4 For the first contract year of this agreement, it is agreed that the license fee shall be LICENSEE s estimate of the sum of (1) the applicable license fee for the use of live music and entertainment in accordance with Schedule A, and (11) the applicable license fee for the use of recorded music in accordance with Schedule B. (a) LICENSEE estimate of its anticipated live music and entertainment costs for the first contract year is 14.50000 and the estimated annual license fee for the use of live music and entertainment as determined from Schedule A........... (b) LICENSEE uses recorded music. LICENSEE warrants and represents that the room capacity of the licensed premises is . 60 and falls within Class A of Schedule 8 and the annual license fee as determined from Schedule B is. (c) If LICENSEE uses both live and recorded music, Subparagraphs 4(a) and 4(b) above should both be completed. The total of the amounts indicated therein shall be LICENSEE's estimated license lee, which is 028500 (d) The estimated fee for each contract year subsequent to the first contract year of the term hereof shall be the actual fee reported by LICENSEE for the previous contract year, pursuant to Paragraph 6 hereof 5. The license fee calculated pursuant to Paragraph 4 hereof is due and payable in full upon the signing of this agreement. T?W license fee for each subsequent contract year shall be due and payable within twenty (20) days of each anniversary date during the term of this agreement. At the option of LICENSEE, payment of the estimated fee may be made in quarterly installments, provided that said quarterly installments are made no later than twenty (20) days after the start of each quarterly period. It any quarterly payment is not timely received, the option herein granted to LICENSEE to make quarterly payments shall terminate, and the balance of the then-current year's estimate will immediately become due and payable. All subsequent estimates will then become due and payable annually within twenty (20) days of each anniversary date. 6. Within thirty (30) days after the expiration of each contract year, LICENSEE shall furnish BMI (on forms to be supplied by BMI) with a statement, certified either by an officer, owner, or by the auditor of LICENSEE, which shall include the following Information for such contract year. (a) if live music was performed, the total live music and entertainment costs for such contract year and (b) if recorded music was performed, the room capacity of the licensed premises and whether or not dancing was permitted.. (a) If the actual fee due BMI is less than the estimated fee already paid to BMI for such contract year, BMI agrees to credit the difference to the account of LICENSEE and, if such difference shall occur during the last year of the term hereof, BMI agrees to return same promptly. (b) If the actual fee due BMI is greater than the estimated lee already paid by LICENSEE to BMI for such contract year, LICENSEE shall pay BMI the difference between the actual and estimated license fee within thirty (30) days of LICENSEE's receipt of the adjusted statement of license fees sent by BML *** (c) In the event that LICENSEE's Class of recorded music use changes more than once in any contract year, there shall be only one adjustment in LICENSEE's recorded music fee made for such year and it shall be in an amount equal to the fee for a premises of that Class in which LICENSEE operated for the greatest part of the year in which said change(s) occurred. 7. BMI shall have the right to require such reasonable data or information relating to LICENSEE's annual expenditures for live music and entertainment and the recorded music policy at the premises, in addition to that furnished pursuant to Paragraph 6 hereol. as may be necessary in order to ascertain the annual license fee. BMI shall have the right, by its authorized representatives, at any time during customary business hours, to examine the books and records of account of LICENSEE to such extent as may be necessary to verify the statements made hereunder. BMI shall consider all data and information coming to its attention as a result of any such examination of books and records as confidential. 8 In the event that BMI is made aware of a change of Class or bracket of entertainment costs of the licensed premises and LICENSEE has failed to notify BMI of such change through the submission of the next statement required by Paragraph 6 hereof, BMI shall have the right to notify LICENSEE in writing by certified mail of its knowledge of such change and II LICENSEE does not contest such notice in writing by certified mail within thirty (30) days of the receipt thereof, such change shall be deemed accurate and an adjustment shall be made in accordance with Subparagraph 6 (a), (b) or (c) hereof. 9 in the event that LICENSEE discontinues the use of all live and recorded music at the premises during the term of this agreement and so notifies BMI in writing by certified mail, within sixty (60) days after receipt of such notice an adjustment shall be made by Bit for that partial calendar year, provided that, in the case of live music, LICENSEE has submitted a statement of entertainment costs incurred up to the date of discontinuance. In no event, however, shall any such adjusted live music license lee be less than the lowest license lee on Schedule A or any such adjusted recorded music license fee, which shall be a proration of the full year's license lee, be less than the applicable Class 1 license fee on Schedule 8 LICENSEE shall not be obligated to make future payments to BMI thereafter for the discontinued music (provided the balance of any previously due license lee has been paid) until such time as LICENSEE shan resume the use of such music at the premises, and LICENSEE agrees to send written notice of any resumption to BMI within thirty (30) days thereof. If LICENSEE discontinues the use of either live or recorded music, but not both, the provisions of this agreement shall continue to be applicable to that music which continues to be used at the premises. The term "discontinuance as used herein shall mean the total abandonment, rather than a seasonal or periodic cessation, of the use of music and entertainment 10. If, during the term hereof, LICENSEE shall cease to operate the premises, whether by reason of sale or lease thereof, or otherwise, this agreement and the obligation of LICENSEE to BMI shall thereupon terminate, provided, however, that LICENSEE shall, within ten (10) days thereafter, give written notice of such termination to BMI, setting forth the effective date thereol and the name of the new owner or operator of the premises, as the case may be, and that LICENSEE shall pay to BMI all fees due hereunder until said effective date. 11. In the event that BMI, at any time during the term hereof, shall, for the individual licensing of establishments of the same class and category as that of LICENSEE, issue licenses granting rights similar to those in this agreement on a more favorable basis. BMI •shall, for the balance of the term hereal, offer LICENSEE a comparable agreement. 12 BMI agrees to indemnify, save harmless and delend LICENSEE, its officers and employees, from and against any and all. claims, demands or suits that may be made or brought against them or any of them with respect to the performance of any matenal licensed under this agreement. Such indemnity shall be limited to works which are licensed by BMI at the time of LICENSEES performances. BMI's Clearance Department will, upon request, advise LICENSEE whether particular musical works are available for performance as part of BMI's repertoire. LICENSEE agrees to give BMI immediate notice of any such claim, demand or suit, to deliver to BMI any papers pertaining thereto and to cooperate with BMI with respect thereto, and BMI shall have full charge of the defense of any such claim, demand or suit 13. BMI reserves the right at its discretion to withdraw from the license granted hereunder any musical work as to which eny legal action has been instituted or a claim made that BMI does not have the night to license the performing nights in such work or that such work infringes a composition not in the BMI repertoire. 14. All disputes of any kind, nature or description arising in connection with the terms and conditions of this agreement shall be submitted to the American Arbitration Association in New York, New York for arbitration under its then prevailing rules, the arbitrator(a) to be selected as follows: Each of the parties hereto shall, by written notice to the other, have the right to appoint one arbitrator II, within ten (10) days following the giving of such notice by one party, the other shall not, by written notice, appoint another arbitrator, the first arbitrator shall be the sole arbitrator. If two arbitrators are so appointed, they shall appoint a third arbitrator. If ten (10) days elapse after the appointment of the second arbitrator and the two arbitrators are unable to agree upon the third arbitrator, then either party may, in writing, request the American Arbitration Association to appoint the third arbitrator. The award made in the arbitration shall be binding and conclusive on the parties and judgment may be, but need not be, entered in any court having jurisdiction Such award shall include the fixing of the costs, expenses and attorney's fees of arbitration, which shall be borne by the unsuccessful party 15. Upon any breach or default of the terms and conditions contained herein, BMI shall have the right to cancel this agreement il such breach or default continues thirty (30) days after LICENSEE's receipt of written notice thereof. The night to cancel granted to BMI shall be in addition to any and all other remedies which BMI may have. No waiver by BMI of full performance of this agreement by LICENSEE in any one or more instances shall be deemed a waiver of the right to require full and complete performance of this agreement thereafter or of the right to cancel this agreement in accordance with the terms of this Paragraph 16. This agreement constitutes the entire understanding between the parties and cannot be waived or added to or modified orally, and no waiver, addition or modification shall be valid unless in writing and signed by the parties. The rights of LICENSEE shall not be assignable. This agreement, its validity, construction and effect, shall be governed by the laws of the State of New York. The lact that any provisions herein are found by a court of competent jurisdiction to be void or unenforceable shall not affect the validity of enforceability of any other provisions. IN WITNESS WHEREOF, this agreement has been executed by the duly authorized representatives of BMI and LICENSEE all as of the date first above written. BMI MUSIC PERFORMANCE AGREEMENT Restaurants, Nightclubs, Bars, Cocktail Lounges, Taverns, Disco's, Date We Be MAR 1991 3021237 AGREEMENT, made at New York, NY. on my BAY UBor EUPEUMERY between BROADCAST MUSIC INC (hereinafter BMI), a State of New York corporation with its principal offices at 320 West 57th Street. New York NY 10019 and the entity described below and referred to thereafter as LICENSEE ENTER LEGAL NAME The Publick House. (a) Live music: music performed by musicians, singers or other entertainers actually present and performing at the licensed premises (b) Live music and entertainment costs: expenditures of every lund (whether money or any other consideration) made by or for LICENSEE for inve music. The services of LICENSEE and/or non-compensated musicians or entertainers shall be included in “entertainment costs at the prevailing rate for such services in the community. Also included in “entertainment costs" are expenditures for room and board where LICENSEE is obligated to provide them as part of the consideration for such entertainment services. (c) Recorded music: the performance of music by mechanical or electronic devices for background, foreground, or as part of audio-visual presentations, etc., which include, but are not limited to, records, tapes. CD's, broadcasts, satellite signals and/or cablecasts (0) Dancing: patrons. performers or employees dancing to recorded music anywhere on the licensed premises (e) Discontinuance: to permanently stop the use of all music, both live and recorded 2. BMI GRANT (a) BMI hereby grants to LICENSEE a non-exclusive license to perform publicly at the licensed premises all of the musical works the rights to grant public performance licenses of which BMI controls during the term. This license does not include. (1) dramatic rights the right to perform dramatico-musical works in whole or in substantial part, the right to present individual works in a dramatic setting or the right to use the music licensed hereunder in any other context which may constitute an exercise of the grand rights therein. or (w) the right to broadcast, lovecabl cablecast, or otherwise transmit the performances licensed hereunder to person outside of the premises. or (w) performances of music by means of a coin-operated phonorecord player (ukebox) as defined in the Copyright Law (17 USC §116) (b) BMI reserves the right at its discretion to withdraw from the license granted hereunder any musical work as to which any legal action has been instituted or a claim made that BMI does not have the right to license the performing rights in such work or that such work intringes another composition 3. TERM OF AGREEMENT CCT 3191 The initial term of this annual agreement shall begin on the first day and end on the last day of Dit will. and continue for additional periods of one (1) year each, unless cancelled by either party at the end of any period, upon 30 days advance writter not ce Each one (1) year period is a "contract year" 4. FEES (a) LICENSEE agrees to pay to BMI for each contract year an estimated fee as an advance of the actual fee. The estimated 'ee shall then be adjusted in accordance with Paragraph 5. The first estimated annual fee due shall be payable upon the signing of the agreement by LINENSEE. The resulting actual fee shall be determined as follows (1) LIVE MUSIC AND ENTERTAINMENT ONLY-LICENSEE shall pay the applicable fee as indicated. See page 4. License Fee Schedue. Categor, i 1 (1) RECORDED AND LIVE MUSIC-LICENSEE shall pay the applicable fee as indicated See page 4. License Fee Schedule Category 1 and C.Megory 2 (1) RECORDED MUSIC ONLY — LICENSEE shall pay the applicable lee as indicated. See page 4. Licerise Fee Schedule Category A (b) For each subsequent contract year the estimated license fee is due and payable no later than 20 days after each ariniverary date of this agreement. Beginning with the second contract year and at the option of LICENSEE upon written request payment of the Fun ated fee may be made in quarterly installments, provided that they are made no later than twenty (20) days after the start of each quarterly If any quarterly payment is not received on time, this option terminates, and the balance of the then current years estimate will immediately he and payable All subsequent estimates will then be due and payable annually. The estimated fee for each contract year after the first cont... year is the actual annual fee payable by LICENSEE for the previous contract year, pursuant to this p.vagraph S. REPORTING (4) After the first contract year at the same time that the estimated anal for is plant LICENSED Weltgrust HMoon HAMP formis) a report certified either by an officer, owner operator of by the auditor of LICENSEE acting, the Patentang antarmmation for is a decontract year if live music was performed the total live music and entertainment costs ir recorded music was performed the manmium tom occupancy of the licensed premises whether or not there is dancing at the premises and whether or not licensahe audio visual performances of recorded music were given. These reports will continue to be made during any period of discontinuance (b) if after processing the annual report the actual fee due BMI is less than the estimated lee a'ready paid for such contract year. BMI will credit the difference to the account of LICENSEE and, if such difference occurs during the list year of the term. BMI will return same promptly (c) If after procesung the annual report, the actual fee due HMI is greater than the estimated fer altead, paid for such contract year LICENSEE will pay the difference between the actual and estimated icense fee within thirty (to) days of receipt of HALs adiusted statemen: 6. DISCONTINUANCE OF MUSIC In the event wit LICENSEE discontinues the use of all music unit LICENSEE crabses to operate the premise during the term and so notifies BMI in weteg within thirty (30)) days after recept of such notice a pro rata napustement dan recorded muss, shut be made by BMI for thuit contract year. provided that LICENSE E submits a report as requed in P'aagaph 5 for all muss used up to the date of discontinuance, In no event shall any fee be was than the lowest applicable Category 1. Category 2 and Category A fee in trust contract year LICENSEE will not be obligated to make future payments to BMI for the discontinued music (provided all previoush, due license fees nine been paid) unless LICENSEE resumes the use of music. W LICENSEE drecontinues the use of either tive or recorded music, but not both, this agrement shall continue to be applicable to the music which continues to be used LICENSEE will send written notice of any resumption of music to BMI within thirty (30) days thereof and at the same time provide BMI with the information required in Paragraph 5 If discontinuance and resumption occur in the same contract year, license fees shall be payable as if discontinuance never occurred and LICENSEE 3 estimated les immediately prior to discontinuance shall be reinstated. 7. REVIEW OF STATEMENTS AND/OR ACCOUNTINGS BMI will have the night, by Rå authorized representatives, at any time during customary business hours, and upon thirty (30) days advance written notice, to examine those portions of LICENSEE'D books and records of account to such extent as may be necessary to verify any and all statements and/or accountings made hereunder or under any prior agreement with BMI BMI in its sole discretion, will determine whether an examination shall be made Bill shall consider all data and information coming to its attention as the result of any such examination of LICENSEE's books and records es confidential : 8. INDEMNITY BY BMI BMI agrees to indemnify, save harmless and defend LICENSEE its officers and empknees from and against any and all claims, demands or surts that may be made or brought against them or any of them with respect to the performance of am material licensed under this agreement. This indemnity shall be limited to works which are licensed by Bi at the time of LICENSEE performances BMI will upon reasonable written request. evee LICENSEE whether particular musical works are available for performance as part of BMIs repertowe LICENSEE shall provide the title and the writer/composer of each musical composition requested to be identified LICENSEE agrees to give BMI immediate notice of any such claim, demand or suit, to driver to BMW any papers pertaining thereto, and to cooperate with 84) with respect thereto, and BMI shall have full charge of the defense of any such clan, demand or out 9. CANCELLATION OF ENTIRE CATEGORY BMI shall have the right in cancel this agreement along with the sumumaneoin cancellation of the agreements of all other licensees of the same class and category as LICENSEE, as of the end of am neinth câưng this term aguses sexly (60) (20y% (1.0% e wetten notice 10. OFFER OF COMPARABLE AGREEMENT In the event that BM, at any time during the term hereof shall for the same class and category as that of LICENSEE, issue licenses granting rights Similar to those in this agreement on a more favorable basis. 84!! shall for the baiɑnce of the term offer LICENSEE a comparable agreement 11. BREACH OR DEFAULT/WAIVER Upon any breach or default of the terms and conditions of this agreement. BMI has the right to cancel this agreement, but any such cancellation shall only become effective if the breach or default continues thirty (30) days after the date of BMIs written notice to LICENSEE. The right to cancel is in addition to any and all other remedies which BMI may have. No waner by 8% of fuli performance of this agreement by LICENSEE in any one or mwe instances will be a waner of the right to require full and complete performance of this agreement thereafter or of the right to cancel this agreement • accordance with the terms of true Paragraph |