EXHIBIT 10.27
LEASE
THIS AGREEMENT, entered into as of September 1, 1998 by and between Liquid
Audio a corporation having an office and place of business c/o 000 Xxxxxxx Xx,
Xxxxxxx Xxxx, XX 00000 Connecticut, acting herein by its President hereunto duly
authorized (hereinafter referred to as "Lessee"), and New Retail Concepts Ltd, a
New York corporation, having a place of business at 00 Xxxxxx Xxxxxx in the Town
of Westport, County of Fairfield and State of Connecticut, acting herein by Xxxx
Xxxxxx, it's President, hereunto duly authorized and (hereinafter referred to as
"Lessor");
WITNESSETH:
WHEREAS, Lessee wishes to lease, rent and hire the premises described
herein from the Lessor and Lessor wishes to lease same to Lessee; and,
NOW, THEREFORE, in consideration of the premises and of the sum of One
($1.00) Dollar by each of the parties hereto to the other in hand paid, receipt
whereof is hereby acknowledged, the parties hereto convenant and agree that
Lessor hereby demises and leases to Lessee, and Lessee hereby hires and takes
from Lessor the premises, which are more particularly described in Article 1 of
this Lease.
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TO HAVE AND TO HOLD such premises for the term and upon the terms and
conditions herein provided.
IT IS HEREBY MUTUALLY CONVENANTED AND AGREED by and between Lessor and
Lessee that this Lease is made upon the foregoing and upon the following
agreements, terms; covenants and conditions:
1. PREMISES. The Lessor hereby leases to the Lessee and the Lessee hereby
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hires from the Lessor, one office & Shared mailroom/waiting area upon the terms
and conditions set forth herein, those certain premises, known as 00 Xxxxxx
Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx, consisting of approximately Two hundred fifty
(250) square feet* (the "Demised Premises"), in the shopping center located at
Bridge Square and Riverside Avenue, Westport, Connecticut, the entire premises
being described in Exhibit A attached hereto and known as Bridge Square
(hereinafter the "Center"). The Demised Premises are more particularly set forth
on the floor plan, attached hereto as Exhibit B, and incorporated herein by
reference.
2. REPRESENTATIONS. Lessor warrants and represents that it has the full
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right as a bona fide tenant of Mill Pond Farm, power and authority to enter into
this Lease for the term herein granted, and to grant the rights to the Lessee
herein contained. [INSERT RIDER - SEE ATTACHED]
Lessee hereby acknowledges and represents that neither the Lessor nor
Lessor's agents have made any representations or
Square Footage used to indicate approximate size of space Leased and not to
form a critical condition of this Lease.
* Square Footage used to indicate approximate size of space Leased not to
form a critical condition of this Lease.
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promises with respect to the Demised Premises and/or the Center except as are
herein expressly set forth. Lessee acknowledges that it has examined the Demised
Premises and accepts them in their present condition.
3. USE. Lessee may use and occupy the Demised Premises as an
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administrative office, and only of the Lessee and for no other purpose or
purposes whatsoever. Lessee shall not use or knowingly permit any part of the
Demised Premises and/or the Center to be used for any unlawful purpose, nor
shall the Lessee use or occupy or permit the Demised Premises and/or the Center
to be used or occupied, nor do or permit anything to be done in or on the
Demised Premises and/or the Center, in a manner which will in any way violate
any certificate of occupancy or ordinance, rule or regulation affecting the
Demised Premises and/or the Center, or make void any insurance then in force
with respect thereto, or which will make
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it impossible to obtain fire or other insurance required to be furnished
hereunder, or which will cause or be reasonably likely to cause structural
damage to the building or any part thereof, or which will constitute a public or
private nuisance, and shall not use or occupy or permit the Demised Premises
and/or the Center to be used or occupied in any manner which will violate any
laws or regulations of any governmental authority.
4. TERM. The term of this Lease shall be 6 months commencing on Sept 1,
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1998 and terminating at 12:00 o'clock midnight on February 28, 1999.
5. BASE RENT. The total base rent for the term hereof shall be the sum of
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Four thousand two hundred dollars (4200.00) plus a pro-rated share of utilities.
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DOLLARS in lawful money of the United States. Said rent shall be payable in
monthly installments of: Seven hundred dollars (700.00) plus utilities as
defined on page 4 per month, in advance, upon the first day of each and every
month commencing on Sept 1, 1998 and on the first day of each month thereafter,
through and including February 1, 1998, subject to the increments as provided
hereinbelow.
Said rent shall be payable by the Lessee, to the Lessor, at the Lessor's
offices at 00 XXXXXX XXXXXX Xxxxxxxx, Xxxxxxxxxxx 00000, or to such other
person, firm or corporation or at such other place or places as the Lessor shall
designate, from time to time, in writing. In the event the Lessee shall fail to
pay the base rent and any additional rent reserved and provided for herein
within ten (10) days after same shall become due, the Lessee shall pay to the
Lessor, as further additional rent, a late fee equal to five (5%) percent of
each base and additional rental installment then due hereunder, in addition to
such base and additional rental installment and other payments then due, which
the parties agree is a reasonable estimate of the sums necessary to cover the
Lessor's additional expenses occasioned by such late payment. In addition to the
late fee rent payments received after the tenth (10th) day after same shall
become due will accrue interest after the first day after same shall become due
at twelve (12) percent per annum.
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6. ADDITIONAL RENT. A. In the event of any dispute or action by Lessor
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claiming default by Lessee under any terms of this Lease, Lessee agrees to pay
as additional rent, all expenses, disbursements, outlays, advances, costs and
attorneys' fees plus interest at the rate of twelve (12%) percent per annum and
costs of collection which the Lessor may incur in effecting or enforcing any of
the terms of this Lease or the Lessee's obligations hereunder, whether or not
formal court proceedings are commenced, unless the dispute is resolved in
Lessee's favor. Any such expenses, disbursements outlays, advances and attorneys
fees, together with interest at the rate of twelve (12%) percent per annum,
shall be paid by Lessee to Lessor within ten (10) days of rendition of any xxxx
or statement to Lessee therefor. In the event the Lessee shall fail to pay the
additional rent as provided for herein within ten (10) days after same shall
become due, the Lessee shall pay to the Lessor, as additional rent, a late fee
equal to five (5%) percent of such additional rent in addition to such
additional rent.
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B. In the event that the Lessee shall make any alterations,
modifications, installations, improvements or decorations upon the Demised
Premises which alterations, modifications, installations, improvements or
decorations shall increase or cause to be increased the Center operating costs
and/or real estate taxes and/or sewer assessments, sewer use charges, sewer
interest or other sewer charges, or other municipal, state or other assessments,
the additional rent required to be paid by the Lessee as provided for herein
shall be revised and increased to reflect ?? such increases.
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X. Xxxxxx reserves the right to stop the heating, plumbing and electric
systems, when necessary, by reason of accident, or emergency, or for repairs,
alterations, replacements or improvements, in the judgement of Lessor necessary
to be made until said repairs, alterations, replacements or improvements shall
have been completed. Lessor will make an effort to give reasonable notice of
such stoppages except in the event of an accident or emergency or other stoppage
beyond Lessor's control. And Lessor shall have no responsibility or liability
for failure to supply heat, elevator, plumbing and electric service, during said
period or when prevented from so doing by strikes, accidents or by any cause
beyond Lessor's control, or by laws, order or regulations of any federal, state
or municipal authority, or
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failure of oil or other suitable fuel supply, or inability byexercise of
reasonable diligence to obtain oil or other suitable fuel.
E. The parties agree that the heating seasons shall be the periods
between September 15 and the following May 15 and that the cooling seasons shall
be the periods between May 15 and the following September 15. Lessee shall, in
any event, cause and keep entirely unobstructed all of the vents, intakes,
outlets and grilles at all times and shall comply with and observe all
regulations and requirements prescribed by Lessor for the proper functioning of
the heating, ventilating and air-conditioning systems,
7. GARBAGE. All garbage and refuse shall be kept in the kind of container
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specified by Lessor and shall be placed outside of the Demised Premises prepared
for collection in the manner and at the times and places specified by Lessor. If
Lessor shall provide or designate a service for picking up refuse and garbage,
Lessee shall use same at Lessee's cost. Lessee shall pay the cost of removal of
any of Lessee's refuse and rubbish.
8. SECURITY. Lessee has deposited with Lessor, in connection with an
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existing lease, the sum of seven hundred ($ 700.00) DOLLARS as security. This
security deposit will continue to be
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held by the Lessor for the faithful performance and observance by Lessee of the
terms, covenants, provisions and conditions of this Lease. It is agreed that in
the event Lessee defaults in respect of any of the terms, covenants, provisions
and conditions of this Lease, including, but not limited to, the payment of base
rent and additional rent, Lessor may use, apply or retain the whole or any part
of the security so deposited to the extent reasonably required for the payment
of any base rent and additional rent or any other sum as to which Lessee is in
default or for any sum which Lessor may expend or may be required to expend by
reason of Lessee'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 Demised Premises, whether such damages or
deficiency occurred before or after summary proceedings or other re-entry by
Lessor. In the event that Lessee shall fully and faithfully comply with all of
the terms, provisions, covenants and conditions of this Lease, then, and in such
event, upon the expiration hereof, the Lessor shall return to the Lessee said
security, without interest thereon; on such date. In the event of a sale,
transfer or conveyance of the Lessor's entire interest in the premises of which
the Demised Premises form a part, Lessor shall have the right to transfer the
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security to the Transferee/Purchaser, who shall be bound by the Lessor's
obligations hereunder and Lessor shall thereupon be released by Lessee from all
liability for the return of such security; and Lessee agrees to look to the new
Lessor solely for the return of said security; and it is agreed that the
provisions hereof shall apply to every transfer or assignment made of the
security to a new Lessor. Lessee further convenants that it will not assign or
encumber or attempt to assign or encumber the monies deposited herein as
security and that neither Lessor nor its successors or assigns shall be bound by
any such assignment, encumbrance, attempted assignment or attempted encumbrance.
9. ALTERATIONS. Lessee shall make no alterations decorations,
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installations, additions or improvements in or to the Demised Premises,
including, but not limited to, any air-conditioning or cooling system, unit or
part thereof or other apparatus of like or other nature, without Lessor's prior
written consent, which consent shall not be unreasonably withheld, and then only
by contractors or mechanics approved by Lessor. If Lessor does not give its
written consent within two (2) weeks of its receipt of a request therefor, which
request is accompanied by the plans for such alterations and improvements, such
consent will be deemed to have been given. If any such alterations, additions
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or improvements are made without such consent, the Lessor shall have the right
to correct or remove them, and the Lessee shall be liable for any and all
expense incurred by the Lessor in the performance of this work. All such work,
alterations, decorations, installations, additions or improvements shall be done
at Lessee's sole expense. All alterations, decorations, installations, additions
or improvements upon the Demised Premises, made by either party, including all
paneling, decorations, partitions, railings and the like, shall become the
property of the Lessor, without payment therefor by the Lessor, and shall remain
up and be surrendered with, said Demised Premises, as a part thereof, at the end
of the term or any ?? or extension hereof, as the case may be. Nothing contained
herein shall prohibit the Lessee from removing any and all trade fixtures and/or
other items, the removal of which will not cause damage to the premises,
provided the premises are restored to their former condition at Lessee's sole
cost and expense.
Any and all personal property placed or installed in the Demised Premises
by the Lessee which shall continue to remain the property of the Lessee shall be
removed from the Demised Premises upon the expiration of the term hereof. The
Lessee shall not place a load upon any floor of the Demised Premises exceeding
125
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pounds per square foot and the Lessor reserves the right to prescribe the weight
and position of all safes and other heavy equipment installed or located in or
upon the Demised Premises by the Lessee.
The Lessee shall not permit any mechanics' or materialmen's liens to be
filed against the Demised Premises or the land and building of which the Demised
Premises form a party nor against the Lessee's leasehold interest in the Demised
Premises. If any such liens are so filed, and not discharged by the Lessee
within sixty (60) days thereafter, the Lessor, at its election, may-pay and
satisfy the same and in such event the sum so paid by the Lessor, together with
interest thereon at the rate of 12% per annum from the date of payment, shall be
deemed to be additional rent, due and payable by the Lessee immediately, without
notice or demand therefor.
Any improvements undertaken by the Lessee shall be at the Lessee's sole
cost and expense. All plans and specifications for such proposed improvements
shall be submitted to the Lessor for prior written approval at the time that
Lessee requests Lessor's consent for such improvements. All such improvements
shall be in conformance with any and all applicable building, safety, fire,
planning, zoning, health, or any and all other required codes,
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ordinances, laws, rules and regulations. Lessee shall obtain any required
permits at its cost. Lessee shall be responsible for any and all architectural,
design, construction and related fees or expenses in connection with any such
improvements to the Demised Premises. A violation of this provision shall be
deemed to be a breach of this Lease and a covenant herein.
10. REPAIRS. Lessee shall take good care of the Demised Premises
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(including plate glass and all doors) and the fixtures and appurtenances
therein. All damage or injury to the Demised Premises and to its fixtures,
appurtenances and equipment or to the building of which the same form a part
resulting from fire, explosion, air conditioning unit or system, short circuits,
flow or leakage of water, steam, or by frost or by bursting or leaking of pipes
or plumbing works, or any other cause or condition, or any damage or injury
caused by the Lessee in moving in or out of the building, or installing or
removing any of the Lessee's property or fixtures, or from any other cause of
any other kind or nature whatsoever due to carelessness, omission, neglect,
improper conduct or other cause of Lessee, its servants, employees, agents or
licensees shall be repaired and restored promptly by Lessee at its sole cost and
expense to the reasonable satisfaction of Lessor. If Lessee fails to commence
such repairs or restorations
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upon twenty (20) days written notice by the Lessor to the Lessee to commence
such repairs, but due allowance shall be made for what are commonly known as
"Labor Troubles" or other causes beyond the control of Lessee, same may be made
by Lessor at the expense of Lessee and collectible as additional rent or
otherwise and shall be paid by Lessee within fifteen (15) days after rendition
of a xxxx or statement therefor. There shall be no liability on the part of
Lessor by reason of inconvenience, annoyance or injury to business arising from
Lessor, Lessee or others making any repairs, alterations or improvements in or
to any portion of the building of which the Demised Premises form a part, or in
or to fixtures, appurtenances, for equipment thereof, and no ability upon Lessor
for failure of Lessor or others to make any repairs, alterations, additions or
improvements in or to any portion of the building or of the Demised Premises, or
in or to the fixtures, appurtenances or equipment thereof. Lessee shall not
commit or permit to be committed any act or thing contrary to the applicable
state, town and county health, sanitation, safety and building laws and
ordinances, nor shall the Lessee cause or permit any waste, damage or injury to
the Demised Premises.
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the Lessee shall maintain upon all of its own equipment, furniture, fixtures,
trade fixtures or other inventory or physical assets upon the demised premises,
full replacement cost insurance in the event of casualty or loss in broad form
casualty, including coverage for malicious mischief and/or vandalism. Said
policies shall be maintained with the prohibition against cancellation without
Notice to the Lessor and the Lessee shall, from time to time, furnish to the
Lessor certificates of the existence of said policies and the payment of
premiums therefor. Any proceeds payable by the insurer to the Lessee pursuant
thereto shall be taken and held by the Lessee, to be used solely for the
replacement of any of the insured articles owned by the Lessee and located on
the demised premises within the demised premises and for no other purpose.
12. DAMAGE AND DESTRUCTION. In the event that the Demised
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Premises shall be partially damaged by fire or the elements, the Lessee shall
give immediate notice thereof to the Lessor, and the same shall be repaired at
the expense of the Lessor as speedily as possible (but due allowance shall be
made for any delay arising in connection with adjustment of the fire insurance
loss, or from what are known as "Labor Troubles", or other causes beyond the
control of the Lessor) and the rent accruing shall not cease; in the event that
the damage should be so extensive so as to render the Demised Premises
untenantable, the rent shall cease until such time as the Demised Premises shall
again be put in repair, but in the event of the building being damaged by fire
or otherwise to such an extent as to render it necessary in the judgment of the
Lessor to rebuild the same (and whether or not the Demised Premises be
affected), then, at the Lessor's election, upon notice to the Lessee, and from
thenceforth this Lease shall cease and come to an end, and the rent shall be
apportioned and paid up to the date of such damage. If the Demised Premises are
untenantable and if the Lessor shall not have repaired such damage within one
ninety (90) days, or if said damage shall not be repairable within said one
hundred ninety (90) days, from the date of such loss, then in either event, this
Lease shall be
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terminable at the option of the Lessee or the Lessor upon written Notice
pursuant to the provisions of this Lease furnished to the other party.
If the Demised Premises shall be partially damaged, the base rent, but not
additional rent, shall be abated to an extent corresponding to the part so
damaged and for the period during which the partially damaged Demised Premises
cannot be reasonably utilized by the Lessee.
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13. COMPLIANCE WITH APPLICABLE LAWS. The Lessee, at its sole expense,
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shall comply with all of the laws, orders and regulations of Federal, State,
County and Municipal Authorities, and with any direction of any public officer
or officers, pursuant to law, which shall impose any violation, order or duty
with respect to the Demised Premises, or the use or occupation thereof. Lessee
shall not do or permit to be done any act or thing upon the Demised Premises,
which will invalidate or be in conflict with fire insurance or liability
insurance policies covering the building of which the Demised Premises form a
part, and fixtures and property therein, and shall not do, or permit to be done,
any act or thing upon the Demised Premises which shall or might ?? subject
Lessor to any liability or responsibility for injury to any person or persons or
to property by reason of any business or operation being carried on upon the
Demised Premises or for any other reason. Lessee, at its sole expense, shall
comply with all rules, orders, regulations or requirements of the Board of Fire
Underwriters, or any other similar body, and shall not do, or permit anything to
be done, in or upon the Demised Premises, or bring or keep anything therein,
except as now or hereafter permitted by the Fire Department, Board of Fire
Underwriters, Fire Insurance Rating Organization or other authority having
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jurisdiction and then only in such quantity and manner of storage as not to
increase the rate for fire insurance applicable to the building, or use the
Demised Premises in a manner which shall increase the rate of fire insurance on
the building of which the Demised Premises form a part, or on property located
therein, over that in effect prior to this Lease. If by reason of failure of
Lessee to comply with the provisions of this paragraph, the fire insurance rate
shall be higher than it otherwise would be then Lessee shall reimburse Lessor,
as additional rent hereunder, for that part of all fire insurance premiums
and/or liability insurance premiums thereafter paid by Lessor, which shall have
been charged because of such failure or use by Lessee and shall make such
reimbursement upon the first day of the month following such outlay by Lessor.
14. LIMITATION OF LIABILITY. If Lessor or any successor in interest
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thereto, be an individual, joint venture, limited partnership, tenancy in
common, co-partnership, unincorporated association, or other unincorporated
aggregate of individuals (all of which are referred to below individually and
collectively as an "unincorporated landlord") then anything in this Lease to the
contrary notwithstanding; Lessee shall look solely to the estate and property of
the unincorporated landlord in the Demised
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Premises for the satisfaction of Lessee's respective remedies for the collection
of a judgment (or other judicial process) requiring the payment of money in the
event of any default or breach with respect to any of the terms, covenants and
conditions of the lease to be observed and/or performed by Lessor, and no other
property or assets of such unincorporated landlord, or any general or limited
partner thereof, shall be subject to levy, execution, deficiency judgment, or
other enforcement procedure for the satisfaction of the remedies of Lessee.
16. SIGNS. The Lessee shall not expose any sign, advertisement,
illumination or
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projection of any kind whatsoever in or about windows, or inscribed or affixed
upon any part of the exterior of the Demised Premises, or in the building of
which they form a part, without the written consent and approval of Lessor.
17. MORTGAGE SUBORDINATION. This Lease and all rights of the
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Lessee hereunder are and shall be subject and subordinate to all security liens,
to lenders or mortgagees, mortgages and deeds of trust which may now or
hereafter affect the Demised Premises or the building in which same are situated
or the land upon which said building is located and to all renewals,
modifications, consolidations, replacements and extensions thereof. This clause
shall be self-operative and no further instrument of subordination shall be
required by any mortgagee. In confirmation of such subordination, Lessee shall
execute promptly any certificate that Lessor may request, and in no event later
than ten (10) days after request by Lessor. The Lessee hereby constitutes and
appoints the Lessor as the Lessee's attorney in fact to execute any such
certificate or certificates for and on behalf of the Lessee if Lessee fails to
execute any such certificate within ten (10) days after request by the Lessor.
Lessor shall use its best efforts to obtain the agreement of any subsequent
mortgage that it will not disturb Lessee's tenancy upon a foreclosure so long as
Lessee is not in default under this Lease.
18. EVENTS OF DEFAULT. In the event that the Lessee shall default in the
-----------------
payment of the base rent or additional rent or shall violate or fail to perform
each and every covenant and provision herein contained, or in the event that the
Lessee shall
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abandon the Demised Premises or leave them vacant for a period of (15) days,
then this Lease, if the Lessor shall so elect, shall terminate ten (10) days
after notice of such election by the Lessor shall have been sent by the Lessor
to the Lessee at the Demised Premises; (except in the case of non-payment of
base or additional rent, for which no notice shall be required), and thereupon
(unless the Lessee shall have completely removed or cured said default) this
Lease shall cease and come to an end as if that were the day originally fixed
herein for the expiration of the term hereof. The Lessee expressly waives
service of a Notice to Quit in an action of summary process brought for non-
payment of rent. Thereupon, said Lessor or Lessor's agents or ?? representatives
may re-enter said Demised Premises either by force or otherwise, dispossess the
Lessee or his legal representatives or any occupant of the Demised Premises by
summary proceedings or otherwise and remove their effects, it being understood
that no demand for rent and no re-entry for condition broken, as at common law
shall be necessary to enable Lessor to recover possession pursuant to the
Summary Process Statute and hereby expressly waives any such demand and re-
entry. If the Lessor so elects, Lessor may re-let the Demised Premises as the
agent for the Lessee or otherwise, and receive the rent therefor, applying the
same
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first to the payment of such expenses as the Lessor may be put to in entering
and letting, and then to the payment of the base and additional rent payable
under this Lease and the fulfillment of the Lessee's covenants hereunder; the
balance (if any) to be paid by the Lessee who shall remain liable for any
deficiency. Suit or suits for the recovery of such deficiency or damage may be
brought by the Lessor, from time to time, at the election of the Lessor and
nothing herein shall be deemed to require the Lessor to await the date whereon
the lease or the demised term would have expired by limitation had there been no
such default by the Lessee.
In the event that the Lessee shall become bankrupt or shall make a
voluntary assignment for the benefit of creditors, or in the event that a
receiver of the Lessee shall be appointed, or in the event of any proceedings
filed by or against the Lessee under the Bankruptcy Code or in State Court
receivership proceedings, then, at the option of the Lessor, and upon ten (10)
days notice to the Lessee of the exercise of such option, this Lease shall cease
and come to an end.
19. CONDEMNATION. If the Demised Premises shall be taken or condemned in
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whole or in part for public purposes, then the term of this Lease shall, at the
option of the Lessor, forthwith cease and terminate, the Lessor receiving the
entire award for land and
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building; the current rent, however, shall in such case xxxxx proportionately.
Nothing herein contained shall be deemed or construed to prevent the Lessee from
interposing and prosecuting in any condemnation proceedings a claim for the
value of any fixtures or improvements installed in or made to the Demised
Premises by the Lessee or a claim for moving and relocating expenses.
The use of term "taken or condemned" as used in the Lease shall include any
voluntary conveyance by the Lessor of the demised premises or any interest
therein to any public or quasi-public authority having the power of eminent
domain which voluntary conveyance is made as a result of a negotiation arising
out of a threat or intent to acquire the property by eminent domain proceedings.
The right of the Lessee to recover moving and relocating expenses in the event
of a condemnation shall be limited to those which are recoverable by a tenant
administratively so long as it does not diminish the full amount otherwise
recoverable in such proceeding by the Lessor.
20. HOLD OVER. Lessee shall have no right to hold over after the
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expiration of the term granted herein. In the event the Lessee shall, for any
reason, remain in possession after the expiration of the term hereof, such
possession shall be as a
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month-to-month tenancy during which time Lessee's base rent for the first month
shall be the monthly rent for the last month of the term hereof, increased by
twenty-five (25%) percent thereabove, and thereafter, for each month the Lessee
may occupy the Demised Premises, Lessee's base rent shall be increased by
twenty-five (25%) percent of the preceding month's rent. In addition, Lessee
shall be liable for the other covenants, terms, and conditions set forth herein.
21. QUIET ENJOYMENT. Lessor covenants that Lessee, upon performing all its
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obligations as contained in this Lease, shall peacefully and quietly have, hold
and enjoy the Demised Premises in its entirety and its appurtenances throughout
the term hereof without hindrance, ejection or molestation by Lessor or any
person lawfully claiming by, from, under or through Lessor.
22. OBLIGATION TO PAY RENT. The obligation of Lessee to pay rent hereunder
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and perform all of the other covenants and agreements hereunder on part of
Lessee to be performed shall in no way be affected, impaired or excused because
Lessor 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 repairs, additions, alterations or
decorations or is unable to supply or is
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delayed in supplying any equipment or fixtures.
If any of the aforedefined services are interrupted due to the fault of the
Lessor, or if any of such services are interrupted without fault of the Lessee
which services are an obligation of the Lessor to provide hereunder, the Lessor
convenants and agrees that it will use reasonable commercial efforts to obtain
the re-establishment of such service. In determining whether or not the Lessor
has used reasonable commercial efforts, under the conditions herein defined as
incumbent upon the Lessor, any act outside of the direct control of the Lessor
and generally classified under the provisions of force majeure shall extend the
Lessor's period of time for the re-establishment of any of the aforedefined
services following their interruption.
23. LESSOR'S RIGHT OF ENTRY. Lessor or Lessor's agents shall have the
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right to enter the Demised Premises at all reasonable times during business
hours and, except for emergencies, only after having notified Lessee a
reasonable period of time prior thereto, to examine the same, and to show them
to prospective purchasers or lessees of the building, and to make such repairs,
or alternations, as the Lessor may deem necessary or desirable and Lessor shall
be allowed to take all material into and upon said Demised Premises that may be
required therefor without the same
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constituting an eviction of Lessee in whole or in part and the rent reserved
shall in no way xxxxx while said repairs, alterations, improvements, or
additions are being made, by reason of loss or interruption of business of
Lessee, or otherwise Lessor will do such work in a timely fashion and with as
little interruption to Lessee's business as is possible under the then existing
circumstances. Nothing herein contained, however, shall be deemed or construed
to impose upon Lessor any obligation, responsibility or liability whatsoever,
for the care, supervision or repair of the Demised Premises or the building or
any part thereof, other than as herein provided.
24. INDEMNIFICATION: The Lessor or its agents shall not be liable for any
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damage to property of Lessee or of others entrusted to employees of the
building, nor for the loss of or damage to any property of the Lessee. Lessor or
its agents shall not be liable for any injury or damage to Lessee or other
persons or property resulting from fire, explosion, falling plaster, steam,
electricity, water, rain or snow or leaks from any part of said building or from
the pipes, appliances or plumbing works or from the roof, street or sub-surface
or from any other place or by dampness or by any other cause of whatsoever
nature, nor shall the Lessor or its agents be liable for any such damage caused
by other
28
lessees or persons in said building or caused by operations in construction of
any private, public or quasi public work; nor shall Lessor be liable for any
defects, latent or otherwise, in the Demised Premises or in the building of
which they form a part. Lessee shall reimburse and compensate Lessor as
additional rent within sixty (60) days after rendition of a statement for all
expenditures made by or damages or fines sustained or incurred by, Lessor due to
non-performance or non-compliance with or breach or failure to observe any term,
covenant or condition of this Lease upon Lessee's part to be kept, observed,
performed or complied with. Lessee shall give immediate notice to Lessor in case
of fire or accidents in the Demised Premises or in the building or defects
therein or in any fixtures or equipment. The Lessor further assumes no liability
or responsibility whatsoever with respect to the conduct and operation of the
Lessee's business to be conducted in the Demised Premises nor shall the Lessor
be liable for any accident, damage or injury to any person or persons or
property in or about the Demised Premises which are caused by the conduct and
operation of said business or by virtue of equipment or property of the Lessee
in or upon said premises.
29
25. BROKER. This lease is consummated by the Lessor in reliance on the
------
representation of the Lessee that no brokers or agents brought the Demised
Premises to the Lessee's attention or were, in any way, a procuring cause of
this Lease. The Lessor represents to the-Lessee that no brokers or agents have
any exclusive agency listing on the Demised Premises. The Lessee hereby agrees
to indemnify and hold harmless the Lessor against the claim of any brokers or
agents for a commission due by reason of this Lease, where it is alleged that
said brokers or agents
30
called the Demised Premises to Lessee's attention or interested Lessee therein,
said indemnity to include all costs of defending any such claim, including
reasonable attorneys' fees:
26. NOTICES. Whenever it is provided herein that notice, demand, request
-------
or other communication shall or may be given to or served upon either of the
parties by the other, and whenever either of the parties shall desire to give or
serve upon the other any notice, demand, request or other communication with
respect hereto or the Demised. Premises, each such notice, demand, request or
other communication shall be in writing and, any law or statute to the contrary
notwithstanding, shall not be effective for any purpose unless the same shall be
given or served as follows:
A. If given or served by Lessor, by mailing the same to Lessee by
registered mail or certified mail, postage prepaid, return receipt requested to:
XXXX XXXXXXX LIQUID AUDIO, INC 000 XXXXXXX XX. XXXXXXX XXXX, XX 00000 FAX: (650)
000-0000 such other address as Lessee may from time to time designate by notice
given to Lessor by registered mail or certified mail.
B. If given or served by Lessee, by mailing the same to Lessor by
registered mail or certified mail, postage prepaid, return receipt requested,
addressed to Lessor, New Retail Concepts Inc., 00 Xxxxxx Xxxxxx Xxxxxxxx,
Xxxxxxxxxxx. 00000, or at such other address as Lessor may from time to time
31
designate by notice given to Lessee by registered mail or certified mail.
27. DOCUMENTS. Lessor and Lessee shall execute all necessary
---------
afterdocuments required to carry out the terms of this Lease.
28. SUCCESSION. This agreement shall inure to the benefit of and be
----------
binding upon the respective parties hereto and their respective heirs,
successors and, except as otherwise provided in this Lease, assigns.
29. CHANGES AND WAIVER. This lease or any covenants, agreements, or
------------------
conditions contained herein cannot be terminated, altered, waived or modified in
any way on behalf of the Lessor except by an instrument in writing. Receipt of
rent shall not be deemed or construed to be a waiver of any other rent or
charges due or of the rights of the Lessor under a breach of any covenants or
conditions herein contained, nor shall any waiver be claimed as to any
provisions of this Lease unless the same be in writing. Acceptance of the keys
shall not be tantamount to or evidence of a surrender. The failure of Lessor to
seek redress for violation of, or to insist upon the strict performance of, any
covenant or condition of this Lease, or any of the rules and regulations set
forth or hereafter adopted by Lessor, shall not prevent a subsequent act, which
would have originally constituted a
32
violation, from having all the force and effect of an original violation.
30. ENTIRE AGREEMENT. This Lease contains the entire agreement between the
----------------
parties and shall not be modified in any manner except by an instrument in
writing executed by the parties. Any correspondence, communications or other
agreement or understanding with respect to this transaction occurring at or
prior to the execution and delivery hereof is superseded by this agreement and
shall be of no affect in interpreting this agreement. If any term or provision
of this Lease or the application thereof to any person or circumstance shall, to
any extent, be invalid or unenforceable, the remainder of this Lease, or the
application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby and each term and provision of this Lease shall be valid and be enforced
to the fullest extent permitted by law.
31. GOVERNING LAW. This lease shall be governed by, construed, and
-------------
enforced in accordance with the laws of the State of Connecticut. Lessor and
Lessee each hereby consent to the jurisdiction of the court for the State of
Connecticut for the purposes of any action between them arising out of this
Lease and
33
further consent to service of process in the manner provided for the giving of
notice provided for herein.
32. PARAGRAPH HEADINGS. The paragraph headings appearing in this Lease are
------------------
intended only for the convenience of reference, and are not to be considered in
construing this instrument.
33. RECORDING. Lessee shall not record this Lease without the written
---------
consent of Lessor. However, upon the request of either party hereto the other
party shall join in the execution of a memorandum or so-called "short form"
notice of this Lease for the purposes of recordation. Said memorandum or notice
of this Lease shall describe the parties, the Demised Premises and the term of
this Lease.
34. PARKING AREA. All parking areas located on the premises of the Center
------------
and designated by the Lessor for general use shall be used in common by the
Lessee, during the term hereof, or any renewal or extension hereof, with all
other tenants of the center and their employees and customers. Such use shall be
subject to the reasonable rules and regulations, if any, promulgated, from time
to time, by the Lessor. The Lessor reserves the right to change, alter or
relocate the parking area.
35. YIELD UP. At the expiration of the term hereof, or any renewal or
--------
extension hereof, or earlier termination of this Lease,
34
Lessee agrees to surrender all keys to the Demised Premises and the building; to
remove all of its personal property on the Demised Premises; and to yield up
said premises (including all installations and improvements made by Lessee
except for trade fixtures), broom-clean and in the same good order and repair in
which Lessee is obligated to keep and maintain said premises by the provisions
of this Lease, reasonable wear and tear and damage by fire or other casualty
excepted. Lessee will repair any and all damages caused by or resulting from any
such removals. Any property not so removed within thirty (30) days after such
expiration or termination date shall be deemed abandoned and may be removed and
disposed of by Lessor in such manner as Lessor shall determine and Lessee shall
pay Lessor the entire cost and expense incurred by it in effecting such removal
and disposition and in making any repairs and replacements to the said premises
resulting from such removal. Lessee shall further indemnify Lessor against all
loss, cost and damage resulting from Lessee's failure and delay in surrendering
said premises as above provided.
36. NO ACCORD AND SATISFACTION. No acceptance by the Lessor of a lesser
--------------------------
sum than the base rent, additional rent or any other charge(s) then due shall be
deemed to be other than on account of the earliest installment of such base
rent, additional rent or
35
charge(s) due, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment as base rent, additional rent or other
charge(s) be deemed an accord and satisfaction, and Lessor may accept such check
or payment without prejudice to Lessor's right to recover the balance of such
installment or pursue any other remedy provided in this Lease as at law or in
equity.
37. ESTOPPEL CERTIFICATE. Upon not less than ten (10) days prior request,
--------------------
the Lessee agrees, in favor of the Lessor, to execute, acknowledge and deliver a
statement in writing certifying that this Lease is unmodified and in full force
and effect (or, if there have been any modifications that the same are in full
force and effect as modified and stating the modifications), and the dates to
which the rent, additional rent and other charge(s) have been paid and any other
information reasonably requested.
38. LESSEE'S REPRESENTATIONS. A. Lessee is a corporation, duly organized,
------------------------
validly existing and in good standing under the laws of the State of California,
with full power and authority to conduct its business as provided herein and is
duly authorized to enter into this Lease and has taken all action required to
authorize the Lessee to enter into this Lease.
B. The individual executing the Lease on behalf of the Lessee
36
is duly authorized to execute and deliver the Lease on behalf of the Lessee.
C. Lessee shall furnish Lessor with duplicate original documents
evidencing the actions taken with respect to the above.
D. The business of the Lessee will be conducted at its own expense and in
such a manner as not to create any nuisance nor to interfere with, annoy, or
disturb other tenants or the Lessor in the management of the Center.
E. Lessee shall conduct its business in the Demised Premises in a
dignified manner condition
F. Lessee shall arrange for loading and unloading of goods to be done only
at such times, in such areas, and through such entrances as may be designated
for such purposes by the Lessor.
G. Lessee has examined the Demised Premises before taking possession and
Lessee's entry into possession is conclusive evidence that as of the date
thereof the Demised Premises were in good order and satisfactory condition and
that the Lessee was and
37
is fully satisfied with their physical condition; subject to
H. Lessee hereby represents to Lessor that Lessee has reviewed Exhibit B
and has received a copy of the floor plan of the Center, all of which relate to
the Demised Premises.
40. RULES AND REGULATIONS. Lessee and Lessee's servants, employees,
---------------------
agents, visitors, and licensees shall observe faithfully, and comply strictly
with such reasonable Rules and Regulations as Lessor or Lessor's agents may,
from time to time, promulgate, adopt, or amend, and which Lessor may deem
desirable
38
for the safety, care, cleanliness and use of the Demised Premises and/or the
Center, for the comfort and convenience of other tenants, and for the
preservation of good order therein, which rules, when so made and notice thereof
given to the Lessee, shall have the same force and effect as if originally made
a part of this Lease. Such other and further rules shall not, however, be
inconsistent with the proper and rightful enjoyment by the Lessee of the Demised
Premises.
41. NEGATIVE COVENANTS OF LESSEE. The Lessee covenants that it shall not
----------------------------
do any of the following without the prior written consent of the Lessor:
A. Use or operate any machinery that, in the Lessor's opinion is harmful
to the premises or disturbing to other tenants in the premises of which the
Demised Premises are a part, or use any loudspeakers, televisions, phonographs,
radios or other devices in a manner so as to be heard or seen outside of the
Demised Premises, or display merchandise on the exterior of the Demised Premises
either for sale or for promotional purposes.
B. Attach any awning, antenna, or other projection to the roof or the
outside walls of the Demised Premises or the building of which the Demised
Premises are a part.
C. Conduct any auction, fire, bankruptcy, selling out, or
39
going out of business sale on or about the Demised Premises.
D. Solicit business for itself, or permit its licensees or concessionaires
to solicit business in the parking or other common areas, nor shall any of them
distribute any handbills or other advertising matter in or on automobiles parked
in a parking area or in other common areas.
E. Store or permit boxes, paper, garbage, rubbish or debris to remain in
or around the Demised Premises or the Center except in areas and/or containers
specified by Lessor.
42. PERSONAL PROPERTY. The Lessee agrees that all of its personal
-----------------
property, inventory, fixtures, automobiles, and other property and improvements
kept in the Demised Premises or in the common property area will be kept there
at the sole risk of the Lessee or the owners thereof. Except for Lessor's gross
negligence or willful acts, the Lessee hereby waives any and all claims, of any
kind and nature, it may have against the Lessor for any injury, damage,
destruction, or otherwise to the aforesaid property in the Demised Premises.
Lessee acknowledges that Lessor has advised Lessee to insure the aforesaid
property against losses.
43. TRANSFER OF DEMISED PREMISES. If the Lessor or Lessor's successor or
----------------------------
assigns transfers ownership of the Demised Premises,
40
the Lessee agrees to look solely to the new owner for the performance of this
Lease from the date of such transfer. The Lessor agrees to give the Lessee
written notice of any transfer. No such transfer by Lessor shall terminate any
obligation or liability to Lessee which accrued prior to such transfer.
44. INTERPRETATIONS. This instrument is executed and designed to be
---------------
performed within the jurisdiction of the State of Connecticut and, therefore,
the laws of the State of Connecticut shall pertain to its interpretation and
enforcement. Each party hereto does hereby irrevocably confer jurisdiction upon
the Courts of the State of Connecticut and consent to be served with civil
process returnable to the said Courts notwithstanding the residence of any of
the parties hereto at the time of such service. The term "Courts of the State of
Connecticut" shall include any federal court exercising jurisdiction within the
State of Connecticut.
45. ARBITRATION. Except for claims or disputes arising out of or by virtue
-----------
of the claim by the Lessor of nonpayment of any rent, tax rent, CAM rent or
additional rental due and payable hereunder, the parties agree to resolve such
other disputes as may arise as between them out of or by virtue of the
provisions of this Lease by arbitration pursuant to the Rules of the American
41
Arbitration Association under an application for arbitration before that
Association, which arbitration shall be conducted within Fairfield County,
Connecticut. All disputes relating to nonpayment of rent, the amount of rent or
the collection of rent including actions for summary process are hereby
expressly reserved to the judicial process and may be recovered or pursued by
the Lessor pursuant to judicial process before the Courts of the State of
Connecticut. The interpretation of what shall be an issue relating to the
ascertainment of, or the collection of rent or nonpayment of rent, is hereby
expressly removed from the jurisdiction of any arbitrators and is expressly
conferred upon the judicial processes of the Courts of the State of Connecticut.
In the event of any arbitrable dispute, the arbitrators shall determine who
shall bear the costs of arbitration and/or attorney's fees in the course of such
proceeding and whether or not interest may be chargeable upon any amounts
awarded to the successful party in any such arbitration. The ascertainment of
the payment of interest, attorney's fees or costs of any judicial proceedings
permitted hereunder shall be made by the judicial process before which such
proceeding is returned and litigated.
46. COMMERCIAL TRANSACTION. THIS LEASE IS A "COMMERCIAL TRANSACTION" AS
----------------------
DEFINED IN SECTION 52-278a OF THE CONNECTICUT
42
GENERAL STATUTES ANNOTATED AS SUCH HAS BEEN ADOPTED OR MAY BE AMENDED FROM TIME
TO TIME. THE LESSEE EXPRESSLY WAIVES ALL RIGHTS TO ANY NOTICE OF AN APPLICATION
AND ANY APPLICATION FOR A PREJUDGMENT REMEDY IN THE NATURE OF ANY ATTACHMENT,
GARNISHMENT OR OTHERWISE, AND ANY HEARING THEREON, AND SPECIFICALLY AGREES THAT
THE ATTORNEY FOR THE LESSOR MAY ISSUE A WRIT FOR A PREJUDGMENT REMEDY AND THE
LESSOR SHALL HAVE THE RIGHT TO ATTACH THE PROPERTY OF THE LESSEE AND GARNISHEE
THE DEBTORS OF THE LESSEE WITHOUT SECURING A COURT ORDER THEREFOR IN ANY ACTION
OR ACTIONS BROUGHT BY THE LESSOR IN CONNECTION WITH THIS COMMERCIAL TRANSACTION.
IN WITNESS WHEREOF, we have hereunto set our hands and seals the day and
year first above written.
LESSOR:
________________________ By________________________
________________________
LESSEE:
________________________ By /s/ Signature Illegible
________________________
By_________________________
43
EXHIBIT A
---------
That certain tract or parcel of land, with the buildings and improvements
thereon, situated in the Town of Westport, County of Fairfield and State of
Connecticut and being shown and designated at Parcel B 0.4396 +/- acres, as
shown and designated on map entitled "Map of Property Prepared for Bridge Square
Property Associates Westport, Conn. Scale 1" = 20' April 28, 1986" which map is
on file in the Westport Town Clerk's Office and numbered 8396, to which map
reference is hereby made for a more particular description thereof.
Said Parcel B is bounded:
NORTHERLY: 146.60 feet by xxxxxxx Xxxxxx Xxxxxx so-called;
EASTERLY: 158 feet more or less by the waters of the Saugatuck River;
SOUTHERLY: 143.19 feet by land of the Town of Westport; and
WESTERLY: 107.03 feet by highway Riverside Avenue so-called.
All as shown on said map and all said boundaries being now or formerly.
44
EXHIBIT B
---------
BUILDING SKETCH
---------------
Bridge Square East
------------------
[FLOOR PLAN APPEARS HERE]
45
[FLOOR PLAN APPEARS HERE]
NEW RETAIL CONCEPTS, LTD. LEASE - LIQUID AUTVI
Section 2 - Rider
Lessor represents to Lessee that it has obtained all rights, permissions and
consents necessary to allow Lessor to enter into this Lease. Lessor further
acknowledges and agrees that if any provisions under this Lease are affected or
impaired due to Lessor's failure to secure such necessary rights, permissions or
consents that a) Lessor shall secure the necessary rights, permissions and
consents to enable Lessee uninterrupted use of the premises or b) Lessee shall
have the option to immediately terminate this Lease and Lessor shall immediately
refund in full to Lessee all deposits and lease payments made. Lessor shall
further indemnify Lessee for any expenses related to Lessor's breach of Section
2.
