EXHIBIT 10.26
[LOGO OF ALLIANCE BUSINESS CENTERS APPEARS HERE]
LEASE AND SERVICE AGREEMENT
This Agreement is made this 17th day of August, 1998, by and between Alliance
Lexington L.P. d/b/a ALLIANCE Business Centers ("Lessor") having offices known
-------------------------------
and numbered as Suite 2300 (the "Facility") in the building located at 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Building") and LIQUID AUDIO,
("Lessee") a(n) (corporation, partnership, individual) with an address of 000
Xxxxxxx Xxxxxx, Xxxxxxx Xxxx, XX 00000
The parties for themselves, their heirs, legal representatives, successors and
assigns, agree as follows:
1. DEMISE AND DESCRIPTION OF PROPERTY.
----------------------------------
a. Lessor leases to Lessee and Lessee leases from Lessor, the
"Premises" (defined below), being a subpart of Lessor's total leased Facility
space, for the term and subject to the conditions and covenants hereinafter set
forth and to all encumbrances, restrictions, zoning laws, regulations or
statutes affecting the Building, Facility or Premises.
b. The Premises consists of Facility office space number(s) #115 as shown
in the floor plan annexed hereto. Lessor hereby grants Lessee the privilege to
use in common with other lessees and parties that Lessor may designate certain
office amenities located in the Facility; the use of all of which are subject to
such reasonable rules and regulations as Lessor currently has in place and may
adopt from time to time. The amenities are more particularly described in
attached Exhibit "A." "The Operating Standards" as presently in place and
governing the use of the Premises and the Facility are attached in Exhibit "B".
2. USE.
---
a. The Premises shall be used by Lessee solely for general business
purposes and such other normally incident uses and for no other purpose, in
strict accordance with the Operation Standards. Additionally, Lessee shall not
offer at the Premises any services which Lessor provides to its lessees,
including, but not limited to those amenities or services described in attached
Exhibit "A". In the event Lessee breaches any provision of this paragraph,
Lessor shall be entitled to exercise any rights or remedies available to the
Lessor pursuant to this Agreement together with such other rights and remedies
as the Lessor may otherwise have and choose to exercise.
b. Lessee shall not make nor permit to be made any use of the Premises
which would violate any of the terms of this Agreement or which, directly or
indirectly, is forbidden by statute, ordinance or government regulations, which
may be dangerous to life, limb or property, which may invalidate or increase the
premium of any policy of insurance carried on the Building or on the Facility,
which will suffer or permit the Premises to be used in any manner or anything to
be brought into or kept there which, in the sole judgment of Lessor, shall in
any way impair or tend to impair the high quality character, reputation or
appearance of the Building or the Facility, or which may or tend to impair or
interfere with any services performed by Lessor for Lessee or for others.
3. TERM.
----
a. The term of this Agreement shall be for a period of 6 months,
commencing 9:00 a.m. on the 1st day of September, 1998, and ending 5:00 p.m. on
the 28th day of February, 1999, unless renewed as provided in paragraph "3(b)"
herein.
b. Upon the ending term date set forth herein or any extension thereof,
the Agreement shall be extended for the same period of time as the initial term
and upon the same terms and conditions as herein contained except for the amount
of base rental charges, which shall each be increased by seven percent (7%),
unless either party notifies the other in writing by certified or registered
mail, return receipt requested, or delivered by hand that the Agreement shall
not be extended within the period hereinafter specified or automatically
renewed. If Lessee has less than three offices, such notice shall be given at
least 60 days prior to the expiration date of this Agreement. If Lessee has
three or more offices, such notice shall be given at least 90 days prior to the
expiration date of this Agreement.
c. In the event the entire Premises or the Facility are damaged,
destroyed or taken by eminent domain or acquired by private purchase in lieu of
eminent domain so as to render the Premises fully untenantable and unrestorable
in Lessor's sole judgment, then within 90 days thereafter by written notice to
the other party, either party shall be able to terminate this Agreement, which
will terminate as of the date thereof.
4. RENT.
----
a. For and during the term of this Agreement, Lessee shall pay Lessor as
rent for the Premises a total rental of $8,700, payable in equal monthly
installments of $1450, each payable in advance of the first day of each calendar
month after the commencement of the term, or a daily prorated amount for any
partial calendar month during the term. If any payment of rent or other charges
due under this Agreement is not received within five (5) calendar days after its
due date, the Lessee will also pay, as additional rent, a late payment charge
which shall be an amount equal to 10% of any amount owed to Lessor or $50
whichever is greater.
b. It is additionally specifically covenanted and agreed that the financial
terms of this Agreement are strictly confidential and Lessee agrees not to
knowingly or willfully divulge this information to or any other Lessee or
potential Lessee of Lessor. Any such disclosure by the Lessee of the financial
terms of this Agreement as set forth herein above, shall constitute a material
breach of this Lease.
c. The first such payment of rental as well as the payment of the Deposit
as set forth in below shall be paid by Lessee simultaneously with execution of
this Agreement. Should the Lessee fail to make such payment prior to the
commencement of the term of this Agreement, then, at Lessor's sole option, the
Agreement shall be null and void and of no further effect.
d. The rental payable during the term of this Agreement shall be
increased on the first day of the month following notification of any rental
increase (however designated) which the Lessor might receive from the Lessor's
over-landlord ("Building"). The term "direct expenses" as used herein shall
refer to the same items and costs as are used by the Building in its
determination of expenses and costs passed on to Lessor. Lessor shall
immediately notify Lessee in writing of any such increase, and shall xxxx Lessee
for its pro rata share thereof, which xxxx Lessee shall pay promptly upon such
notification for each and every month thereafter for the balance of the term.
e. Rent charges are based on the value of the rental Premises and
services to be used by 1 person(s) only. If more than said number of person(s)
habitually use the Premises or services, the Fixed Monthly Rental Charges will
be increased by a factor of $150 for each additional person who habitually uses
the Premises.
f. If a Lessee check is returned for any reason, Lessee will pay an
additional charge of $100.00 per returned check and, for the purpose of
considering default and/or late charges, it will be as if the payment
represented by the returned check had never been made.
5. SECURITY DEPOSIT.
----------------
a. Lessee shall deposit with Lessor $2900, or the equivalent of two
months rent, in good or certified funds with a domestic bank, as a non-interest
bearing security deposit. Lessor may use the security deposit to cure any
default of Lessee under this Agreement, restore the Premises including any and
all furniture, fixtures and equipment provided by Lessor and vendors at the
Premises to their original condition and configuration, reasonable wear and tear
excepted, to pay for repairs to any damage to the Premises, Executive Suite or
Building, caused by Lessee or Lessee's guests, to pay any rent or other charges
which Lessee owes Lessor at or prior to the expiration of this Agreement, and to
reimburse Lessor for costs or expenses arising from any other obligation of
Lessee which Lessee has failed to perform. If Lessor transfers control or
ownership of the Premises and Lessor transfers the security deposit to such
purchaser, Lessee will look solely to the new Lessor for the return of the
security deposit, and the Lessor named in this Agreement shall be released from
all liability for the return of the security deposit.
b. The security deposit (less any sums used by Lessor in accordance with
the terms and conditions of this Agreement) will be returned within sixty (60)
days after the termination of any services rendered or expiration of the term
hereof. The security deposit shall not under any circumstance be applied in lieu
of be the final payment(s) of Fixed Monthly Rental charges or service charges
under this Agreement.
c. In the event that, by reason of the Lessee's default in its
obligations pursuant to this Agreement or otherwise, including but not limited
to the payment of the Fixed Monthly Rental Charge, any amounts due by reason of
the Lessee's use of additional services hereto and/or by reason of the Lessee's
use of telephone services as supplied pursuant to this Agreement, Lessor shall
be entitled to apply any of the security deposited pursuant to this Agreement to
any outstanding sums due or owing to the Lessor, and Lessor shall have the right
to charge the Lessee, as additional rent, such sums as are necessary to
replenish any and all amounts applied so as to cause the security to be returned
to its entire amount. The failure to pay such amounts as are necessary to
replenish the security shall be considered a breach of this Agreement and shall
entitle the Lessor to exercise any of its rights pursuant to this Agreement or
otherwise.
6. DELIVERY OF POSSESSION.
----------------------
If, for any reason whatsoever, Lessor cannot deliver possession of the
Premises to Lessee at the commencement of the term, this Agreement shall not be
void nor voidable nor shall Lessor be liable to Lessee for any loss or damage
resulting therefrom, but there shall be an abatement of rent for the period
between the stated term commencement and the time when Lessor does deliver
possession of the Premises.
7. SERVICES.
--------
a. So long as Lessee is not in default hereunder, Lessor shall make
available certain amenities to Lessee as more particularly described in Exhibit
"A." Such services shall be offered to Lessee, in conjunction with such services
being offered by Lessor to its other lessees, without charge for the reasonable
use of the same.
b. In addition, provided Lessee is not in default hereunder and provided
the cost thereof does not exceed the Security Deposit, Lessor shall make
available to Lessee certain other services the cost of which shall be billed to
the Lessee as additional rent and the payment of which shall be subject to the
same terms and conditions as those governing the payment of the Fixed Monthly
Rental Charge herein regardless of when such charges are billed to the Lessee.
8. TELEPHONE SERVICES.
------------------
a. Provided Lessee is not in default of any of the terms, covenants,
conditions or provisions of this Agreement, Lessor will make available to
Lessee, a telecommunications package which will consist of some combination of
telephone equipment, numbers, lines, conference calling, voice mail, local, long
distance and international service, and directory listing. All components of the
telecommunications package including any telephone numbers used by Lessee will
remain at all times the property of Lessor and Lessee will acquire no rights in
the components beyond the term specified by Lessor.
b. Upon Lessee's written request, Lessee shall be entitled to appoint
Lessor as its exclusive agent for the sole purpose of procuring and arranging
Lessee's local "white pages" listings. Lessor shall have no involvement nor
responsibility for any "yellow pages" listings desired by Lessee.
x. Xxxxxx shall not be liable for any interruption or error in the
performance of its services to Lessee under this Section.
Lessee waives any recourse as against the Lessor for any claimed liability
arising from the provision of telecommunication services including, but not
limited to; injuries to persons or property arising out of mistakes, omissions,
interruptions, delays, errors or defects in
transmissions occurring in the course of furnishing telecommunications services
provided same are not caused by the willful acts of the Lessor, as well any
claim for business interruption and for consequential damages.
x. Xxxxxx shall use reasonable efforts to provide Telephone Services to
Lessee in a first-class, professional manner. Telephone service charges shall be
as per Lessor's then scheduled rates for the same, or as the same may be amended
by Lessor from time to time.
e. In the event that any toll fraud is traceable to telecommunications
services employed by Lessee, such toll fraud shall be deemed to be a material
default in the Lessee, obligations hereunder. Lessee further hereby agrees to
indemnify, hold harmless and to reimburse Lessor for all charges associated with
any such toll fraud including, but not limited to, unauthorized use of calling
cards or telephone lines
f. It is expressly acknowledged and agreed that Lessor shall be the sole
and exclusive provider of telecommunication services to Lessee. Lessee hereby
agrees and covenants that it will not use any other telephone service or
telephone carrier to provide it service in the Premises. In the event that
Lessee uses or acquires any other telephone service at the Premises, such use
and/or installation shall constitute a material default in the Lessee's
obligations hereunder.
9. FURNITURE AND FIXTURES.
----------------------
At its own cost and expense, Lessor shall furnish and install furniture,
fixtures and equipment as are in Lessor's sole opinion necessary to provide
suitable office accommodations for Lessee, upon such terms and conditions
routinely applicable to the Facility. All such furniture, fixtures and equipment
shall remain Lessor's property.
10. INSURANCE; WAIVER OF CLAIMS.
---------------------------
a. Lessor has no obligation to and will not carry insurance for Lessee's
benefit. Lessor will not be liable to Lessee or to any other person for damages
on account of loss, damage or theft, to any business or personal property of
Lessee. Lessee hereby waives any claims against Lessor from any loss, cost,
liability or expense (including reasonable attorney's fees) arising from
Lessee's use of the Premises or any common areas made available to Lessee by
Lessor or from the conduct of Lessee's business, or from any activity, work, or
thing done in the Premises or common areas by Lessee or Lessee's agents,
contractors, visitors or employees. To the extent that Lessor has any liability
for any of the forgoing pursuant to any law, ordinance or statute, Lessee shall
seek recovery for such loss(es)/or damage(s) from its own insurance company as
provided for in subparagraph (c) herein prior to making any claims against
Lessor.
b. The Lessor shall not be liable or responsible to the Lessee for any
injury or damage resulting from the acts or omissions of Lessor, its employees,
persons leasing office space or obtaining services from the Lessor, or other
persons occupying any part of the Premises or Building, or for any failure of
services provided such as water, gas or electricity, HVAC or for any injury or
damage to person or property caused by any person except for such loss or damage
arising from the willful or grossly negligent misconduct of the Lessor, its
agents, servants, or employees or from the Lessor's failure to make repairs
which it is obligated to make hereunder. Neither Lessor or any of its agents,
employees, officers or directors shall be responsible for damages resulting from
any error, omission or defect in any work performed or provided as part of the
services rendered, whether uncompensated services or compensated services.
c. Lessee shall provide Lessor with a certificate of insurance evidencing
General/Public Liability coverage with liability limits of not less than One
Million Dollars ($1,000,000) per occurrence for Bodily Injury and/or Property
Damage Liability and One Hundred Thousand Dollars ($100,000) per occurrence for
Fire/Legal Liability. Said insurance coverage shall remain in force during the
term of this Agreement and renewals thereof. The Lessor, Alliance National, Inc,
and Alliance Business Centers, Inc. shall be named as an additional named
insured on each of these policies. Lessee's failure to provide or maintain such
insurance shall not reduce or otherwise alter Lessee's liability or
responsibility to pay any judgment rendered against Lessee for such Liability
and Damages Failure to maintain such insurance and/or to name the Lessor and its
designees, as set forth above, shall constitute a material breach of this
Agreement.
d. Both parties hereby agree to defend, indemnify and hold the other
harmless from and against any and all claims, damages, injury, loss and expenses
to or of any person or property resulting from the acts or negligence of their
agents, employees, invitees and/or licensees while in the Building, Executive
Suite and/or Premises.
e. Any fire and extended risk casualty insurance that Lessee maintains
shall include a waiver of subrogation in favor of Lessor and Building Landlord,
and any fire and extended risk insurance carried on the Facility by Lessor shall
likewise contain a waiver of subrogation in favor of Lessee.
11. WAIVER OF BREACH.
----------------
Should Lessor not insist upon the strict performances of any term or
condition of this Agreement or to exercise any right or remedy available for a
breach thereof, and no acceptance of full or partial payment during the
continuance of any such breach shall constitute a waiver of any such breach or
any such term or condition. No term or condition of this Agreement required to
be performed by Lessee and no breach thereof, shall be waived, altered or
modified, except by a written instrument executed by Lessor. No waiver of any
breach shall affect or alter any term or condition in this Agreement, and each
term or condition shall continue in full force and effect with respect to any
other then existing or subsequent breach thereof.
12. OPERATING STANDARDS.
-------------------
The Operating Standards attached to this Agreement as Exhibit "B" are
hereby made an integral part of this Agreement. Lessee, its employees, agents,
guests, invitees, visitors and/or any other persons caused to be present in and
around the Premises by the Lessee shall perform and abide by the rules and
regulations and any amendments or additions to said rules and regulations as
Lessor may make. In addition, Lessee, its employees and agents shall abide by
all applicable governmental rules, regulations, statutes and ordinances relating
in any way to the Premises or the Facility or Lessee's use or occupancy of the
Premises or the Facility; failing which Lessee shall be in default hereunder and
shall pay any fines or penalties imposed for such violation(s) directly to the
appropriate governmental authority or to Lessor, if Lessor has paid such amount
on behalf of Lessee. Such remedy shall not be exclusive. It is hereby further
explicitly agreed and understood that full compliance with the Operating
Standards as set forth constitutes a material obligation of this Agreement, and
that the failure to so comply shall
constitute a violation of this Agreement entitling the Lessor to exercise any of
its remedies pursuant to this Agreement or otherwise.
13. EMPLOYMENT OF LESSOR'S EMPLOYEES.
--------------------------------
a. Lessee agrees that it will not, during the term of this Agreement and
any renewals thereof, or for a period of one year after the expiration or sooner
termination of this Agreement, hire or issue an offer to employ any person who
is or has been an employee of Lessor or Lessor's agent without prior consent
from Lessor. If Lessee either hires an employee of Lessor or Lessor's agent; or
hires any person who has been an employee of Lessor or its agent within six
months prior to the time they are hired by Lessee, Lessee will, at Lessors sole
option, be liable to Lessor for liquidated damages equal to six months wages of
the employee, at the rate last paid that employee by Lessor.
b. If Lessor assists in hiring an employee for Lessee, Lessee shall pay
to the Lessor a commission equal to 20% of that employee's annual salary. The
provisions hereof shall survive the expiration or sooner termination of the term
thereof.
14. ALTERATION.
----------
If Lessee requires any special wiring or office alterations for
extraordinary business machines or other purposes not consistent with the
current wiring, extraordinary telephone equipment or computer equipment. Such
alteration shall be done (i) only with the express written permission of the
Lessor, and if said permission is granted, then (ii) by an agent designated by
Lessor at Lessee's cost. The electrical current shall be used for ordinary
lighting purposes only, unless written permission to do otherwise shall first
have been obtained from Lessor at an agreed cost to Lessee. Lessor further
reserves the sole and exclusive right to limit the number and type of ??xxxx and
telephone equipment Lessee can install in the leased Premises.
15. RE-ENTRY.
--------
Lessor and its agents shall have the right to enter the Premises at any
time for the purpose of making any repairs, alterations, inspections which it
shall deem necessary for the preservation, safety or improvements of said
Premises, without in any way being deemed or held to have committed an eviction
(constructive or otherwise) of or trespass against Lessee.
16. RELOCATION.
----------
a. Lessee agrees that the Lessor may, in its sole discretion, relocate
the lessee from its present Premises to a like or similar office space within
the same facility upon ten (10) days notice to the Lessee. In the event that the
Lessor requires the Lessee to relocate, the Lessor hereby agrees to bear the
reasonable cost of any such relocation, which cost shall be limited to the cost
associated with the physical transfer of the Lessee's property to any different
office, which the Lessor may designate.
b. In the event that any such relocation is effected, the Lessee hereby
acknowledges that, unless otherwise agreed in writing, that all of the terms and
conditions of this Agreement shall remain in full force and effect.
17. ASSIGNMENT AND SUBLETTING.
-------------------------
No assignment or subletting of the Premises, this Agreement or any part
thereof shall be made by Lessee without Lessor's prior written consent, which
consent may be withheld for any or no reason in Lessor's sole discretion.
Neither all nor any part of Lessee's interest in the Premises or this Agreement
shall be encumbered, assigned or transferred, in whole or in part, either by act
of the Lessee or by operation of law
18. SURRENDER.
---------
a. On expiration of the term, any extended term, or sooner termination of
this Agreement, Lessee shall promptly surrender and deliver the Premises to
Lessor, without demand, and in as good condition as when let, ordinary wear and
tear excepted.
b. Upon Lessee serving a notice of cancellation as provided in 3b herein
Lessor shall have the right to show Lessee's Premises during the 60 day period
(for one or two offices) or 90 day period (for three or more offices) as the
case may be.
c. Without prior written approval of Lessor, Lessee shall not remove any
of its property from the Premises upon termination of this Agreement or at any
other time, except during Lessor's normal business hours. In the event Lessor
consents to Lessee's removing property before or after normal business hours,
any expenses incurred by Lessor as a result, including but not limited to
expenses for personnel, security, elevator, utilities and the like shall be paid
by Lessee in advance, to the extent determinable by Lessor, by certified and/or
bank check.
d. If Lessee vacates the Premises and leaves behind any property,
whatsoever, same will be deemed abandoned by Lessee and may be disposed of by
Lessor at Lessee's expense. If Lessee defaults in the payment of sums due to
Lessor, and Lessor changes the locks, removes Lessee's property, or otherwise
denies access to Lessee, Lessor shall not be liable for conversion or partial,
actual and/or constructive eviction.
19. HOLDING OVER.
------------
a. In the event that Lessee, should not renew this Agreement in
accordance with the terms and conditions hereof, and/or fail to surrender the
Premises upon the expiration of the term of the Agreement as provided herein,
Lessee agrees to pay Lessor, as liquidated damages, a sum equal to twice the
monthly rent and all additional charges for services provided by Lessor to
Lessee, for each month that Lessee retains possession of the Premises or any
part thereof; provided, however, that the acceptance of such sums, representing
liquidated damages shall not be deemed to be permission to Lessee to continue in
possession of the Premises.
20. DEFAULT AND REMEDIES.
--------------------
a. If the Lessee shall default in fulfilling any of its terms,
conditions, covenants or provisions of this Agreement, including but not limited
to:
1. Payment of fixed Monthly Rental Charges and/or any other charges
hereunder within ten days of the date such charges become due;
2. Becomes comes insolvent, makes an assignment for benefit of creditors,
or files a voluntary petition under any bankruptcy or insolvency law, or
has filed against it an involuntary petition under any such law;
3. Defaults in fulfilling any of the terms, conditions, covenants or
provisions of this Agreement including but not limited to the breach of any
of the terms and conditions set forth in the exhibits attached hereto.
4. The abandonment and/or vacatur of the Premises by the Lessee;
then, after five days notice of any such default(s), the Lessor may, at its sole
discretion, terminate this Agreement upon five days notice to the Lessee, and
upon the expiration of such notice period, the Lessee shall quit and surrender
the Premises to the Lessor. In the event that the Lessee fails to quit and
surrender the Premises, the Lessor may re-enter and take possession of the
Premises and remove all persons and property therefrom, as well as disconnect
any telephone lines installed for the benefit of Lessee, without any liability
whatsoever to Lessee. In addition, Lessor may elect concurrently or alternately
to accelerate all of Lessee's obligations hereunder including without limitation
the rental, direct expenses, Schedule B Costs, and Telephone Services costs,
and/or the reletting of the Premises or any part thereof, for all or any part of
the remainder of said term, to a party satisfactory to Lessor, at any monthly
rental rate. Lessor, in its sole discretion, may accept notwithstanding the
foregoing, Lessor shall have no obligation, implied or otherwise, to mitigate
its damage(s) under such circumstances.
b. Should Lessor be unable to re-let the Premises, or should each monthly
re-rental be less than the rental, Lessee is obligated to pay under this
Agreement or any renewal thereof, at Lessor's option Lessee shall pay the amount
of such deficiency, plus the expenses of reletting, immediately in one lump sum
(if allowable under law) to Lessor upon demand and/or as such obligations
accrue.
c. If Lessee shall default in the observance or performance of any term
or covenant on Lessee's part to be observed or performed under or by virtue of
any of the terms or provisions in any article of this lease, then, unless
otherwise provided elsewhere in this lease, Lessor may immediately or at any
time thereafter and with notice perform the obligation of Lessee thereunder, and
if Lessor, in connection therewith or in connection with any default by Lessee
in the covenant to pay rent hereunder, makes any expenditures or incurs any
obligations for the payment of money, including but not limited to attorney's
fees, in instituting, prosecuting or defending any actions or proceeding, such
sums so paid or obligations incurred with interest and costs shall be deemed to
be additional rent hereunder and shall be paid by Lessee to Lessor rendition of
any xxxx or statement to Lessee therefor, and if Lessee's lease term shall have
expired at the time of making of such expenditures or incurring of such
obligations, such sums shall be recoverable by Lessor as damages.
21. MALL & TELEPHONE FORWARDING.
---------------------------
a. After termination or expiration of the term of this Agreement, Lessee
hereby agrees that it will take all reasonable steps to notify all parties of
Lessee's new address and phone numbers. Lessor shall have no obligation, to
notify any person or entity of Lessee's now address and/or phone numbers, except
as expressly provided herein.
x. Xxxxxx will, unless otherwise instructed by Lessee in writing, forward
mail to Lessee at its new address and give out new telephone number via a voice
mail message for a period of three (3) months at the rate of $150.00 per month,
which sums shall be deducted from any amounts deposited with the Lessor as
security hereunder and paid to the Lessor in advance. In the event that there
is not sufficient security remaining on deposit to pay for the charges set forth
herein, unless the Lessee shall pay the charges set forth herein to the Lessor
in advance, Lessor shall have no obligation to provide the services set forth
herein.
22. NOTICES.
-------
Any notice under this Agreement shall be in writing and shall be either
delivered by hand or by first class mail to the party at the address set forth
below. Lessor hereby designates its address as:
ALLIANCE BUSINESS CENTERS
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Management
with a copy by regular first class mail to:
ALLIANCE Business Centers
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attn: Legal Department
Lessee hereby designates its address (which address must be an address within
the United States), as
Liquid Audio
Attn: Xx. Xxxx Xxxxxxx or Finance/Controller
000 Xxxxxxx, Xxxxxxx Xxxx, XX 00000
Phone (000) 000-0000 or 2032
Fax: (000) 000-0000
If such mail is properly addressed and mailed, as above, it shall be deemed
notice for all purposes, given when sent or delivered, even if returned as
undelivered.
23. LANDLORD'S ELECTION UNDER THIS AGREEMENT.
----------------------------------------
Upon early termination of the main Building lease, this Agreement shall
terminate unless the Building Landlord under the main lease elects to have this
Agreement assigned to the Building Landlord or another entity as provided in the
main lease. Upon notice to Lessor of the termination of the main lease and such
election, (i) the Agreement shall be deemed to have been assigned by Lessor to
the Building Landlord or to such other entity as is designated in such notice by
the Building Landlord, (ii) the Building Landlord shall be deemed to be the
Lessor under this Agreement and shall assume all rights and responsibilities of
Lessor under this Agreement, and (iii) Lessee shall be deemed to have attorned
to the Building Landlord as Lessor under this Agreement.
24. TIME OF ESSENCE.
---------------
Time is of the essence as to the performance by Lessee of all covenants,
terms and provisions of this Agreement.
25. SEVERABILITY.
------------
The invalidity of any one or more of the sections, subsections, sentences,
clauses or words contained in this Agreement or the application thereof to any
particular set of circumstances, shall not affect the validity of the remaining
portions of this Agreement or of their valid application to any other set of
circumstances. All of said sections, subsections, sentences, clauses and words
are inserted conditionally on being valid in law, and in
the event that one or more of the sections, subsections, sentences, clauses or
words contained herein shall be deemed invalid, this Agreement shall be
construed as if such invalid sections, subsections, sentences, clauses or words
had not been inserted. In the event that any part of this Agreement shall be
held to be unenforceable or invalid, the remaining parts of this Agreement shall
nevertheless continue to be valid and enforceable as though the invalid portions
had not been a part hereof. In addition, the parties acknowledge (i) that this
Agreement has been fully negotiated by and between the parties in good faith and
is the result of the joint efforts of both parties, (ii) that both parties have
been provided with the opportunity to consult with legal counsel regarding its
terms, conditions and provisions and (iii) that regardless of whether or not
either party has elected to consult with legal counsel, it is the intent of the
parties that in no event shall the terms, conditions or provisions of this
Agreement be construed against either party as the drafter of this Agreement.
26. EXECUTION BY LESSEE.
-------------------
The party or parties executing this Agreement on behalf of the Lessee
warrant(s) and represent(s): (i) that such executing party (or parties) has (or
have) complete and full authority to execute this Agreement on behalf of Lessee;
(ii) that Lessee shall fully perform its obligations hereunder.
27. ASSUMPTION AGREEMENTS AND COVENANTS.
-----------------------------------
This Agreement is subject and subordinate to the main Building lease
governing the Facility, under which Lessor is bound as tenant; and the
provisions of the main lease, other than as to the payment of rent or other
monies, are incorporated into this Agreement as if completely herein rewritten.
Lessee shall comply with and be bound by all provisions of the main lease except
that the payment of rent shall be governed by the provisions of this Agreement,
and Lessee shall indemnify and hold Lessor harmless from and against any claim
or liability under the main lease of Lessor arising from Lessee's breach of the
Main Lease or this Agreement. Lessor covenants and warrants that the use of the
Premises as a business office is consistent with and does not violate the terms
of the main lease.
28 COVENANT AND CONDITIONS.
----------------------
Each term, provision and obligation of this Agreement to be performed by
Lessee shall be construed as both a covenant and condition.
29. ENTIRE AGREEMENT.
----------------
This Agreement embodies the entire understandings between the parties
relative to its subject matter, and shall not be modified, changed or altered in
any respect except in writing signed by all parties.
30. COUNTERPARTS.
------------
This Agreement may be executed in two or more counterparts, each of which
shall be deemed to be an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, Lessor and Lessee have executed this Agreement as of
the date first above written.
LESSOR ALLIANCE BUSINESS CENTERS
By: Xxxxx Xxxxx, General Manager
----------------------------------
LESSEE: LIQUID AUDIO
(If a corporation)
By: /s/ [SIGNATURE ILLEGIBLE]
----------------------------------
Title: CFO
------------------------------
[Corporate Seal]
Tax ID Number 00-0000000
-----------------------
LESSEE:
(If an individual or partnership)
By: _________________________________
By: _________________________________
EXHIBIT "A"
-----------
. Furnished Private Office
. Furnished, Decorated Reception Room with Professional Receptionist
. Personalized Telephone Answering During Office Hours
. 24 hour Voicemail
. 4 hours of Conference Room or private furnished offices, subject to prior
scheduling and use by other lessees
. Corporate Identity on Lobby Directory where Available
. Complete Mail Room Facility
. Receipt of Mail and Packages
. Complete Kitchen Facilities with Coffee Machine
. Utilities and Maintenance
. HVAC During Normal Business Hours
. Janitorial Services
. 8 hours per month courtesy use of other ALLIANCE Business Centers
affiliated facilities. Locations subject to current affiliation and
availability.
EXHIBIT "B" OPERATING STANDARDS
-------------------------------
1. Lessees and their guests will conduct themselves in a businesslike manner,
proper attire will be worn at all times, and the noise level will be kept
to a level so as not to interfere with or annoy other Lessees
2. Lessee shall not provide or offer to provide any services to Lessor's
customers if such services are available from Lessor
3. Lessee will not affix anything to the walls of the Premises without the
prior written consent of the Lessor
4. Lessee will not prop open any corridor doors, exit doors or doors
connecting corridors during or after business hours.
5. Lessees using public areas may only do so with the consent of the Lessor,
and those areas must be kept neat and attractive at all times
6. Lessee will not conduct any activity within the Premises, Executive Suite
or Building, which in the sole judgment of the Landlord will create
excessive traffic or is inappropriate to the executive office suite
environment.
7. Lessee may not conduct business in the corridors or any other areas except
in its designated offices or conference rooms without the written consent
of Lessor.
8. All corridors, halls, elevators and stairways shall not be obstructed by
Lessee or used for any purpose other than normal egress and ingress.
9. No advertisement, identifying signs or other notices shall be inscribed,
painted or affixed on any part of the corridors, doors, or public areas.
10. Without Lessor's specific prior written permission, Lessee is not permitted
to place "mass market", direct mail or advertising (i.e. newspaper,
classified advertisements, yellow pages, billboards) using Lessor's
assigned telephone number or take any such action that would generate a
excessive of incoming calls.
11. Lessee shall not solicit clients of Lessor or and their employees in the
Building without first obtaining Lessor's prior written approval.
12. Immediately following Lessee's use of conference room space and/or
audio/visual equipment, Lessee shall clean up and return the space and
equipment to the state and condition it was in prior to Lessee's use. If
not, Lessor may charge Lessee for any other expenses required to restore
the conference space and/or equipment to its original condition.
13. Lessor must be notified in writing if Lessor desires to utilize the
conference room or other common areas of the Executive Suite during evening
or weekend hours. Lessor may deny the Lessee access if the desired usage is
inappropriate and may disrupt normal operations.
14. Lessee shall not, without Lessor's written consent, store or operate any
computer (except a desktop/laptop computer or fax machine) or any other
large business machines, reproduction equipment, heating equipment, stove,
speaker phones, radios, stereo equipment or other mechanical amplification
equipment, refrigerator or coffee equipment, or conduct a mechanical
business, do any cooking, or use or allow to be used on the Premises oil,
burning fluids, gasoline, kerosene for heating, warming or lighting. No
article deemed extra hazardous on account of fire or any explosives shall
be brought into said Premises or Facility. No offensive gases, odors on
liquids shall be permitted.
15. Lessee will bring no animals into the Premises or Facility except for those
assisting disabled individuals.
16. Lessee shall not remove furniture fixtures or decorative material from
offices or common areas without the written consent of Lessor.
17. Lessee shall not make any additional copies of any Lessor issued keys. All
keys and security cards are the property of Lessor and must be returned
upon request or by the close of the business on the expiration or sooner
termination of the Agreement term. Any lost or unreturned keys or cards
shall incur a $25.00 per item charge and the cost to re-key the office.
18. Lessee shall not smoke nor allow smoking in any area of the Facility,
including the Premises, and shall comply with all governmental regulations
and ordinances concerning smoking.
19. Lessee shall not allow more than three visitors in the reception lobby of
the Premises at any one time.
20. Lessee's parking rights (if any) are defined by Lessor's Agreement with the
owner of the Building. Landlord reserves the right to modify parking
arrangements if required to do so by Building management.
21. Lessee shall cooperate and be courteous with all other occupants of the
Facility and Lessor's staff and personnel.
22. Lessor reserves the right to make such other reasonable rules and
regulations as in its judgment may from time to time be needed for the
safety, care, appropriate operation and cleanliness of the Facility.
[LOGO OF ALLIANCE BUSINESS CENTERS APPEARS HERE]
LEASE AND SERVICE AGREEMENT
INTERNET T1 ACCESS RIDER
RE: Lease and Service Agreement between Alliance Lexington LP and Liquid audio
---------------------- ------------
("Agreement"). d/b/a alliance Business Centers
DATE: 10-20-98
--------
CENTER: 000 Xxxxxxxxx Xxx.
------------------
a. Provided Lessee is not in default of any of the terms of the Agreement
(including, without limitation, the provisions of this Rider) Lessor will
make available to Lessee non-exclusive access to Lessor's dedicated
Internet T1 data line ("Internet Access"). Lessee shall be entitled to use
the Internet Access for web browsing, e-mail, file transfers and general
low bandwidth use of Internet technologies. Lessee's use of the Internet
Access is not to exceed 256 kbps for over 10 hours in any calendar month.
Lessor reserves the right to monitor the average and aggregate usage of the
Internet Access by Lessee. Fees and charges for the Internet Access will be
as per Lessor's scheduled rates for the same, which rates are subject to
change. Lessor reserves the right to charge additional fees and charges for
the provision of services beyond those described above, including, without
limitation, high bandwidth applications, web hosting or other Internet
services, video conferencing, streaming technologies and/or use of the
Internet Access in excess of the allotted amount at Lessor's standard rates
for same.
b. In connection with the provision of Internet Access, Lessor will provide an
Internet router and, at Lessee's request and for customary rates,
connectivity services. Unless otherwise agreed, Lessee will be responsible
for providing workstations and network interface cards. Lessor will provide
limited security in connection with the Internet Access through Network
Address Translation. Any other additional security desired by Lessee shall
be provided at Lessee's sole cost and expense and shall be installed by
Lessee only upon the prior written consent of Lessor.
c. Lessee will be responsible for any software and content displayed and
distributed by Lessee or, if permitted by, Lessee's web hosting customers,
if any. Lessee's (and Lessee's customers') use of the Internet Access will
be subject to all terms and conditions of the Agreement, this Rider and to
applicable law. Lessor reserves the right to discontinue the provision of
Internet Access at any time, without liability to Lessor, if Lessor
determined in its sole discretion that Lessee's (or Lessee's customers')
use of the Internet Access is inappropriate, illegal or otherwise
inconsistent with the provisions of the Agreement and this Rider or with
the rules of proper etiquette of Lessor's Internet services provider,
Lessee will indemnify Lessor for any claims, damages, or expenses suffered
by Lessor arising out of or relating to the improper or illegal use by
Lessee or Lessee's customers' of the Internet Access, including, without
limitation, any such claims, damages, or expenses arising out of or
relating to any termination of Lessor's Internet Access by its internet
services provider. Lessor also may, in its sole discretion and without any
cause or reason whatsoever, terminate the Internet Access upon 30 days'
written notice to Lessee.
d. Lessee waives any recourse as against lessor for any claimed liability or
damage arising from the provision of Internet Access (which for these
purposes shall include the installation by Lessor or its subcontractors of
third party software necessary for the provision of such access) as well as
any claim for business interruption (including loss of data) and for
consequential damages. All other terms of the Agreement will remain in full
force and effect. This agreement is subject and subordinate to the main
"Lease and Services Agreement."
ACCEPTED BY LESSOR: ACCEPTED BY LESSEE:
By: Xxxxx Xxxxx, General Manager By: Xxxx Xxxxxxx
---------------------------- ------------------------------
Date: 10-20-98 Title: VP Content Development
---------------------------
Date: 10/20/98
----------------------------
[LOGO OF ALLIANCE BUSINESS CENTERS APPEARS HERE]
LEASE AND SERVICE AGREEMENT
OFFICE RIDER
RE: Lease and Service Agreement between Alliance Lexington LP d/b/a Alliance
Business Centers and LIQUID AUDIO ("Agreement").
DATE: February 1, 1999
CENTER: 000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx "0x" of the Agreement is hereby modified as follows:
In addition to the current offices occupied by Lessee, Lessee shall now occupy
facility office space number #23.
In modifying Paragraph "4a" of the Agreement, Lessee shall pay Lessor as rent
for office #23 an additional $13,200, payable in equal monthly installments of
$2,200. The lease terms for office #23 shall be for (6) six months, beginning
March 1, 1999 and ending on August 31, 1999.
This notice shall also serve to advise you that pursuant to Paragraph "3a" of
the the Agreement, the term of the Agreement dated August 17, 1998, has been
extended (6) six months, so that said term shall expire on August 31, 1999. Your
new charge for office #115 is $9,300, payable in equal monthly installments of
$1550.
All other terms and conditions of the Agreement shall remain in full force and
effect.
ACCEPTED BY LESSOR: ACCEPTED BY LESSEE:
ALLIANCE BUSINESS CENTERS LIQUID AUDIO
By: /s/ Xxxxx Xxxxx, General Manager By: /s/ Xxxx Xxxxxxx
--------------------------------- ---------------------------
Date: 2/5/99 Title: VP Content Development
-------------------------------- ------------------------
Date: 2/5/99
-------------------------
