No Tenant shall lay linoleum, or other similar
floor covering, so that the same shall come in direct contact with the floor of
the demised premises, and, if linoleum or other similar floor covering is
desired to be used an interlining of builder's deadening felt shall be first
affixed to the floor, by a paste or other material, soluble in water, the use of
cement or other similar adhesive material being expressly prohibited.
7. Each Tenant must, upon the termination of his Tenancy, remove to Owner
all keys of stores, offices and toilet rooms, either furnished to, or otherwise
procured by, such Tenant, and in the event of the loss of any keys, so
furnished, such Tenant shall pay to Owner the cost thereof.
8. Freight, furniture, business equipment, merchandise and bulky manner of
any description shall be delivered to and removed from the premises only on the
freight elevators and through the service entrances and corridors. Owner
reserves the right to inspect all freight to be brought into the building and to
exclude
-18-
9. No Tenant shall obtain for use upon the demised premises ice, drinking
water, towel and other similar services, or accept barbering or bootblacking
services in the demised premises, except from persons authorized by Owner, and
at hours and under regulations, fixed by Owner, Canvassing, soliciting and
peddling in the building is prohibited and each Tenant shall cooperate to
prevent the same.
10.
11. Owner shall have the right to prohibit any advertising by any Tenant
which in Owner's opinion, tends to impair the reputation of the building or its
desirability as a loft building, and upon written notice from Owner, Tenant
shall refrain from or discontinue such advertising.
12. Tenant shall not bring or permit to be brought or kept in or on the
demised premises, any inflammable, combustible or explosive fluid, material,
chemical or substances, or cause or permit any odors of cooking or other
processes, or any unusual or other objectionable odors to permeate ___ or
emanate from the demised premises.
-19-
FOOTNOTE RIDER
--------------
The language set forth in each of the numbered Footnotes set forth in this
Footnotes Rider shall be incorporated into the body of this Lease to correspond
to the corresponding numbered Footnote set forth in the body of this Lease. The
Footnotes are as follows:
Introduction, Payment of Initial Monthly Rent
---------------------------------------------
A. provided, however, that in the event the commencement date of this Lease
shall occur on a day which is not the first day of any month, the first monthly
installment of Rent payable under this Lease shall be pro rated to reflect such
partial monthly period and Rent payments for any other partial month during the
term shall be similarly pro rated
Article 3. Alterations
-----------------------
3A which consent shall not be unreasonably withheld, denied, or delayed,
3D. ,which approval as to contractors and mechanics shall not be unreasonably
withheld, delayed or denied.
3C. Anything to the contrary contained in the immediately preceding sentence
notwithstanding, Owner's right to elect to have fixtures, etc. removed from
the demised premises by Tenant at Tenant's expense shall not apply to such
items which are of a nature which is reasonably deemed to be a normal
standard tenant installation but rather such right on the part of Owner
shall be limited to those items which are not normal standard tenant
installations. For purposes of this Article 3, normal standard tenant
installations shall be deemed to mean any system for the distribution of
healing, ventilation and air conditioning, dry wall partitioning, lighting,
flooring, ceiling, carpeting, electrical submetering equipment, painting,
plumbing and work of a similar nature. Non-standard Tenant installations
shall include Tenant's equipment decorations, louvers, furniture, safes,
platforms, vaults, computer floors and furnishings of a similar nature the
cost of removal which would exceed the cost of removal of a normal standard
Tenant installation.
3D. as provided in this Article 3
3E. (reasonable wear and tear excepted)
3F. which Tenant shall have the right to remove or be requested by Owner to
remove as provided in this Article 3
Article 4. Repairs
-------------------
4A. business
-20-
4B. ; provided, however, that Owner shall use reasonable efforts to minimize
interference with Tenant's business and Tenant's use and enjoyment of the
demised premises in connection with such repairs, alterations, additions
and improvements.
Article 6. Requirements of Law, Fire Insurance, Floor Loads
------------------------------------------------------------
6A. during the term of this Lease or for as long as the Tenant remains in
possession,
6B. reasonably
6C. reasonable
Article 8. Property - Loss, Damage, Reimbursement, Indemnity
-------------------------------------------------------------
8A. or willful misconduct
Article 9. Destruction, Fire and Other Casualty
------------------------------------------------
9A. thirty (30)
Article 11. Assignment, Mortgage, Etc.
--------------------------------------
11A. , which consent shall not be unreasonably withheld, conditioned or
delayed.
11B. Notwithstanding the foregoing and subject to any approvals required under
the terms of the Proprietary Lease, Tenant may, upon notice to Owner but
without Owner's approval, sublet all or any portion of the demised
premises or assign this Lease to: (i) a parent, subsidiary, or any other
affiliate entity controlling, controlled by or under common control with
Tenant; (ii) a successor entity to Tenant by merger or consolidation, or
as a result of a sale of all or substantially all of the business or
assets of Tenant; (iii) a purchaser of Tenant's leasehold interest in the
demised premises in connection with the sale of the business of Tenant
conducted at the demised premises, provided that, as of the date of such
transfer, the purchaser has the financial ability to perform its
obligations with respect to this Lease and/or the demised premises. As a
condition to the effectiveness of any such assignment of this Lease, the
parent, subsidiary or affiliate of Tenant, the successor entity to Tenant
or the transferee of Tenant's assets or business, as the case may be,
shall deliver to Lessor an acknowledged instrument assuming all
obligations, covenants, and responsibilities of Tenant hereunder. For
purposes of this Lease, any sale or transfer of Tenant's capital stock
through any public exchange, or redemption or issuance of additional stock
of any class shall not be deemed an assignment, subletting or any other
transfer of the Lease or the demised premises.
Article 13. Access To Premises
-------------------------------
13A Owner shall use reasonable efforts to minimize interference with Tenant's
business and Tenant's use and enjoyment of the demised premises in
connection with such access, repairs, alterations, additions and/or
improvements to the demised premises.
-21-
Article 15. Occupancy
----------------------
15A. the Proprietary Lease and
15B. except that Owner, at Owner's cost and expense, shall cure and discharge
all outstanding violations of record issued against the demised premises
as of the commencement date of this Lease if and only to the extent such
violations impair the use and occupancy of the demised premises by Tenant
for the purposes permitted pursuant to Article 2 hereof.
Article 16. Bankruptcy
-----------------------
16A and Tenant fails to secure a dismissal thereof within sixty (60) days of
the commencement thereof
Article 17. Default
--------------------
17A. six (6) business
17B. fifteen (15)
17C. five(5)
Article 18. Remedies of Owner
------------------------------
18A. reasonable
Article 19. Fees and Expenses
------------------------------
19A. and subject to the notice provisions and expiration of applicable grace
periods contained in this Lease,
19B. reasonable
19C. ten(10)
Article 22. End Of Term
------------------------
22A. , subject to the provisions of Article 3 of this Lease,
Article 25. No Waiver
----------------------
25A. or Tenant
25B. or Tenant, as the case may be
Article 31. Elevators Heat, Cleaning
-------------------------------------
-22-
31A. With respect to the demised premises, Tenant shall be entitled to receive
all services to be rendered to Owner by the Corporation (as defined in the
attached Rider) under the terms of the Proprietary Lease (and other
cooperative documents) affecting the demised premises. Owner shall assist
and cooperate with Tenant to ensure that Tenant is provided with those
services to be rendered to Owner by the Corporation under the terms of the
Proprietary Lease and other cooperative documents affecting the demised
premises.
Article 32. Security
---------------------
32A. provided the new owner of the demised premises (i.e., the owner of the
shares of the Corporation and tenant under the Proprietary Lease with
respect to the demised premises) has assumed all of Owner's obligations
under this Lease (including, all obligations with respect to Tenant's
Security Deposit)
Article 36. Rules And Regulations
----------------------------------
36A. the House Rules for the building.
Article 37. Glass
------------------
37A , except Owner, at the expense of Owner, shall replace any and all plate
or other glass damaged or broken by Owner, its employees, subcontractors
or agents.
Article 38. Estoppel Certificate
---------------------------------
38A. business
-23-
RIDER TO LOFT LEASE AGREEMENT (this "Rider"), dated as of June ___, 2000 between
XXXXX BEAR REALTY CORP. (hereinafter referred to as "Owner" or "Lessor" and
LOUDEYE TECHNOLOGIES, INC. (hereinafter referred to as "Tenant" or "Lessee") for
premises known as the entire Fourth Floor located at 000 Xxxx 00x Xxxxxx, Xxx
Xxxx, Xxx Xxxx (hereinafter referred to as the "demised premises" or the "Leased
Premises" or the "Demised Premises").
1. Conflicts. In the event of any conflict between the provisions contained
in this Rider and the provisions contained in the printed portion of this
Lease the provisions of this Rider shall be deemed paramount and shall
govern
2. Commercial Cooperative. The parties hereto hereby acknowledge that the
demised premises are located in a commercial cooperative building- Owner's
ownership rights in the demised premises are by virtue of ownership of
shares of stock in 450 West 31st Owners Corp. (the "Corporation") and its
rights as lessee under that certain proprietary lease dated November 27,
1996 (the "Proprietary Lease"). Therefore all rights and obligations of the
parties hereto axe subject and subordinate to the terms and conditions of
the Proprietary Lease and the by-laws of the Corporation, including without
limitation any consent that may be required by the Corporation. The parties
hereto therefore acknowledge that this Lease is in fact a sublease of
Owner's rights as lessee under the Proprietary Lease. Therefore, wherever
the context so requires, in the printed portion of this Lease or in the
provisions of this Rider, the terms hereof shall be read so that the
"Owner" or "Lessor" shall be synonymous with the "Tenant" under the
Proprietary Lease and the "Tenant" or "Lessee" shall be synonymous with the
"Sublessee" under the Proprietary Lease. Additionally, any obligations on
the part of Owner set forth in this Lease, which are actually the
obligation of the Corporation pursuant to the terms of the Proprietary
Lease, are hereby amended to refer to the Corporation, rather than to the
Owner. In addition to the foregoing, Owner covenants and agrees: (a) to
perform all of its duties, obligations and liabilities under the
Proprietary Lease; and (b) that during the term of this Lease, Owner will
not do or cause to be done, or suffer or permit any act or thing to be
done, which may cause the Proprietary Lease to be canceled, terminated,
forfeited or prejudiced, or amended or modified in a manner adverse to
Tenant or inconsistent with the terms of this Lease, without the written
consent of Tenant
-24-
3. Fixed Annual Rent. The annual rent (hereinafter sometimes referred to as
the "Fixed Annual Rent") which Tenant agrees to pay Owner throughout the
term hereof shall be as follows:
---------------------------------------------------------------------------------------------
Year of Term Fixed Annual Fixed Monthly Tenant Nextel
Rent Rent pays Coop Permitted
Maintenance Deduction
---------------------------------------------------------------------------------------------
Year 1 $300,000.00 $25,000.00 No $100/mo
---------------------------------------------------------------------------------------------
Year 2 $400,000.00 $33,333.33 No $166.66/mo.
---------------------------------------------------------------------------------------------
Year 3 $450,000.00 $37,500.00 No $187.50/mo.
---------------------------------------------------------------------------------------------
Year 4 $450,000.00 $37,500.00 No $187.50/mo.
---------------------------------------------------------------------------------------------
Year 5 $450,000.00 $37,500.00 No $187.50/mo.
---------------------------------------------------------------------------------------------
4. Excluded Premises. Owner has disclosed to Lessee that approximately fifty
(50) square feet of space located with the demised premises has been
previously subleased to Nextel (the "Nextel Space"). Such subleased space
shall be excluded from the demised premises and Owner shall be entitled to
continue to collect all revenues that are derived from such sublease.
Furthermore, Lessee shall permit Nextel access to the Nextel Space over and
through the demised premises, at all times and in all manners as permitted
by the agreement between Nextel and Owner. Owner shall provide Tenant with
a copy of the sublease for the Nextel Space (with all financial terms
redacted if so determined by Owner). As long as the sublease for the Nextel
Space shall remain in effect, Tenant shall be entitled to deduct from each
monthly payment of Fixed Monthly Rent to Owner, an amount equal to that set
forth in the column entitled "Nextel Permitted Deduction" in the chart in
paragraph 3 above.
5. Late Charges. In the event of any failure by Lessee to pay or discharge
the Fixed Annual Rent for a period fifteen (15) days after same becomes
due, Lessee will also pay to Lessor on demand as additional rent, interest
at the prime rate of interest per annum (or the highest rate permitted by
law, whichever is less) on all overdue installments of Fixed Annual Rent
from such date until paid in full and on all overdue amounts of additional
rent relating to obligations which Lessor shall have paid on behalf of
Lessee.
6 Hazardous Materials; The Lessee shall not cause the Demised Premises to be
in violation of; any federal, state, or local laws, ordinances or
regulations relating to industrial hygiene or to environmental conditions
(Hazardous Materials Laws). The Lessee shall not use, generate,
manufacture, store, or dispose of on, under or about the Demised Premises
or transport to or from the Demised Premises any flammable explosives,
radioactive materials, hazardous wastes, toxic substances, or related
-25-
materials, including without limitation any substances defined as or
included in the definition of hazardous substances, hazardous wastes,
hazardous materials, or toxic substances under any applicable federal or
state laws or regulations (collectively referred to hereinafter as
"Hazardous Materials"). The Lessee shall be solely responsible for, and
shall indemnify and hold harmless the Owner, its directors, officers,
employees, agents, successors, and assigns from and against, any loss,
damage, cost expense, or liability directly or indirectly arising out of
Lessee's breach of any of the provisions of this Paragraph, including
without limitation: (i) all foreseeable consequential damages; (ii) the
costs of any required or necessary repair, cleanup, or detoxification of
the Demised Premises, and the preparation and implementation of any
closure, remedial, or other required plans; and (iii) all reasonable costs
and expenses incurred by the Owner in connection with clauses (i) and (ii),
including, but not limited to, reasonable attorneys' fees. The Lessee
shall, upon the request of the Owner, provide the Owner with a bond or
letter of credit, in form and substance satisfactory to the Owner, in an
amount sufficient to cover the costs of any required cleanup. The Lessee
shall, at its expense, take all necessary remedial action(s)in response to
the presence of any Hazardous Materials on, under, or about the Demised
Premises which are the result of the actions of Lessee .
7. Increases in Maintenance. During the second through fifth year of this
Lease, Tenant agrees to pay as additional rent, any and all increases in
the monthly Cooperative Maintenance Charge attributable to increases in
real estate taxes, insurance or building maintenance costs above the
monthly Cooperative Maintenance Charge for the last month of the first year
period of this Lease, whether any such increases result from a higher tax
rate or an increase in the assessed valuation of the property, or the
partial and total expiration of any tax abatement or exemption or any
combination thereof. Said sum due Owner shall be paid as additional rent
and shall be collectible as such in the month following the submission of
Owner's xxxx therefor- All payments shall be appropriately prorated for any
partial months.
8. Indemnification. The Tenant hereby indemnifies and agrees forever to save
harmless the Owner against any and all liabilities, penalties, claims,
damages, expenses (including, without limitation, reasonable attorneys'
fees whether in a proceeding between the Owner and the Tenant or between
the Owner and any third party) or judgments, arising from injury to person
or property of any kind, occasioned wholly or in part by the Tenant's
failure to perform or abide by any of the covenants of this lease or
occasioned wholly or in part by any act or acts, omission or omissions of
the Tenant, or of the employees, customers, agents, assigns, invitees or
licensees or under-tenants of the Tenant, or based on any matter or thing
growing out of the Tenant's use or occupation of the demised premises or
any part of the building. The Tenant shall not do or permit any act or
thing to be done upon the demised premises which may subject the Owner to
any liability or responsibility for injury, damages to persons or property
or to any liability by reason of any violations of any requirements of law
with. which the Tenant is obligated to comply under this Lease, and the
Tenant shall exercise such control over the demised premises as to protect
the Owner against any such liability. In case any claim, action or
proceeding is made or brought against the Owner by reason of any such
claim, the Tenant, upon written notice from the Owner, shall, at the
Tenant's sole cost and expense, resist or defend such
-26-
action or proceeding by counsel approved by the Owner in writing, in
Owner's reasonable discretion. The Owner agrees that counsel for the
Tenant's insurance carrier shall be deemed satisfactory. Notwithstanding
the foregoing, Tenant shall have no obligation to indemnify Owner under the
provisions of this Paragraph or any other provision of this Lease to the
extent Tenant's indemnification obligations to Owner arise as a result of
the intentional or grossly negligent acts or omissions of Xxx Xxxxxxx. The
provisions of this paragraph shall survive the expiration or sooner
termination of this Lease.
9. Restrictions on Use. The Tenant agrees that the value of the demised
premises and the building of which the demised premises font a part and the
reputation of the Owner will be seriously injured if the demised premises
are used for any obscene or pornographic purposes or any sort of commercial
sex establishment. The Tenant covenants and agrees not to sell, display or
post, or knowingly allow to be sold, displayed or posted any obscene or
pornographic material on the demised premises. The Tenant agrees that if at
any time the Tenant violates any of the provisions of this Paragraph, such
violation shall be deemed a breach of a substantial obligation of the terms
of this Lease. The Tenant covenants and agrees that during the term of this
Lease, it will not use the demised premises or any part thereof; or permit
the demised premises or any part thereof to be used (1) for banking, trust
company or safe deposit business (except for non-retail uses); (2) as or by
a commercial or savings bank, a trust company, a savings and loan
association, a loan company, or a credit union (except for non-retail
uses); (3) for the sale or travelers checks, money orders and/or foreign
exchange; (4) as a restaurant and/or bar and/or for the sale of' soda
and/or beverage and/or sandwiches and/or ice cream and/or baked goods; (5)
by the United States Government, the City or State of New York, any foreign
government, the United Nations or any agency or department of any of the
foregoing, or any other person or entity having sovereign or diplomatic
immunity; (6) as an employment agency, search firm or similar enterprise,
school or vocational training center (except for the training of employees
of the Tenant intended to be employed at the premises); (7) as a xxxxxx
shop or beauty salon; or (8) as a diagnostic medical center and/or for the
practice of medicine.
10. Utilities. The cost of all utilities whatsoever delivered to or used in
connection with the demised premises shall be exclusively borne by the
Tenant.
11. Insurance. (a) The Tenant shall obtain and keep in full force and effect
during the term of this lease, at the Tenant's sole cost and expense, (i) a
policy of comprehensive general public liability and property damage
insurance on an occurrence basis, with a broad form contractual liability
endorsement and a completed operations endorsement with minimum limits with
a combined single limit with respect to each occurrence in an amount of not
less than $5,000,000 for injury (or death) to persons and damage to
property; (ii) an "all risk" policy, with extended coverage, covering all
of Tenant's personal property and alterations for 100% of the replacement
cost thereof; (iii) Worker's Compensation Insurance, as required by law;
and (iv) such other insurance in such amounts as Owner may reasonably
request, such request to be consistent with the standard business practices
of similarly situated commercial landlords. Such policies shall provide
that the Tenant is named as the insured. Owner and any managing agent,
lessors and mortgagees (whose
-27-
names have been furnished to the Tenant) shall be named as additional
insureds, as their respective interests may appear. The Tenant shall have
the right to insure and maintain the insurance coverages required under
this Paragraph under blanket insurance policies covering other premises
occupied by the Tenant so long as such blanket policies comply as to terms
and amounts with the requirements set forth in this Paragraph; provided
that, upon request, the Tenant shall deliver to the Owner a certificate
from the Tenant's insurer evidencing the portion of such blanket insurance
allocable to the demised premises.
(b) All insurance required to be canted by Tenant hereunder shall be
written in form and substance reasonably satisfactory to the Owner and
issued by a reputable and independent insurer permitted to do business in
the State of New York, and rated in Best's Insurance Guide (or any
successor thereto) as having a general policyholder rating of not less than
"A" and a financial rating of at least "XIII". The policy required to be
carried pursuant to paragraph (a) (i) above shall contain a provision that
(1) the policy shall be non-cancelable with respect to the Owner and such
managing agents, lessors and mortgagees (whose names and addresses have
been furnished to the Tenant) unless thirty (30) days' prior written notice
shall be given to the Owner by certified mail, return receipt requested,
which notice shall contain the policy number and the name of the insured
and additional insureds, and (2) no act or omission of the Tenant shall
affect or limit the obligation of the insurer to pay the amount of any loss
sustained. Certificates of insurance, or evidence of renewal of such
coverage, shall be delivered to the Owner prior to the commencement date of
this Lease (or any earlier entry upon the demised premises by the Tenant or
any of the Tenant's employees, agents or contractors prior to the
commencement date of this Lease), and at least thirty (30) days prior to
the expiration of such policy. If the Tenant fails to obtain or keep in
force the insurance required by this Paragraph, or to pay the premiums
thereof, provided the Tenant is afforded written notice of the Owner's
intention to pay such premium ten (10) days prior thereto, in addition to
all other rights the Owner may have under this Lease, the Owner may, from
time to time, and as often as such failure shall occur, pay the premiums
therefor, and any and all sums so paid for insurance by the Owner shall be
and become, and are hereby declared to be, additional rent under this lease
and shall be due and payable on demand.
12. Limitation of Owner's Liability. (a) The Tenant shall make no claim upon
the Owner for abatement of rent, constructive eviction, rescission, or
otherwise, and the Owner shall be exempt from all liability, except for
injuries to the Tenant's person or property which are due to the negligence
or intentional conduct of the Owner, its agents, servants or employees in
the management of the demised premises or the real property of which the
demised premises are a part, for or on account of any annoyance,
inconvenience, interference with business, or other damage, caused by: (i)
any interruption, malfunction or curtailment of the operation of the
elevator service, heating plant, sprinkler system, gas, water, sewer or
steam supply, plumbing, machinery, electric equipment or other
appurtenances, facilities, equipment and conveniences in the building,
whether such interruption, malfunction or curtailment be due to breakdowns,
or repairs, or strikes or inability to obtain electricity, fuel or water
due to any such cause or any other cause beyond the Owner's control; (ii)
any work of repair, alteration, renovation or replacement done by or on
behalf of the Owner or any other tenant; (iii) any water, rain, snow,
steam,
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gas, electricity or other element, which may enter, flow from or into the
premises or any part of the building, or any noise or vibration audible in,
or transmitted to the premises; (iv) any vermin, (v) any falling paint,
plaster or cement; (vi) any interference with light or with other easements
or incorporeal hereditaments; (vii) any latent defect or deterioration in
the building or the appurtenances thereof, whether or not the Owner shall
have been notified of any condition allegedly causing same; (viii) any
zoning ordinance or other acts of governmental or public authority now or
hereafter in force; and (ix) any act or omission of any other occupant of
the building or other person temporarily therein. The Tenant will not hold
the Owner liable for any loss or theft of;, or damage to, any property in
the demised premises done or caused by any employee, servant, or agent of
the Owner who is invited into the demised premises by the Tenant, nor for
the loss, damage or theft of any property stored or left in the basement or
in any other part of the building, which is not enclosed within the demised
premises or of any property, left with any employee of the Owner,
notwithstanding such theft, loss or damage may occur through carelessness
or negligence of the Owner's employees; and the Tenant agrees that any
employee in entering the demised premises at the invitation of the Tenant
or accepting custody of property shall be then deemed agent of the Tenant
or other person at whose instance he may be acting, and not agent of the
Owner. Employees of Owner are not permitted to receive or accept packages
or property for account of Tenants. The use of storerooms or storage space
for personal property (if provided) shall be at the Tenant's risk and the
Tenant will not hold the Owner liable for any loss of or damage to person
or property therein or thereby.
(b) Any right and authority reserved by and granted to the Owner under this
Lease, to enter upon and make repairs in the demised premises shall not be
taken as obligating the Owner to inspect and to repair the demised premises
and the Owner hereby assumes no responsibility or liability for the care,
inspection, maintenance, supervision, alteration or repair of the demised
premises except as herein specifically provided. Except as otherwise
provided in. the Proprietary Lease with respect to the obligations of the
Corporation, the Tenant assumes possession and control of the demised
premises and exclusively the whole duty of care and repair thereof, except
as herein specifically provided.
(c) The officers, directors, employees, partners, shareholders, and
principals, direct or indirect, comprising the Owner (collectively, the
"Parties") shall not be liable for the performance of the Owner's
obligations under this Lease. The Tenant shall look solely to the Owner to
enforce the Owner's obligations under this lease and shall not seek any
damages against any of the Parties. The liability of the Owner for the
Owner's obligations under this lease shall be limited to Owner's estate and
interest in the demised premises, the Corporation and the Proprietary Lease
including, but not limited to, any of Owner's interest in rents from the
demised premises (collectively, "Owner's Equity"). The Tenant shall not
look to any other property or assets of the Owner, other than Owner's
Equity, or the property or assets of any of the Parties in seeking either
to enforce the Owner's obligations under this Lease or to satisfy a
judgment for the Owner's failure to perform such obligations.
-29-
(d) If the Lease provides that the Owner's consent is not to be
unreasonably withheld or delayed, and it is the final order of any court
having jurisdiction thereof that the Owner has been unreasonable, the only
effect shall be that the Owner shall be deemed to have given such consent;
but in no event shall the Owner be liable to the Tenant for any monetary
damages by reason of the withholding or delaying of its consent
(e) The term "Owner" as used in this Lease, means only the owner for the
time being of the Coop Interest, as defined below, If the Owner shall
hereafter sell, exchange or transfer the Coop Interest, the grantee or
assignee thereof, as the case may be, shall without further agreement by
any party, be conclusively deemed to be the Owner of the Coop Interest and
to have assumed and undertaken to carry out all of the obligations hereof
on the part of the Owner to be performed, and the Tenant does hereby
release the above named Owner from any claim or liability arising or
accruing hereunder subsequent to such transfer of ownership or possession,
for breach of the covenant of quiet enjoyment, or otherwise.
13. Fair Market Value Renewal Option. (a) Subject to Owner's rights set
forth in subparagraph (e) below, Tenant shall have an option (the "Renewal
Option") to extend the term of this Lease for a renewal term of 5 years
(the "Renewal Term"), by giving Owner notice thereof not more than 18
months, but at least one year, prior to, the date set forth above for the
expiration of the term of this Lease (with time to be of the essence as to
the timely exercise of such Renewal Option). If Tenant shall exercise the
Renewal Option, then this Lease shall be extended for the Renewal Term upon
all of the terms, covenants, and conditions contained in this Lease, except
that, during the Renewal Term, the fixed annual rent shall be equal to the
annual market rental value (the "Market Value Rent") of the demised
premises on the date that Tenant exercises the Renewal Option (the
"Exercise Date"), determined as provided in subparagraph (b) below.
(b) The term "Market Value Rent" shall mean the annual fixed rent that a
willing lessee would pay and a willing lessor would accept in an arms-
length lease of the demised premises as of the Exercise Date. If Owner and
Tenant shall fail to agree upon the Market Value Rent within 30 days alter
the Exercise Date, then Owner and Tenant each shall give notice (the
"Determination Notice") to the other setting forth their respective
determinations of the Market Value Rent, and, subject to the provisions of
subparagraph (c) below, either party may apply to the American Arbitration
Association or any successor thereto for the designation of an arbitrator
satisfactory to both parties to render a final determination of the Market
Value Rent, The arbitrator shall be a real estate appraiser or consultant
who shall have at least 10 years continuous experience in the business of
appraising commercial real estate or commercial brokerage or leasing
business in New York City. The arbitrator shall conduct such hearings and
investigations as the arbitrator shall deem appropriate and shall, within
30 days after having been appointed, choose one of the determinations set
forth in either Owner's or Tenant's Determination Notice, and that choice
by the arbitrator shall be binding upon Owner and Tenant Each party shall
pay its own counsel fees and expenses, if any; in connection with any
arbitration under this subparagraph (b), and the pates shall share equally
all other expenses and fees of any such arbitration. The determination
rendered in accordance with
-30-
the provisions of this subparagraph (3,) shall be final and binding in
fixing the Market Value Rent. The arbitrator shall not have the power to
add to, modify, or change any of the provisions of this Lease.
(c) In the event that the determination of the Market Value Rent set forth
in the Owner's and Tenant's Determination Notices shall differ by less than
10% per rentable square foot per annum for each year during the Renewal
Term, then the Market Value Rent shall not be determined by arbitration,
but shall instead be set by taking the average of the determinations set
forth in Owner's and Tenant's Determinations Notices. Only if the
determinations set forth in Owner's and Tenant's Determination Notices
shall differ by more than 10% per rentable square foot per annum for any
year during the Renewal Term shall the actual determination of Market Value
Rent be made by an arbitrator as set forth in subparagraph (b) above.
(d) If for any reason the Market Value Rent shall not have been determined
prior to the commencement of the Renewal Term, then, until the Market Value
Rent and, accordingly, the fixed annual rent, shall not have been finally
determined, the fixed annual rent shall remain the same as payable during
the last year of the initial term of this Lease. Upon final determination
of the Market Value Rent, an appropriate adjustment to the fixed annual
rent shall be made reflecting such final determination, and Owner or
Tenant, as the case may be, shall promptly refund or pay to the other any
overpayment of deficiency, as the case may be, in the payment of fixed
annual rent from the commencement of the Renewal Term to the date of such
final determination.
(e) Notwithstanding the Renewal Option set forth above, this Lease shall
not be renewed at the end of the initial term in the event Tenant receives
written notification from Owner, which notification shall be provided to
Tenant not less than 6 months prior to the expiration of the initial term,
of Owner's intention to sell the demised premises and Owner's election not
to renew this Lease for such additional five year period. In the event of
any such election on the part of Owner, Owner shall proceed in good faith
to offer the demised premises for sale to the public and the provisions of
Paragraph 14 of this Rider shall be applicable to any such proposed sale on
the part of Owner.
14. Limited Right of First Offer. In the event that Owner elects to sell its
interest in the Corporation and its rights under the Proprietary Lease with
respect to the demised premises (collectively, the "Coop Interest") during
the initial five (5) year term of this Lease, Owner shall first offer the
Coop Interest to Tenant on such tent's and at such price that Owner shall
determine in Owner's sole discretion. If Tenant desires to purchase the
Coop Interest on such terms and at such price, Tenant shall notify Owner in
writing within 15 days of receipt of notice from Owner, time being of the
essence as to such 15 clay period, of Tenant's election to purchase the
Coop Interest and its ability to close title and pay the full purchase
price for the Coop Interest within 45 days thereafter, time being of the
essence- In the event that Tenant fails to deliver such notice or close
title as aforesaid through no fault of Owner, Owner shall be free to sell
the Coop Interest to any third party upon terms and conditions determined
in Owner's sole discretion; provided, however that Owner shall not sell the
Coop Interest on terms less favorable to Owner than
-31-
those offered to Tenant under the provisions of this Paragraph. However, in
the event Owner seeks to offer the Coop Interest for sale on such less
favorable terms and Owner receives an offer from a bona fide third party
("Third Party Offer") for the Coop Interest acceptable to Owner on such
less favorable terms, Owner shall notify Tenant of such Third Party Offer
which shall specify the purchase price for the Coop Interest and the other
terms and conditions upon which the Coop Interest is being offered.
Thereafter, Tenant shall have the right, exercisable with 15 days of the
receipt of Landlord's notice of the Third Party Offer to notify Owner in
writing of Tenant's desire to purchase the Coop Interest upon the terms and
conditions of the Third Party Offer, in which event Landlord and Tenant
shall promptly proceed to close a sale transaction with respect to the Coop
Interest at the purchase price and upon such terms and conditions specified
in Landlord's notice. In the event Tenant fails to exercise such option for
the Coop Interest specified in the foregoing notice, with the 15 day
period, or if Tenant exercises such option within such 15 day period but
Landlord and Tenant have not closed the sale transaction within 45 days
alter the date of Tenant's notice of exercise because of Tenant's
unwillingness or failure to do so through no fault of Landlord, then
Landlord's obligations under this Paragraph shall be deemed satisfied and
this Paragraph shall be of no further force and effect.
15. Notices. Any notice which is to be given by either party to the other
pursuant to this Lease shall be in writing and shall be given as follows:
(a) if such notice is to be given by the Owner to the Tenant, such notice
may be given personally by delivering the same to the Tenant, or if the
Tenant be a corporation or partnership, to any officer, partner or other
employee of the Tenant, at the demised premises or at any other place, or
by registered or certified mail, postage prepaid, return receipt requested,
or by nationally recognized overnight service providing evidence of
delivery, addressed to the Tenant at the demised premises, with a copy to
Loudeye Technologies, inc., 000 Xxxxx Xxx, Xxxxxxx, Xxxxxxxxxx 00000,
Attention: General Counsel or at such other address as the Tenant shall
hereafter designate in writing; (b) if such notice is to be given by the
Tenant to the Owner, such notice may be given personally by delivering the
same to the Owner, or if the Owner be a corporation or partnership, to any
officer, partner or other employee of the Owner, or by registered or
certified mail, postage prepaid, return receipt requested, or by nationally
recognized overnight service providing evidence of delivery, addressed to
the Owner at [5 Xxxxxxxxxx Xxxxx, Xxx. 0-X, Xxx Xxxx, Xxx Xxxx 00000, with
a copy to Xxxxxxx X. Xxxxx, Esq., Friedberg Greener Xxxxx, LLP, 000 Xxxxxxx
Xxxxxx, Xxxxx 000, Xxx Xxxx, XX 00000 or at such other address as the Owner
shall hereafter designate in writing. Any notice shall be deemed to have
been given on the date when same shall have been delivered, in the case of
personal delivery, or two days after the same shall have been properly
mailed in the case of certified or registered mail, or on the first
following business day if sent by overnight mail service. The attorneys for
either party shall have the right, but not the obligation, to send notices
on behalf of their respective clients. Notwithstanding the foregoing, all
bills may be sent directly to the Tenant by regular mail.
16. Additional Rights of Parties. (a) No tight or remedy herein conferred upon
or reserved to Lessor or Tenant is intended to be exclusive of any other
right or remedy, and each and
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every right and remedy shall be cumulative and in addition to any other
right or remedy given hereunder or now or hereafter existing at law or in
equity or by statute. The failure of Lessor or Tenant to insist at any time
upon the strict performance of any covenant or agreement, or to exercise
any option, right, power, or remedy contained herein shall not be construed
as a waiver or a relinquishment thereof for the future. A receipt by Lessor
of any Fixed Annual Rent, any additional rent, or any other sum payable
hereunder with knowledge of the breach of any covenant or agreement
contained herein shall not be deemed a waiver of such breach, and no waiver
by Lessor or Tenant of any provision hereof shall be deemed to have been
made unless expressed in writing and signed by Lessor or Tenant, as the
case may be. In addition to other remedies provided herein, Lessor or
Tenant shall be entitled, to the extent permitted by law, to injunctive
relief in case of the violation, or attempted or threatened violation, of
any of the covenants, agreements, conditions, or provisions of this Lease,
or to a decree compelling performance of any of the covenants, agreements,
conditions, or provisions of this Lease, or to any other remedy allowed to
Lessor or Tenant at law or in equity.
(b) Lessee hereby waives and surrenders for itself and all those claiming under
it, including creditors of all kinds, (1) any right and privilege which it
or any of them may have under any present or future constitution, statute,
or rule of law to redeem the Leased Premises or to have a continuance
hereof for the term hereby demised after termination of Lessee's right of
occupancy by order or judgment of any court or by any legal process or
writ, or under the terms hereof, or after the termination of the term
hereof as herein provided, and (ii) the benefits of any present or future
constitution, statute, or rule of law which exempts property from liability
for debt or for distress for rent. (c) If Lessee shall be in default in the
performance of any of its obligations hereunder, and an action shall be
brought for the enforcement thereof, in which it shall be determined that
Lessee was in default, Lessee shall pay to Owner all the expenses incurred
in connection therewith, including reasonable attorneys' fees.
17. Consent of Board of Directors of Corporation. This Lease shall not be
effective unless and until the provisions of Paragraph 15 of the
Proprietary Lease with respect to the approval of the Board of Directors of
the Corporation with respect to the sublease of the demised premises shall
have been complied with by Owner. Owner shall use reasonable efforts to
obtain such board approval as soon as practicable.
18. Additional Rights on Assignment of Lease. If Tenant shall enter into any
sublease with respect to the demised premises or any portion thereof, or
assignment of this Lease, or if there is a transfer of this Lease by
operation of law, or otherwise, and if Tenant shall receive any
consideration from its assignee or subtenant for or in connection with the
assignment or the subletting, as the case may be, or, if Tenant shall
sublet the demised premises at a rental rate (including Additional Rental)
or other periodic aggregate consideration in excess of the Fixed and
Additional Rental due hereunder, Tenant shall pay to Owner, upon receipt,
as Additional Rental hereunder, all of such consideration or excess, less
the broker's commissions, legal fees, rental concessions (not to exceed one
month), advertising and construction costs solely to ready the demised
premises for such sublet or assignment.
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19. Tenant's Right so Cancel. At any time after the first full year of the
term of this Lease, provided that Tenant is not in default under the terms
of this Lease, Tenant shall have the right to cancel this Lease, upon
delivery to Owner of ninety (90) days written notice thereof.
20. Absence of Brokers. Each parry represents that they have not dealt with
any brokers in regard to this Lease and agrees to hold harmless and
indemnify the other and its respective, officers, directors, employees and
agents from brokerage claims arising out of any act of the other by reason
of which it is claimed that a commission is due any broker.
21. Counterparts. This Lease and any Rider hereto may be executed in two or
more counterparts, each of which shall constitute an original and all of
which shall be one and the same agreement.
OWNER:
XXXXX BEAR REALTY CORP.
By: /s/ Xxx Xxxxxxx
------------------------
Name: Xxx Xxxxxxx
Title: President
LESSEE:
LOUDEYE TECHNOLOGIES, INC.
By: /s/ Xxxxx Xxxxxx
------------------------
Name: Xxxxx Xxxxxx
Title: Chief Financial Officer
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