EXHIBIT 10.23
THE 1130 RAINIER BUILDING
STANDARD FORM OFFICE LEASE
BETWEEN
1130 RAINIER LLC, A WASHINGTON
LIMITED LIABILITY COMPANY
Landlord
and
LOUDEYE CORP., A DELAWARE CORPORATION AND LOUDEYE ENTERPRISE COMMUNICATIONS,
INC., A DELAWARE CORPORATION
Tenant
TABLE OF CONTENTS
1. Terms and Definitions....................................................... 4
2. Premises and Common Areas Leased............................................ 5
3. Term........................................................................ 5
4. Possession.................................................................. 5
5. Annual Basic Rent........................................................... 5
6. Rental Adjustment........................................................... 6
7. Security Deposit............................................................ 7
8. Use......................................................................... 7
9. Payment and Notices......................................................... 7
10. Brokers..................................................................... 7
11. Holding Over................................................................ 7
12. Taxes on Tenant's Property.................................................. 8
13. Condition of Premises....................................................... 8
14. Alterations................................................................. 8
15. Repairs..................................................................... 9
16. Liens....................................................................... 9
17. Entry by Landlord.......................................................... 9
18. Utilities and Services...................................................... 9
19. Bankruptcy.................................................................. 10
20. Indemnification............................................................. 10
21. Damage to Tenant's Property................................................. 10
22. Tenant's Insurance.......................................................... 10
23. Damage or Destruction....................................................... 11
24. Eminent Domain.............................................................. 12
25. Defaults and Remedies....................................................... 12
26. Assignment and Subletting................................................... 13
27. Subordination............................................................... 14
28. Estoppel Certificate........................................................ 14
29. Building Planning - Deleted................................................. 14
30. Rules and Regulations....................................................... 14
31. Governing Law............................................................... 14
32. Successors and Assigns...................................................... 14
33. Surrender of Premises....................................................... 14
34. Attorney's Fees............................................................. 14
35. Performance by Tenant....................................................... 15
36. Mortgage Protection......................................................... 15
37. Definition of Landlord...................................................... 15
38. Waiver...................................................................... 15
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39. Identification of Tenant.................................................... 15
40. Parking..................................................................... 15
41. Terms and Headings.......................................................... 15
42. Examination of Lease........................................................ 15
43. Time........................................................................ 15
44. Prior Agreement; Amendments................................................. 16
45. Separability................................................................ 16
46. Recording................................................................... 16
47. Limitation on Liability..................................................... 16
48. Riders...................................................................... 16
49. Modification for Lender..................................................... 16
50. Accord and Satisfaction..................................................... 16
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THE 1130 RAINIER BUILDING
STANDARD FORM OFFICE LEASE
This Lease is made as of the 20th day of December, 2003, by and between Landlord
and Tenant, hereinafter designated.
1. TERMS AND DEFINITIONS. For the purpose of this Lease, the following Terms
shall have the following definitions and meanings:
a. LANDLORD: 1130 Rainier LLC, a Washington Limited Liability Company
b. LANDLORD'S ADDRESS:
c/o Seavest Realty Inc.
0000 Xxxxxxxxx Xxx XX Xxxxx 000
P.O. Box 95430
Xxxxxxx, XX 00000-0000
c. TENANT: Loudeye Corp., a Delaware corporation and Loudeye Enterprise
Communications, Inc., a Delaware corporation
d. TENANT'S ADDRESS:
0000 Xxxxxxx Xxx Xx. Xxxxx_000
Xxxxxxx, XX 00000
e. PREMISES: Those certain premises outlined on the floor plan attached
hereto as Exhibit A and by this reference incorporated herein,
consisting of approximately 41,753 rentable square feet, being the
entire first and second floors of the Building, designated as Xxxxx
Xx. 000. The address of the Building is 1130 Rainier Ave. So., Xxxxxxx,
XX 00000. Provided however, only during the period January 1, 2003,
through March 31, 2004, the premises shall include the entire first
floor and only the east side of the second floor , totaling 31,572
square feet.
f. TERM: A period of 2 years and 0 months, beginning on the Commencement
Date and ending on December 31, 2005, if not sooner terminated by
Landlord in accordance with the provisions of Addendum A, attached
hereto and by this reference incorporated herein.
g. BUILDING STANDARD WORK: All the work to be done, or which has been
done, at Landlord's expense in the Premises pursuant to the provisions
of the Work Letter Agreement, described in Paragraph 2 below.
h. BUILDING NONSTANDARD WORK: All the work to be done, or which has been
done, in the Premises by Landlord pursuant to the provisions of the
Work Letter Agreement, other than Building Standard Work.
i. LEASEHOLD IMPROVEMENTS: The aggregate of the Building Standard Work and
the Building Nonstandard Work.
j. COMMENCEMENT DATE: The earlier of the following dates:
(i) January 1, 2004.
(ii)
(iii)
k. ANNUAL BASIC RENT: PER ADDENDUM A, ATTACHED HERETO AND INCORPORATED
HEREIN BY THIS REFERENCE.
l. DIRECT EXPENSES BASE: Year 2000
m. TENANT'S PERCENTAGE: 67.12%
n. SECURITY DEPOSIT:. $153,058, payable, along with the first month's
rent, no later than 10:00 a.m. on January 2, 2004.
o. PARKING: 31.5 numbered and reserved uncovered parking spaces, plus half
the guest and handicapped uncovered spaces available for $25.00 each
per parking stall per month during the term of this Lease.
p. BROKERS:
LANDLORD'S: Seavest Realty Inc.
TENANT'S: NONE
Landlord's Initials Tenant's Initials
__________________ __________________
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2. PREMISES AND COMMON AREAS LEASED.
a. Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord, the Premises contained within the suite designated in Subparagraph
1.e. The Premises are, or shall be, improved by Landlord with the Leasehold
improvements described in the Work Letter Agreement, a copy of which is attached
hereto and marked Exhibit "B" and Exhibit "B-1" and incorporated herein by this
reference. It is agreed for the purpose of this Lease, that the Premises have an
area of approximately the number of square feet designated in Subparagraph 1.e.,
situated on the floor(s) designated in Subparagraph 1.e., of that certain office
building located at the address designated in Subparagraph 1.e. (hereinafter
called the "Building"). The Premises exclude the common stairways, stairwells,
access ways and pipes, conduits, wires and appurtenant fixtures serving
exclusively or in common other parts of the Building.
The parties hereto agree that said letting and hiring is upon and
subject to the terms, covenants and conditions herein set forth and Tenant
covenants as a material part of the consideration for this Lease to keep and
perform each and all of said terms, covenants and conditions by it to be kept
and performed and that this Lease is made upon the condition of such
performance.
b. Tenant shall have the nonexclusive right to use, in common with
other tenants in the Building and subject to the Rules and Regulations referred
to in Paragraph 30 below, the following areas appurtenant to the Premises:
(i) The common entrances, lobbies, rest rooms, elevators, stairways
and access ways, loading docks, ramps, drives and platforms and any passageways
and service ways thereto, and the common pipes, conduits, wires and appurtenant
equipment serving the Premises, which Landlord shall exercise reasonable
diligence to timely maintain and repair;
(ii) Common walkways and sidewalks necessary for access to the
Building maintained by Landlord.
c. Upon reasonable advance notice to Tenant, Landlord reserves the
right from time to time without unreasonable interference with Tenant's use:
(i) To install, use, maintain, repair and replace pipes, ducts,
conduits, wires and appurtenant meters and equipment included in the Premises
which are located in the Premises or located elsewhere outside the Premises, and
to expand the Building.
(ii) To alter or relocate any other common facility.
3. TERM. The Term of this Lease shall be for the period designated in
Subparagraph 1.f., commencing on the Commencement Date and ending on the
expiration of such period, unless the Term hereby demised shall be sooner
terminated as hereinafter provided. Upon commencement of the Term, this Lease
shall be amended to set forth the actual date of commencement and expiration of
the Term.
4. POSSESSION. Tenant agrees that in the event of the inability of
Landlord to deliver possession of the Premises to Tenant on the date above
specified for the commencement of the Term of this Lease, this Lease shall not
be void or voidable, unless Landlord shall be unable to deliver possession of
the Premises to Tenant by July 1, 1999, nor shall Landlord be liable to Tenant
for any loss or damage resulting therefrom, (but the expiration date of the
above Term shall be extended by the number of days of such delay) but in such
event Tenant shall not be liable for any rent until such time as Landlord
tenders delivery of possession of the Premises to Tenant with Landlord's work
therein, if any, substantially completed. Should Landlord tender possession of
the Premises to Tenant prior to the date specified for commencement of the Term
hereof, and Tenant elects to accept such prior tender, such prior occupancy
shall be subject to all the terms, covenants and conditions of this Lease,
including the payment of rent.
5. ANNUAL BASIC RENT.
a. Tenant agrees to pay Landlord as Annual Basic Rent for the
Premises the Annual Basic Rent designated in Subparagraph l.k. (subject to
adjustment as hereinafter provided) in twelve (12) equal monthly installments,
each in advance on the first day of each and every calendar month during the
Term, except that the first month's Rent shall be paid upon execution hereof.
Landlord shall consider the payment of Annual Basic Rent to be in arrears if it
has not been received on or before the fifth (5th) day of each month. In the
event the Term of this Lease commences or ends on a day other than the first or
last day of a calendar month, then the Rent for such period shall be prorated in
the proportion that the number of days this Lease is in effect during such
periods bears to thirty (30), and such Rent shall be paid at the commencement of
such period. In addition to the Annual Basic Rent, Tenant agrees to pay the
amount of the Rental Adjustments as and when hereinafter provided in this Lease.
Said rental shall be paid to Landlord, without any prior demand therefor and
without any deduction or offset whatsoever in lawful money of the United States
of America, which shall be legal tender at the time of payment, at the address
of Landlord designated in Subparagraph 1.b. or to such other person or at such
other place as Landlord may from time to time designate in writing. Tenant
agrees to pay as Additional Rent to Landlord, upon demand, Tenant's percentage
of any parking charges, utility surcharges, or any other costs levied, assessed
or imposed by, or at the direction of, or resulting from statutes or
regulations, or interpretations hereof, promulgated by any federal, state,
regional, municipal or local governmental authority in connection with the use
or occupancy of the Building or the Premises or the parking facilities serving
the Building or the Premises. Further, all charges to be paid by Tenant
hereunder, including, without limitation, payments for real property taxes,
insurance and repairs, shall be considered Additional Rent for the purposes of
this Lease, and the word "Rent" in this Lease shall include such Additional Rent
unless the context specifically or clearly implies that only the Annual Basic
Rent is referenced.
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b. Deleted.
c. LATE CHARGES. In the event Tenant fails to pay any installment
of Rent when due, including any grace period, or in the event Tenant fails to
make any other payment to be made under this Lease when due, including any grace
period, then Tenant shall pay to Landlord a late charge equal to five percent
(5%) of the amount due to compensate Landlord for the extra cost incurred as a
result of such late payment.
6. RENTAL ADJUSTMENT.
a. For the purpose of this Subparagraph 6.a. the following Terms
are defined:
(i) LEASE YEAR: Each calendar year of the Term of this Lease.
(ii) TENANT'S PERCENTAGE: That portion of the building
occupied by Tenant divided by the total square footage of the Building available
for occupancy, which result is set forth as a percentage in Subparagraph 1.m.
(iii) DIRECT EXPENSE BASE: The amount of the annual Direct
Expenses which Landlord has included in the Annual Basic Rent and which amount
is set forth in Subparagraph 1.1.
(iv) DIRECT EXPENSES: The Term "Direct Expenses" shall
include:
(a) Property tax costs consisting of real and personal
property taxes and assessments upon the Building and the land upon which it is
located or assessments levied in lieu thereof imposed by any governmental
authority or agency, and non-progressive tax on or measured by gross rental
received from the rental of space in the Building; any parking charges,
utilities surcharges, or any other costs levied, assessed or imposed by, or at
the direction of, or resulting from statutes or regulations, interpretations
thereof, promulgated by any federal, state, regional, municipal or local
government authority in connection with the use or occupancy of the Premises or
the parking facilities serving the Premises; any tax on this transaction or any
document to which Tenant is a party creating or transferring an interest in the
Premises, and any expenses, including cost of attorneys or expert reasonably
incurred by Landlord in seeking reduction by the taxing authority of the
above-referenced taxes, less tax refunds obtained as a result of an application
for review thereof; but shall not include any net income, franchise, capital
stock, estate or inheritance taxes.
(b) Operating costs consisting of costs incurred by
Landlord in maintaining and operating the Building and the land upon which it is
located, exclusive of costs required by this Lease to be paid by Tenant such as
all its utilities or required to be capitalized for federal income tax purposes,
and including (without limiting the generality of the foregoing) the following:
cost of insurance, supplies, services of independent contractors, managers,
other suppliers, the fair rental value of the Building office, cost of
compensation (including employment taxes and fringe benefits) of all persons who
perform duties connected with the management, operation maintenance, and repair
of the Building, its equipment, parking facilities and the Common Areas,
including, without limitation, engineers, janitors, foremen, floor waxers,
window washers, watchmen and gardeners, but excluding persons performing
services not uniformly available to or performed for substantially all Building
tenants.
(c) Amortization of such reasonable capital improvements
as Landlord may have constructed: (1) for the purpose of reducing operating
costs and (2) to comply with governmental rules and regulations promulgated
after completion of the Building.
b. If Tenant's Percentage of the Direct Expenses paid or incurred
by Landlord for any Lease Year exceeds Tenant's percentage of the Direct Expense
Base, then Tenant shall pay such increase as additional rent. As soon as
possible each year Landlord shall give to Tenant an unaudited written statement
of the increase in rent payable by Tenant hereunder which shall be due and
payable upon receipt. In addition, for each year after the First Lease Year,
Tenant shall pay its percentage of Landlord's estimate of the amount by which
Direct Expenses for that year shall exceed the Direct Expense Base. This amount
shall be divided into twelve (12) equal monthly installments. Tenant shall pay
to Landlord concurrently with the regular monthly rent payments next due
following the receipt of such statement, an amount equal to one (1) monthly
installment multiplied by the number of months from January in the calendar year
in which said statement is submitted to the month of such payment, both months
inclusive. Subsequent installments shall be payable concurrently with the
regular monthly rent payments for the balance of that calendar year and shall
continue until the next calendar year's statement is rendered. If in any
calendar year Tenant's Percentage of actual Direct Expenses is less than the
estimate for that year, then upon receipt of Landlord's statement, any
overpayment made by Tenant on the monthly installment basis provided above shall
be credited towards the next monthly rent falling due and the estimated monthly
installments of Tenant's Percentage of Direct Expenses to be paid shall be
adjusted to reflect such lower Direct Expenses for the most recent Lease Year.
c. Even though the Term has expired and Tenant has vacated the
Premises, when the final determination is made of Tenant Percentage of Direct
Expenses for the year in which this Lease Terminates, Tenant shall immediately
pay any increase due over the estimated expenses paid and conversely any
overpayment made in the event said expenses decrease shall be immediately
rebated by Landlord to Tenant.
7. SECURITY DEPOSIT. Tenant has deposited with Landlord the Security Deposit
designated in Subparagraph 1.n. Said sum shall be held by Landlord as security
for the faithful performance by Tenant of all the terms, covenants, and
conditions of this Lease to be kept and performed by Tenant during the Term
hereof. If Tenant defaults with respect to any provision of this Lease,
including but not limited by the provisions relating to the payment of Rent,
Landlord may (but shall not be required to) use, apply or retain all or any part
of this Security Deposit for the payment of any Rent or any other sum in
default, or for the payment of any other such amount which Landlord may spend or
become obligated to spend by reason of Tenant's default or to compensate
Landlord for any loss or damage which Landlord may suffer by reason of Tenant's
default. If any portion of said deposit is so used or applied, Tenant shall,
within
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ten (10) days after demand therefor, deposit cash with Landlord in an amount
sufficient to restore the Security Deposit to its original amount. Tenant's
failure to do so shall be a material breach of this Lease. Landlord shall not be
required to keep the Security Deposit separate from its general funds, and
Tenant shall not be entitled to interest on such Security Deposit. Should
Landlord sell its interests in the Premises during the Term hereof and if
Landlord deposits with the purchaser thereof the then unappropriated funds
deposited by Tenant as aforesaid, thereupon Landlord shall be discharged from
any further liability with respect to the Security Deposit.
8. USE. Tenant shall use the Premises for general business office and internet
broadcast purposes and uses incidental thereto, and shall not use the Premises,
or permit or suffer the Premises to be used for any other purpose without the
written consent of Landlord, which consent will not be unreasonably withheld,
delayed, or conditioned. Tenant shall not use or occupy the Premises in
violation of law or of the certificate of occupancy issued for the Building, or
any master lease underlying the Premises which Tenant has been notified, and
shall, upon five (5) days written notice from Landlord, discontinue any use of
the Premises which is declared by any governmental authority having jurisdiction
to be in violation of law or of said certificate of occupancy or ground lease.
Tenant shall comply with any direction of any governmental authority having
jurisdiction which shall, by reason of the nature of Tenant's use or occupancy
of the Premises, impose any duty upon Tenant or Landlord with respect to the
Premises or with respect to the use or occupation thereof. Tenant shall not do
or permit to be done anything which will invalidate, restrict or increase the
cost of any fire, "All-Risk", extended coverage or other insurance policy
covering the Building and/or property located therein, and shall comply with all
rules, orders, regulations and requirements of the Insurance Service Offices,
formerly known as the Pacific Fire Rating Bureau, or any other organization
performing a similar function. Tenant shall, promptly, upon demand, reimburse
Landlord for any additional premium charged to Landlord for such policy by
reason of Tenant's failure to comply with the provisions of this Paragraph 8,
and upon such payment, shall not be in breach of the preceding sentence. Tenant
shall not do or permit anything to be done in or about the Premises which will
in any way obstruct or interfere with the rights of other tenants or occupants
of the Building, or injure or annoy them, or use or allow the Premises to be
used for any improper, immoral, unlawful or objectionable purpose, nor shall
Tenant cause, maintain or permit any nuisance in, on or about the Premises.
Tenant shall not commit or suffer to be committed any waste in, on or about the
Premises.
9. PAYMENT AND NOTICES. All Rent and other sums payable by Tenant to Landlord
hereunder shall be paid to Landlord at the address designated by Landlord in
Subparagraph l.b. or at such other places as Landlord may hereafter designate in
writing. Any notice required or permitted to be given hereunder must be in
writing and may be given by personal delivery or by mail, and if given by mail
shall be deemed sufficiently given if sent by registered or certified mail,
return receipt requested, postage prepaid, addressed to Tenant at the Building
of which the Premises are a part; or to Landlord at its address designated in
Subparagraph l.b. Either party may, by written notice to the other, specify a
different address for notice purposes except that Landlord may in any event use
the Premises as Tenant's address for notice purposes. If more than one tenant is
named under this Lease, service of any notice upon any one of said tenants shall
be deemed as service upon all said tenants.
10. BROKERS. The parties recognize that the brokers who negotiated this Lease
are the brokers whose names are stated in Subparagraph l.p., and agree that
Landlord shall be solely responsible for the payment of brokerage commissions to
said brokers, and that Tenant shall have no responsibility therefor. If Tenant
has dealt with any other person or real estate broker with respect to leasing or
renting space in the Building, Tenant shall be solely responsible for the
payment of any fee due said person or firm and Tenant shall hold Landlord free
and harmless against any liability in respect thereto, including attorney's fees
and costs.
11. HOLDING OVER. If Tenant holds over after the expiration or earlier
Termination of the Term hereof without the express written consent of Landlord,
Tenant shall become a Tenant at sufferance only, at a rental rate equal to one
hundred twenty-five percent (125%) of the Rent in effect upon the date of such
expiration, and otherwise subject to the terms, covenants and conditions herein
specified so far as applicable. Acceptance by Landlord of Rent after such
expiration or earlier termination shall not constitute a holdover hereunder or
result in a renewal or extension of this Lease. The foregoing provisions of this
Paragraph 11 are in addition to and do not affect Landlord's right of re-entry
or any rights of Landlord hereunder or as otherwise provided by law. If Tenant
fails to surrender the Premises upon the expiration of this Lease despite demand
to do so by Landlord, Tenant shall indemnify and hold Landlord harmless from all
loss or liability, including without limitation, any claim made by any
succeeding tenant founded on or resulting from such failure to surrender,
including attorney's fees and costs incurred by Landlord in evicting Tenant.
12. TAXES ON TENANT'S PROPERTY.
a. Tenant shall be liable for and shall pay at least ten (10) days
before delinquency, taxes levied against any personal property or trade fixtures
placed by Tenant in or about the Premises. If any such taxes on Tenant's
personal property or trade fixtures are levied against Landlord or Landlord's
property or if the assessed value of the Premises is increased by the inclusion
therein of a value placed upon such personal property or trade fixtures of
Tenant, then Landlord, after written notice to Tenant, shall have the right to
pay the taxes based upon such increased assessments, regardless of the validity
thereof, but only under proper protest if requested by Tenant in writing. If
Landlord shall do so, then Tenant shall, upon demand, repay to Landlord the
taxes levied against Landlord, or the proportion of such taxes resulting from
such increase in the assessment.
b. If the Leasehold Improvements in the Premises, whether installed
and/or paid for by Landlord or Tenant and whether or not affixed to the real
property so as to become a part thereof, are assessed for real property tax
purposes at a valuation higher than the valuation at which Leasehold
Improvements conforming to Landlord's "Building Standard" in other space in the
Building are assessed, then the real property taxes and assessments levied
against Landlord or the property by reason of such excess assessed valuation
shall be deemed to be real property taxes and assessments levied against
personal property of Tenant and shall be governed by the provisions of
Subparagraph 12.a. If the records of the County Assessors are available and
sufficiently detailed to serve as a basis for determining whether said Leasehold
improvements are assessed at a higher valuation than Landlord's "Building
Standard", such records shall be binding on both Landlord and Tenant. If the
records of the County Assessor are not
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available or sufficiently detailed to serve as a basis for making said
determination, the actual costs of construction shall be used.
13. CONDITION OF PREMISES. Tenant acknowledges that neither Landlord nor any
agent of Landlord has made any representation or warranty with respect to the
Premises or the Building or with respect to the suitability of either for the
conduct of Tenant's business. The taking of possession of the Premises by Tenant
shall conclusively establish that the Premises and the Building were at such
time in satisfactory condition except for leasehold improvements yet to be
completed, if any. Tenant accepts the premises "As Is".
14. ALTERATIONS.
a. Tenant shall make no alterations, decorations, additions or
improvements in or to the Premises without Landlord's prior written consent, and
then only by contractors or mechanics first approved by Landlord in writing.
Tenant agrees that there shall be no construction of partitions or other
obstructions which might interfere with Landlord's free access to mechanical
installations or service facilities of the Building or interfere with the moving
of Landlord's equipment to or from the enclosures containing said installations
or facilities. All such work shall be done at such times and in such manner as
Landlord may from time to time designate. Tenant covenants and agrees that all
work done by Tenant shall be performed in full compliance with all laws, rules,
orders, ordinances, directions, regulations and requirements of all governmental
agencies, offices, departments, bureaus and boards having jurisdiction. Before
commencing any work, Tenant shall give Landlord at least five (5) days written
notice of the proposed commencement of such work, and shall, if required by
Landlord, secure at Tenant's own cost and expense, a completion and lien
indemnity bond, satisfactory to Landlord, for said work. Tenant further
covenants and agrees that any mechanic's liens filed against the Premises or
against the Building for work claimed to have been done, or materials claimed to
have been furnished to Tenant, will be discharged by Tenant, by bond or
otherwise, within ten (10) days after the filing thereof, at the cost and
expense of Tenant. All alterations, decorations, additions or improvements upon
the Premises, made by either party, including (without limiting the generality
of the foregoing) all wall covering, built-in cabinet work, paneling and the
like, shall, unless Landlord elects otherwise, become the property of Landlord,
and shall remain upon, and be surrendered with the Premises, as a part thereof,
at the end of the Term hereof. However, Landlord may, by written notice to
Tenant, given at least thirty (30) days prior to the end of the Term, require
Tenant to remove all partitions, counters, railings, and the like, installed by
Tenant, and Tenant shall repair any damage to the Premises arising from such
removal or, at Landlord's option, shall pay to Landlord all of Landlord's costs
of such removal and repair. Such removal by Tenant of any such improvements
shall not interfere, in any way, with any other tenant's quiet enjoyment of the
Building.
b. All moveable articles of personal property and all moveable,
unattached business and trade fixtures, machinery and equipment, furniture and
partitions owned by Tenant or installed by Tenant at its expense in the Premises
shall be and remain the property of Tenant and may be removed by Tenant at any
time during the Term, provided Tenant is not in default hereunder, and provided
further that Tenant shall repair any damage caused by such removal. If Tenant
shall fail to remove all of its effects from the Premises upon termination of
this Lease for any cause whatsoever, Landlord may, at its option, remove the
same in any manner that Landlord shall choose, and store said effects without
liability to Tenant for loss thereof. Tenant agrees to pay Landlord upon demand
any and all expenses incurred in such removal, including court costs and
attorney's fees and storage charges on such effects for any length of time that
the same shall be in Landlord's possession. Landlord may, at its option and
without notice, sell said effects, or any of the same, at private sale and
without legal process, for such price as Landlord may obtain and apply the
proceeds of such sale upon (i) any amounts due under this Lease from Tenant to
Landlord and (ii) the expenses incident to the removal and sale of said effects.
c. Landlord reserves the right at any time and from time to time
without the same constituting an actual or constructive eviction and without
insuring any liability to Tenant therefor or otherwise affecting Tenant's
obligations under this Lease, to make such reasonable changes, alterations,
additions, improvements, repairs or replacements in or to the Building
(including the Premises, if required so to do by any law or regulation) and the
fixtures and equipment thereof, as well as in or to the street entrances, halls,
passages and stairways thereof, and to change the name by which the Building is
commonly known, as Landlord may deem necessary or desirable. Nothing contained
in this Subparagraph 14.c. shall be deemed to relieve Tenant of any duty,
obligation or liability of Tenant with respect to making any repair, replacement
or improvement or complying with any law, order or requirement of any government
or other authority. Nothing contained in this Subparagraph 14.c. shall be deemed
or construed to impose upon Landlord any obligation, responsibility or liability
whatsoever, for the care, supervision or repair of the Building or any part
other than as expressly provided in this Lease.
15. REPAIRS.
a. By entry hereunder, Tenant accepts the Premises as being in good and
sanitary order, condition and repair. Tenant shall keep, maintain and preserve
the Premises in first class condition and repair, and shall, when and if needed
or whenever requested by Landlord to do so, at Tenant's sole cost and expense,
make all repairs to the Premises and every part thereof, including all interior
windows and doors. Tenant shall, upon the expiration or sooner termination of
the Term hereof, surrender the Premises to Landlord in the same condition as
when received, except for normal wear and tear or any alterations that have been
approved by Landlord as designated in advance in writing at the time of
Landlord's approval. Landlord shall have no obligation to alter, remodel,
improve, repair, decorate or paint the Premises or any part thereof except as
specifically provided in Exhibits "B" and "B-1". The parties hereto affirm that
Landlord has made no representations to Tenant respecting the condition of the
Premises or the Building except as specifically set forth.
b. Anything contained in Subparagraph 15.a. above to the contrary
notwithstanding, Landlord shall repair and maintain the structural portions of
the Building, the foundation, the structural roof lid ( including its water
tightness), the basic plumbing, heating, ventilating, air conditioning, and
electrical systems furnished or installed by Landlord unless such maintenance
and repair is caused in whole or in part by the negligent act, neglect, fault of
or the omission of any duty by Tenant, its agents, servants, employees, guests,
invitees, officers or directors, in which
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case Tenant shall pay to Landlord as additional rent the reasonable cost of such
maintenance or repair. The reasonable cost of all such repair and maintenance
shall be included in the expenses passed through to Tenant by Landlord as
Additional rent. Landlord shall not be liable for any failure to make any such
repairs or to perform any maintenance unless such failure shall persist for an
unreasonable time not to exceed twenty one (21) days, unless said repair or
maintenance cannot be reasonably completed within said twenty one day period, in
which case Landlord shall diligently make such repair, in no event later than
ninety (90) days from the effective date of Tenant's notice to Landlord.
16. LIENS. Tenant shall not permit any mechanic's, material men's or other liens
to be filed against the real property of which the Premises form a part nor
against Tenant's leasehold interest in the Premises. If any such liens are
filed, Landlord may, without waiving its rights and remedies based on such
breach of Tenant, and without releasing Tenant from any of its obligations,
cause such liens to be released by any means it shall deem proper, including
payments in satisfaction of the claim giving rise to such lien. Tenant shall pay
to Landlord at once, upon notice by Landlord, any sum paid by Landlord to remove
such liens, together with interest at the maximum rate per annum permitted by
law from the date of such payment by Landlord.
17. ENTRY BY LANDLORD. Landlord reserves and shall at any and all times, upon
reasonable advance notice to Tenant, have the right to enter the Premises to
inspect the same, to supply janitor service and any other service to be provided
by Landlord to Tenant hereunder, to submit said Premises to prospective
purchasers or tenants (as to whom four (4) hours advance notice shall be deemed
reasonable), improve or repair the Premises or any other portion of the
Building, all without being deemed guilty of any eviction of Tenant and without
abatement of Rent, and may, in order to carry out such purposes, erect
scaffolding and other necessary structures where reasonably required by the
character of the work to be performed, provided that the business of Tenant
shall be interfered with as little as is reasonably practicable. For each of the
aforesaid purposes, Landlord shall at all times, have and retain a key with
which to unlock all of the doors in, upon and about the Premises, excluding
Tenant's vaults and safes. Landlord shall have the right to use any and all
means which Landlord may deem proper to open said doors in an emergency in order
to obtain entry to the Premises, and any entry to the Premises obtained by
Landlord by any of said means, or otherwise, shall not under any circumstances
be construed or deemed to be a forcible or unlawful entry into, or a detainer
of, the Premises, or an eviction of Tenant from the Premises or any portion
thereof, and any damages caused on account thereof shall be paid by Tenant. It
is understood and agreed that no provision of this Lease shall be construed as
obligating Landlord to perform any repairs, alterations or decorations except as
otherwise expressly agreed herein to be performed by Landlord.
18. UTILITIES AND SERVICES. Provided that Tenant is not in default of this
Lease, Landlord agrees to furnish or cause to be furnished to the Premises the
utilities and services described in the Standards for Utilities and Services,
attached hereto as Exhibit "D", subject to the conditions and in accordance with
the standards set forth therein. Landlord shall not be liable for, Tenant shall
not be entitled to any abatement or reduction of rent by reason of, and no
eviction of Tenant shall result from, and Tenant shall not be relieved from the
performance of any covenant or agreement in this Lease because of, Landlord's
failure to furnish any of the foregoing when such failure is caused by accident,
breakage, repairs, strikes, lockouts or other labor disturbances or labor
dispute of any character, governmental regulation, moratorium or other cause
beyond Landlord's reasonable control. In the event of any failure, stoppage or
interruption thereof, Landlord shall diligently attempt to promptly resume
service. Tenant shall pay for the entire cost of the utilities furnished to it
to be billed to Tenant by Landlord as additional rent. If any such utilities are
not separately metered, Lessor shall pro rate the same on an equitable basis.
19. BANKRUPTCY. If Tenant shall file a petition of bankruptcy under any Chapter
of the Bankruptcy Act as then in effect, or if Tenant shall be adjudicated a
bankrupt in involuntary bankruptcy proceedings and such adjudication shall not
have been vacated within thirty (30) days from the date thereof, or if a
receiver or trustee shall be appointed of Tenant's property, and the order
appointing such receiver or trustee shall not be set aside or vacated within
thirty (30) days after the entry thereof, or if Tenant shall assign Tenant's
estate or effects for the benefit of creditors, or if this Lease shall by
operation of law or otherwise devolve or pass to any person or persons other
than Tenant, then in any such event Landlord may, if Landlord so elects, with or
without notice of such election and with or without entry or action by Landlord,
forthwith terminate this Lease. In such case, notwithstanding any other
provisions of this Lease, Landlord, in addition to any and all rights and
remedies allowed by law or equity, shall, upon such termination, be entitled to
recover damages in the amount provided in Subparagraph 25.b. Neither Tenant nor
any person claiming through or under Tenant or by virtue of any statute or order
of any court shall be entitled to possession of the Premises, but shall
forthwith quit and surrender the Premises to Landlord. Nothing herein contained
shall limit or prejudice the right of Landlord to prove and obtain as damages by
reason of any such termination an amount equal to the maximum allowed by any
statute or rule of law in effect at the time when, and governing the proceedings
in which, such damages are to be proved, whether or not such amount be greater,
equal to, or less than the amount of damages recoverable under the provisions of
this Paragraph 19.
20. MUTUAL INDEMNIFICATION. Tenant, (or Landlord, as the case may be) shall
indemnify, defend and hold harmless Landlord (or Tenant) against and from any
and all claims arising from Tenant's (or Landlord's) use of the Premises or the
conduct of its business or from any activity, work, or thing done, permitted or
suffered by Tenant (or Landlord) in or about the Premises. Tenant (or Landlord)
shall further indemnify, defend and hold harmless Landlord (or Tenant) against
and from any and all claims arising from any breach or default in the
performance or any obligation on Tenant's (or Landlord's) part to be performed
under the Terms of this Lease, or arising from any act, neglect, fault or
omission of Tenant (or Landlord ) or of its agents or employees, and from and
against all costs, attorney's fees, expenses and liabilities incurred in or
about such claim or any action or proceeding brought thereon. In case any action
or proceeding shall be brought against Landlord (or Tenant) by reason of any
such claim, Tenant, (or Landlord) upon notice from Landlord, (or Tenant) shall
defend the same at Tenant's (or Landlord) expense by counsel approved in writing
by Landlord (or Tenant). Tenant, as a material part of the consideration to
Landlord, hereby assumes all risk of damage to property or injury to person in,
upon or about the Premises from any cause whatsoever, except that which is
caused by the failure of Landlord to observe any of the terms and conditions of
this Lease where such failure has persisted for an unreasonable period of time
after written notice of such failure.
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21. DAMAGE TO TENANT'S PROPERTY. Notwithstanding the provisions of Paragraph 20
to the contrary, Landlord or its agents shall not be liable for any damage to
property entrusted to employees of the Building, not for loss or damage to any
property by theft or otherwise, not for any injury or damage to persons or
property resulting from fire, explosion, falling plaster, steam, gas,
electricity, water or rain which may leak from any part of the Building or from
the pipes, appliances or plumbing work therein or from the roof, street or
sub-surface or from any other place or resulting from dampness or any other
cause whatsoever except to the extent that such damage or loss is attributable
to the breech of any of Landlord's obligations hereunder. Landlord or its agents
shall not be liable for interference with light or other incorporeal
heraditaments, nor shall Landlord be liable for any latent defect in the
Premises or in the Building. Tenant shall give prompt notice to Landlord in case
of fire or accidents in the Premises or in the Building or of defects therein or
in the fixtures or equipment.
22. TENANT'S INSURANCE.
a. Tenant shall, during the Term hereof and any other period of
occupancy, at its sole cost and expense, obtain, maintain and keep in full force
and effect the following insurance:
(i) Standard Form Property Insurance insuring against the perils of
fire, extended coverage, vandalism, malicious mischief, special extended
coverage ("All-Risk") and sprinkler leakage. This insurance policy shall be upon
property of every description and kind owned by Tenant, for which Tenant is
legally liable or that was installed at Tenant's expense, and which is located
in the Building, including without limitation, furniture, fittings,
installations, fixture (other than Building Standard Work), and any other
personal property, in an amount not less than ninety percent (90%) of the full
replacement cost thereof. In the event that there shall be a dispute as to the
amount which comprises full replacement cost, the parties shall submit their
dispute to binding arbitration for resolution. This insurance policy shall also
be upon direct or indirect loss of Tenant's earnings attributable to Tenant's
inability to use fully or obtain access to the Premises or Building in an amount
as will properly reimburse Tenant. Such policy shall name Landlord and any
mortgagees of Landlord as Additional Insured as their respective interests may
appear.
(ii) Comprehensive General Liability Insurance insuring Tenant
against any liability arising out of the lease, use, occupancy or maintenance of
the Premises and all areas appurtenant thereto. Such insurance shall be in the
amount of $3,000,000 Combined Single Limit for injury to, or death of one or
more persons in an occurrence, and for damage to tangible property (including
loss of use) in an occurrence. The policy shall insure the hazards of premises
and operations, independent contractors, contractual liability (covering the
indemnity contained in Paragraph 20 hereof) and shall (a) name Landlord as an
Additional Insured, (b) contain a Cross Liability provision, and (c) contain a
provision that "the insurance provided the Landlord hereunder shall be primary
and non-contributing with any other insurance available to the Landlord".
(iii) Workmen's Compensation and Employer's Liability Insurance (as
required by state law).
(iv) Any other form or forms of insurance as Tenant or Landlord or
any mortgagees of Landlord may reasonably require from time to time in form, in
amounts and for insurance risks against which a prudent tenant would protect
itself.
b. All policies shall be written in a form satisfactory to Landlord and
shall be taken out with insurance companies holding a General Policyholders
Rating of "A" and a Financial Rating of "X" or better, as set forth in the most
current issue of Bests Insurance Guide. Tenant shall deliver to Landlord
Certificates of Insurance satisfactory to Landlord. No such policy shall be
cancelable or reducible in coverage except after thirty (30) days prior written
notice to Landlord. Tenant shall, within ten (10) days prior to the expiration
of such policies, furnish Landlord with renewals or "binders" thereof, or
Landlord may order such insurance and charge the cost thereof to Tenant as
Additional Rent. If Landlord obtains any insurance that is the responsibility of
Tenant under this Xxxxxxxxx 00, Xxxxxxxx shall deliver to Tenant a written
statement setting forth the amount of any such insurance cost increase and
showing in reasonable detail the manner in which it has been computed.
23. DAMAGE OR DESTRUCTION.
a. In the event the Building and/or Building Standard Work are damaged
by fire or other perils covered by Landlord's extended coverage insurance
Landlord shall:
(i) In the event of total destruction, at Landlord's option, within a
period of ninety (90) days thereafter, commence repair, reconstruction and
restoration of the Building and/or Building Standard Work and prosecute the same
diligently to completion, in which event this Lease shall remain in full force
and effect; or within said ninety (90) day period elect not to so repair,
reconstruct or restore the Building and/or Building Standard Work in which event
this Lease shall terminate. In the event Landlord elects not to restore the
Building and/or Building Standard Improvements, this Lease shall be deemed to
have terminated as of the date of such total destruction.
(ii) In the event of a partial destruction of the Building and/or
Building Standard Improvements, to an extent not exceeding twenty-five percent
(25%) of the full insurable value thereof and if the damage thereto is such that
the building and/or the Building Standard Improvements may be repaired,
reconstructed or restored within a period of ninety (90) days from the date of
the happening of such casualty and Landlord will receive insurance proceeds
sufficient to cover the cost of such repairs, Landlord shall commence and
proceed diligently with the work of repair, reconstruction and restoration and
this Lease shall continue in full force and effect. If such work or repair
reconstruction and restoration is such as to require a period longer than ninety
(90) days or exceeds twenty-five percent (25%) of the full insurable value
thereof, or if said insurance proceeds will not be sufficient to cover the cost
of such repairs, Landlord either may elect to so repair, reconstruct or restore
and this Lease shall continue in full force and effect or Landlord may elect not
to repair, reconstruct or restore and this Lease shall in such event terminate.
Under any of the conditions of this Subparagraph 23. a. (ii), Landlord shall
give written notice to Tenant of its intention within said ninety (90) day
period. In the event Landlord elects not to restore said Building and/or
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Building Standard Improvements, this Lease shall be deemed to have terminated as
of the date of such partial destruction.
b. Upon any termination of this Lease under any of the provisions of
this Paragraph 23, the parties shall be released thereby without further
obligation to the other from the date possession of the Premises is surrendered
to Landlord except for items which have therefor accrued and are then unpaid.
c. In the event of repair, reconstruction and restoration by Landlord
as herein provided, the Rent provided to be paid under this Lease shall be
abated proportionately with the degree to which Tenant's use of the premises is
impaired during the period of such repair, reconstruction or restoration. Tenant
shall not be entitled to any compensation or damages for loss in the use of the
whole or any part of the Premises and/or any inconvenience or annoyance
occasioned by such damage, repair, reconstruction or restoration.
d. Tenant shall not be released from any of its obligations under this
Lease, except to the extent and upon the conditions expressly stated in this
Paragraph 23. Notwithstanding anything to the contrary contained in this
Paragraph 23, should Landlord be delayed or prevented from repairing or
restoring the damaged Premises within one (1) year after the occurrence of such
damage or destruction by reason of acts of God, war, governmental restrictions,
inability to procure the necessary labor or materials, or other cause beyond the
control of Landlord, Landlord shall be relieved of its obligation to make such
repairs or restoration and Tenant shall be released from its obligations under
this Lease as of the end of said one (1) year period.
e. In the event that damage is due to any cause other than fire or
other peril covered by extended coverage insurance, Landlord may elect to
terminate this Lease.
f. It is hereby understood that if Landlord is obligated to or elects
to repair or restore as herein provided, Landlord shall be obligated to make
repair or restoration only to those portions of the Building and the Premises
which were originally provided at Landlord's expense, and the repair and
restoration of items not provided at Landlord's expense shall be the obligation
of Tenant.
g. Notwithstanding anything to the contrary contained in Xxxxxxxxx 00,
Xxxxxxxx shall not have any obligation whatsoever to repair, reconstruct or
restore the Premises when the damage resulting from any casualty covered under
this Paragraph 23 occurs during the last twelve (12) months of the Term of this
Lease. In the event Landlord exercises its rights hereunder, the lease shall
terminate effective as of the date of the casualty.
24. EMINENT DOMAIN. In the case the whole of the Premises, or such part thereof
as shall substantially interfere with Tenant's use and occupancy thereof, shall
be taken for any public or quasi-public purpose by any lawful power or authority
by exercise of the right of appropriation, condemnation or eminent domain, or
sold to prevent such taking, either party shall have the right to terminate this
Lease effective as of the date possession is required to be surrendered to said
authority. Tenant shall not assert any claim against Landlord or the taking
authority for any compensation because of such taking, and Landlord shall be
entitled to receive the entire amount of the award without deduction for any
estate or interest of Tenant, and Landlord, at its option, may terminate this
Lease. If Landlord does not so elect, Landlord shall promptly proceed to restore
the premises to substantially the same condition prior to such partial taking,
and a proportionate allowance shall be made to Tenant of the Rent corresponding
to the time during which, and to the part of the Premises of which, Tenant shall
be so deprived on account of such taking and restoration. Nothing contained in
this Paragraph 24 shall be deemed to give Landlord any interest in any award
made to Tenant for the taking of personal property and fixtures belonging to
Tenant.
25. DEFAULTS AND REMEDIES.
a. The occurrence of any one or more of the following events shall
constitute a default hereunder by Tenant:
(i) The vacation or abandonment of the premises by Tenant.
Abandonment is herein defined to include, but is not limited to, any absence
from the Premises for five (5) business days or longer while in default of any
provision of this Lease.
(ii) The failure by Tenant to make any payment of Rent or Additional
Rent or any other payment required to be made by Tenant hereunder, as and when
due, where such failure shall continue for a period of three (3) days after
written notice thereof from Landlord to Tenant.
(iii) The failure by Tenant to observe or perform any of the express
or implied covenants or provisions of this Lease to be observed or performed by
Tenant, other than as specified in Subparagraph 25.a.(i) or (ii) above where
such failure shall continue for a period of ten (10) days after written notice
thereof from Landlord to Tenant; provided, however, that if the nature of
Tenant's default is such that more than ten (10) days are reasonably required
for its cure, then Tenant shall not be deemed to be in default if Tenant shall
commence such cure within said ten (10) day period and thereafter diligently
prosecute such cure to completion, which completion shall occur not later than
ninety (90) days from the date of such notice from Landlord.
(iv) The making by Tenant of any general assignment for the benefit
of creditors.
(v) The filing by or against Tenant of a petition to have Tenant
adjudged as bankrupt or a petition for reorganization or arrangement under any
law relating to bankruptcy (unless, in the case of a petition filed against
Tenant, the same is dismissed within sixty (60) days).
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(vi) The appointment of a trustee or receiver to take possession of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where possession is not restored to Tenant within thirty
(30) days.
(vii) The attachment, execution or other judicial seizure of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease where such seizure is not discharged within thirty (30)
days.
b. In the event of any such default by Tenant, in addition to any other
remedies available to Landlord at law or in equity, Landlord shall have the
immediate option to terminate this Lease and all rights of Tenant hereunder. In
the event that Landlord shall elect to do so terminate this lease then Landlord
may recover from Tenant:
(i) the worth at the time of award of any unpaid Rent which had
been earned at the time of such termination; plus
(ii) the worth at the time of award of the amount by which the
unpaid Rent which would have been earned after termination until the time of
award exceeds the amount of such Rent loss that Tenant proves could have been
reasonably avoided; plus
(iii) the worth at the time of award of the amount by which the
unpaid Rent for the balance of the Term after the time of award exceeds the
amount of such Rent loss that Tenant proves could be reasonably avoided; plus
(iv) any other amount necessary to compensate Landlord for all the
detriment proximately caused by Tenant's failure to perform its obligations
under this Lease or which in the ordinary course of things would be likely to
result therefrom.
As used in Subparagraphs 25.b(i) and (ii), the "worth at the time of
award" is computed by allowing interest at the lesser of eighteen per cent (18%)
per annum, compounded monthly, or the maximum rate permitted by law per annum.
As used in subparagraph 25.b(iii), the "worth at the time of award" is computed
by discounting such amount at the discount rate of the Federal Reserve Bank of
San Francisco at the time of award plus one percent (1%).
c. In the event of any such default by Tenant, Landlord shall also have
the right, with or without terminating this Lease, to re-enter the Premises and
remove all persons and property from the Premises; such property may be removed
and stored in a public warehouse or elsewhere at the cost of and for the account
of Tenant. No re-entry or taking possession of the Premises by Landlord pursuant
to this Subparagraph 25.c. shall be construed as an election to terminate this
Lease unless a written notice of such intention is given to Tenant or unless the
termination thereof is decreed by a court or competent jurisdiction.
d. All rights, options and remedies of Landlord contained in this Lease
shall be construed and held to be cumulative, and no one of them shall be
exclusive of the other, and Landlord shall have the right to pursue any one or
all of such remedies or any other remedy or relief which may be provided by law,
whether or not stated in this Lease. No waiver of any default of Tenant
hereunder shall be implied from any acceptance by Landlord of any Rent or other
payment due hereunder or any omission by Landlord to take any action on account
of such default if such default persists or is repeated, and no express waiver
shall affect defaults other than as specified in said waiver. The consent or
approval of Landlord to or of any act by Tenant requiring Landlord's consent or
approval shall not be deemed to waive or render unnecessary Landlord's consent
or approval to or of any subsequent similar acts by Tenant.
26. ASSIGNMENT AND SUBLETTING.
a. Tenant shall not, either voluntarily or by operation of law, assign,
sublease, sell, hypothecate or transfer this Lease, or sublet the Premises or
any part thereof, or permit or suffer the Premises or any part thereof to be
used or occupied as work space, storage space, mail drop, concession or
otherwise, by anyone other than Tenant or Tenant's employees without the prior
written consent of Landlord in each instance, which consent will not be
unreasonably withheld, delayed, or conditioned. Any merger, acquisition, lease,
sale, or other conveyance, whether voluntary or involuntary, of : (1) thirty
seven and one half percent (37.5%) or more of Tenant's voting stock; or (2)
thirty seven and one half percent (37.5%) or more of Tenant's assets shall be
deemed to be an event of assignment of this Lease requiring Landlord's prior
written consent. For purposes of the preceding sentence, the term "Tenant" shall
include, without limitation, all subsidiary corporations and all other entities
owned or controlled by Tenant.
In the event Tenant desires to assign, hypothecate or otherwise transfer this
Lease or sublet the Premises, then at least thirty (30) days prior to the date
when Tenant desires the assignment to sublease to be effective (the "Assignment
Date"), Tenant shall give Landlord a notice (the "Assignment Notice"), which
shall set forth the name, address and business of the proposed assignee or
sublessee, information (including references) concerning the character,
ownership, and financial condition of the proposed assignee or sublessee, the
Assignment Date, any ownership or commercial relationship between Tenant and the
proposed assignee or sublessee, and the consideration and all other material
terms and conditions of the proposed assignment or sublease, all in such detail
as Landlord shall reasonably require. If Landlord requests additional detail,
the Assignment Notice shall not be deemed to have been received until Landlord
receives such additional detail, and Landlord may withhold consent to any
assignment or sublease until such information is provided to it.
Any sale, assignment, sublease, hypothecation or transfer of this Lease or
subletting of the Premises that is not in compliance with the provisions of this
Subparagraph 26.a. shall be void and shall, at the option of Landlord, terminate
this Lease. The consent by Landlord to any assignment or subletting shall not be
construed as relieving Tenant or any assignee of this Lease or sublessee of the
Premises from obtaining the express written consent of Landlord to any further
assignment of subletting or as releasing Tenant or any assignee or sublessee of
Tenant from any liability or obligation hereunder whether or not then accrued.
In the event Landlord shall consent to an assignment or sublease, Tenant shall
pay Landlord as Additional Rent a reasonable attorneys' and administrative fee
12
not to exceed $750.00 for costs incurred in connection with evaluating the
Assignment Notice. This Subparagraph 26.a. shall be fully applicable to all
further sales, hypothecations, transfers, assignments and subleases of any
portion of the Premises by any successor or assignee of Tenant, or any sublessee
of the Premises.
b. Landlord shall not unreasonably withhold consent to any assignment,
sublease, sale, hypothecation or transfer of this Lease. As used in this
Paragraph 26, the subletting of substantially all of the Premises for
substantially all of the remaining Term of this Lease shall be deemed an
assignment rather than a sublease. Notwithstanding the foregoing, Landlord shall
consent to the assignment, sublease, sale or transfer if the Assignment Notice
states that Tenant desires to assign(or sublease) this Lease to any entity into
which Tenant is merged, with which Tenant is consolidated or which acquires all
of substantially all of the assets of Tenant, provided that the assignee first
executes, acknowledges and delivers to Landlord an agreement whereby the
assignee agrees to be bound by all of the covenants and agreements in this Lease
which Tenant has agreed to keep, observe or perform, that the assignee agrees
that the provisions of this Paragraph 26 shall be binding upon it as if it were
the original Tenant hereunder and that the assignee shall have both a liquid and
non liquid net worth (determined in accordance with generally accepted
accounting principles consistently applied) immediately after such assignment
which is at least equal to the liquid and non liquid net worth (as so
determined) of Tenant immediately prior to the assignment.
c. Except as provided above, Landlord's consent to any sublease shall
not be unreasonably withheld. If Tenant shall sublet all or any portion of the
Premises that Tenant has occupied for its own use at any time, then one half
(1/2) of any consideration paid by the sublessee for the portion of the Premises
being sublet that previously was occupied by Tenant that exceeds the Annual
Basic Rent and Rental Adjustments provided by this Lease for such portion of the
Premises being sublet shall be due, owing and payable by Tenant to Landlord when
paid or owing by the sublessee under the sublease. Should the consideration paid
by the sublessee exceed the rental amounts stated above, Tenant shall be
entitled to reimbursement for Leasing Commissions or Landlord-approved Tenant
Improvements Tenant paid to procure the sublease, amortized in equal,
non-interest bearing, monthly installments over the term of the sublease only to
the extent of the lesser of the amount of said lease commissions and/or Landlord
- approved Tenant Improvements or the amount of such excess. For the purpose of
this Subparagraph 26.c., the rent for each square foot of floor space in the
Premises shall be deemed equal.
27. SUBORDINATION. Without the necessity of any additional document being
executed by Tenant for the purpose of effecting a subordination, and at the
election of Landlord or any first mortgagee with a lien on the Building or any
ground lessor with respect to the building, this Lease shall be subject and
subordinate at all times to:
a. all ground leases or underlying leases which may now exist or
hereafter be executed affecting the Building or the land upon which the Building
is situated or both, and
b. the lien of any mortgage or deed of trust which may now exist or
hereafter be executed in any amount for which the Building, land, ground leases
or underlying leases, or Landlord's interest or estate in any of said items is
specified as security.
Notwithstanding the foregoing, Landlord shall have the right to
subordinate or cause to be subordinated any such ground leases or underlying
leases or any such liens to this Lease. In the event that any ground lease or
underlying lease terminates for any reason or any mortgage or deed of trust is
foreclosed or a conveyance in lieu of foreclosure is made for any reason, Tenant
shall, notwithstanding any subordination, attorn to and become the Tenant of the
successor in interest to Landlord, at the option of said successor in interest.
Tenant covenants and agrees to execute and deliver, upon demand by Landlord and
in the form requested by Landlord, and reasonably acceptable to Tenant any
additional documents evidencing the priority or subordination of this Lease with
respect to any such ground leases or underlying leases or the lien of any such
mortgage or deed of trust and hereby irrevocably appoints Landlord as
attorney-in-fact of Tenant to execute, deliver and record any such document in
the name and on behalf of Tenant. Provided Tenant is not in default under this
Lease, any such successor in interest to Landlord shall not disturb Tenant's
occupancy and enjoyment of the Premises.
28. ESTOPPEL CERTIFICATE.
a. Within ten (10) days following any written request which Landlord
may make from time to time, Tenant shall execute and deliver to Landlord a
statement certifying: (i) the Commencement Date of this Lease; (ii) the fact
that this Lease is unmodified and in full force and effect (or, if there have
been modifications hereto, that this Lease is in full force and effect, and
stating the date and nature of such modifications); (iii) the date to which the
Rent and other sums payable under this Lease have been paid: (iv) that there are
no current defaults under this Lease by either Landlord or Tenant except as
specified in Tenant' statement; and (v) such other matters reasonably requested
by Landlord. Landlord and Tenant intend that any statement delivered pursuant to
this Paragraph 28 may be relied upon by any mortgagee, beneficiary, purchaser,
or prospective purchaser of the Building, property or any interest therein.
b. Tenant's failure to deliver such statement within such time shall be
conclusive upon Tenant: (i) that this Lease is in full force and effect, without
modification except as may be represented by Landlord, (ii) that there are no
uncured defaults in Landlord's performance, and (iii) that not more than one (1)
month's Rent has been paid in advance.
29. BUILDING PLANNING - DELETED.
30. RULES AND REGULATIONS. Tenant shall faithfully observe and comply with the
"Rules and Regulations", a copy of which is attached hereto and marked Exhibit
"C", and all reasonable and nondiscriminatory modifications thereof and
additions thereto from time to time put into effect by Landlord. Landlord shall
not be responsible to Tenant for the violation or non-performance by any other
tenant or occupant of the Building of any of said Rules and Regulations.
13
31. GOVERNING LAW. This Lease shall be governed by and construed pursuant to the
laws of the State of Washington.
32. SUCCESSORS AND ASSIGNS. Except as otherwise provided in this Lease, all of
the covenants, conditions and provisions of this Lease shall be binding upon and
shall inure to the benefit of the parties hereto and their respective heirs,
personal representatives, successors and assigns.
33. SURRENDER OF PREMISES. The voluntary or other surrender of this Lease by
Tenant, or a mutual cancellation thereof, shall not work a merger, and shall, at
the option of Landlord, operate as an assignment to it of any or all subleases
or subtenancies.
34. ATTORNEY'S FEES.
a. In the event that either party hereto should bring suit for the
possession of the Premises, for the recovery of any sum due under this Lease, or
because of the breach of any provision of this Lease, or for any other relief
against the other party hereunder, then all costs and expenses, including
reasonable attorney's fees, incurred by the prevailing party therein shall be
paid by the other party, which obligation on the part of the other party shall
be deemed to have accrued on the date of the commencement of such action and
shall be enforceable whether or not the action is prosecuted to judgment.
b. Should Landlord be named as a defendant in any suit brought against
Tenant in connection with or arising out of Tenant's occupancy hereunder, Tenant
shall pay to Landlord its costs and expenses incurred in such suit, including
reasonable attorney's fees.
35. PERFORMANCE BY TENANT. All covenants and agreements to be performed by
Tenant under any of the terms of this Lease shall be performed by Tenant at
Tenant's sole cost and expense and without any abatement of rent. If Tenant
shall fail to pay any sum of money, other than Annual Basic Rent, required to be
paid by it hereunder or shall fail to perform any other act on its part to be
performed hereunder, and such failure shall continue for ten (10) days after
notice thereof by Landlord, Landlord may, without waiving or releasing Tenant
from obligations of Tenant, but shall not be obligated to, make any such payment
or perform any such other act on Tenant's part to be made or performed as in
this Lease provided all sums so paid by Landlord and all necessary incidental
costs together with interest thereon at the maximum rate permissible by law,
from the date of such payment by Landlord, shall be payable to Landlord on
demand. Tenant covenants to pay any such sums, and Landlord shall have (in
addition to any other right or remedy of Landlord) the same rights and remedies
in the event of the non-payment thereof by Tenant as in the case of default by
Tenant in the payment of the Annual Basic Rent.
36. MORTGAGE PROTECTION. In the event of any default on the part of Landlord,
Tenant will give notice by registered or certified mail to any beneficiary of a
deed of trust or mortgage covering the Premises whose address shall have been
furnished to Tenant, and shall offer such beneficiary or mortgagee a reasonable
opportunity to cure the default on the same terms and conditions as are
contained in the Lease beginning as of the date the notice from Tenant is
received by such beneficiary or mortgage, including the time to obtain
possession of the Premises by power of sale or a judicial foreclosure, if such
should prove necessary to effect a cure.
37. DEFINITION OF LANDLORD. The term "Landlord" as used in this Lease, so far as
covenants or obligations on the part of Landlord are concerned, shall be limited
to mean and include only the owner or owners, at the time in question, of the
fee title of the Premises or the Lessees under any ground lease, if any. In the
event of any transfer, assignment or other conveyance or transfers of any such
title, Landlord herein named (and in the case of any subsequent transfers or
conveyances, the then grantor) shall be automatically freed and relieved from
and after the date of such transfer, assignment or conveyance of all liability
as respects the performance of any covenants or obligations on the part of
Landlord contained in this lease thereafter to be performed. Without further
agreement, the transferee of such title shall be deemed to have assumed and
agreed to observe and perform any and all obligations of Landlord thereunder,
during its ownership to the Premises. Landlord may transfer its interest in the
Premises without the consent of Tenant and such transfer or subsequent transfer
shall not be deemed a violation on Landlord's part of any of the terms and
conditions of this Lease.
38. WAIVER. The waiver by Landlord of any breach of any term, covenant or
condition herein contained shall not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant or condition herein contained,
nor shall any custom or practice which may grow up between the parties in the
administration of the terms hereof be deemed a waiver of or in any way affect
the rights of Landlord to insist upon the performance by Tenant in strict
accordance with said terms. The subsequent acceptance of Rent hereunder by
Landlord shall not be deemed to be a waiver of any preceding breach by Tenant of
any term, covenant or condition of this Lease, other than the failure of Tenant
to pay the particular Rent so accepted, regardless of Landlord's knowledge of
such preceding breach at the time of acceptance of such Rent.
39. IDENTIFICATION OF TENANT. IF MORE THAN ONE PERSON OR ENTITY EXECUTES THIS
LEASE AS TENANT:
a. each of them is jointly and severally liable for the keeping,
observing and performing of all of the terms, covenants, conditions, provisions
and agreements of this Lease to be kept, observed and performed by Tenant; and
b. the term "Tenant" as used in this Lease shall mean and include each
of them jointly and severally.
The act of or notice from, or notice or refund to, or the signature of
any one or more of them, with respect to the tenancy of this Lease, including,
but not limited to, any renewal, extensions, expiration, termination or
modification of this Lease, shall be binding upon each and all of the persons
executing this Lease as Tenant with the same force and effect as if each and all
of them has so acted or so given or received such notice or refund or so signed.
14
40. PARKING. As an appurtenance to the Premises, Tenant is entitled to use the
number of parking spaces in the parking facilities of the Building designated in
Subparagraph 1.o. Tenant may use such parking spaces upon the terms and
conditions provided in the Parking Rules attached hereto as Exhibit "E", if any,
and all reasonable and nondiscriminatory modifications thereto from time to time
put into effect by Landlord. Landlord may contract with a Parking Operator to
operate the parking facilities. Landlord and the Parking Operator shall not be
responsible for the violation or nonperformance by any other tenant or any
agent, employee or invitee thereof of any of said terms and conditions. Tenant
shall pay to Landlord, as and when billed and as Additional Rent, the amount per
space designated in Paragraph 1.o., if any, times the number of spaces shown
there, or such other nondiscriminatory charges for monthly parking set forth
from time to time by Landlord.
41. TERMS AND HEADINGS. The words "Landlord" and "Tenant" as used herein shall
include the plural as well as the singular. Words used in any gender include
other genders. The paragraph headings of this Lease are not a part of this Lease
and shall have no effect upon the construction or interpretation of any part
hereof.
42. EXAMINATION OF LEASE. Submission of this instrument for examination or
signature by Tenant does not constitute a reservation of or option for lease,
and is not effective as a lease or otherwise until execution by and delivery to
both Landlord and Tenant.
43. TIME. Time is of the essence with respect to the performance of every
provision of this Lease in which time or performance is a factor.
44. PRIOR AGREEMENT; AMENDMENTS. This Lease contains all of the agreements of
the parties hereto with respect to any matter covered or mentioned in this
Lease, and no prior agreement or understanding pertaining to any such matter
shall be effective for any purpose. No provisions of this Lease may be amended
or added to except by an agreement in writing signed by the parties hereto or
their respective successors in interest.
45. SEPARABILITY. Any provision of this lease which shall prove to be invalid,
void or illegal in no way affect, impairs or invalidates any other provision
hereof, and such other provisions shall remain in full force and effect.
46. RECORDING. Neither Landlord or Tenant shall record this Lease nor a short
form memorandum thereof without the consent of the other.
47. LIMITATION ON LIABILITY. Deleted.
48. RIDERS. Clauses, plats and riders, if any, signed by Landlord and Tenant and
affixed to this Lease are a part hereof.
49. MODIFICATION FOR LENDER. If, in connection with obtaining construction,
interim or permanent financing for the Building, the lender shall request
reasonable modifications to this Lease as a condition to such financing, Tenant
will not unreasonably withhold, delay or defer its consent thereto, provided
that such modifications do not increase the obligations of Tenant hereunder or
materially adversely affect the leasehold interest hereby created or Tenant's
rights hereunder.
50. ACCORD AND SATISFACTION. No payment by Tenant or receipt by Landlord of a
lesser amount than the Rent payment herein stipulated shall be deemed to be
other than on account of the Rent, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment as Rent be deemed an
accord and satisfaction, and Landlord's right to recover the balance of such
Rent or pursue any other remedy provided in this Lease.
Tenant agrees that each of the foregoing covenants and agreements shall
be applicable to any covenant or agreement either expressly contained in this
Lease or imposed by any statute or a common law.
IN WITNESS WHEREOF, the parties have executed the Lease as of the date
first above written.
LANDLORD: TENANT:
1130 Rainier LLC, a Washington limited Loudeye Corp., a Delaware corporation
liability company
by SEAVEST FINANCIAL CORPORATION
a Washington Corporation, managing
member by:__________________________________
by__________________________________ Its:_________________________________
Xxxx X. Xxxx, President
LOUDEYE ENTERPRISE COMMUNICATIONS,
INC., A DELAWARE CORPORATION
by:__________________________________
Its:_________________________________
15
THE 1130 RAINIER BUILDING
EXHIBIT "A"
Floor Plan
16
EXHIBIT "A-1"
Legal Description
Lots 17 through 28 in Block 24 of Rainier Boulevard Addition to the city of
Seattle, as per plat recorded in Volume 9 of Plats, Page 59, records of King
County, Washington; all situated in the City of Seattle, County of King, State
of Washington
17
THE 1130 RAINIER BUILDING
EXHIBIT "B"
WORK LETTER AGREEMENT
Ladies and Gentlemen:
You (hereinafter called "Tenant") and we (hereinafter called "Landlord") are
executing simultaneously with this Work Letter Agreement, a written lease (the
"Lease") covering those certain premises more particularly described in Exhibit
"A" to the Lease, (hereinafter referred to as the "Premises") in the building
addressed at 0000 Xxxxxxx Xxx Xx, Xxxxxxx, Xxxxxxxxxx 00000.
To induce Tenant to enter into the Lease (which is hereby incorporated by
reference to the extent that the provisions of this Agreement may apply thereto)
and in consideration of the mutual covenants hereinafter contained, Landlord and
Tenant mutually agree as follows: NO WORK- THE PREMISES ARE LEASED "AS IS"
1. TENANT'S PLANS AND SPECIFICATIONS.
a. Except to the extent otherwise provided in Subparagraph 1.b. and
1.c., Landlord agrees that, at its sole cost and expense, through its architect
or space planner, Landlord will furnish all architectural, mechanical and
electrical engineering plans required for the performance of the work
(hereinafter referred to as "Building Standard Work", Exhibit "B-1") herein
below described, including complete detailed plans and specifications for
Tenant's partition layout, reflected ceiling, heating and air conditioning,
electrical outlets and switches and telephone outlets.
b. It is understood and agreed that Tenant may require work
(hereinafter referred to as "Building Nonstandard Work") different from or in
addition to the Building Standard Work. In such event, any architectural,
mechanical, electrical and plumbing plans and specifications required shall be
furnished, at Tenant's sole cost and expense, by Landlord's architect or space
planner.
c. It is understood and agreed that any interior decorating service,
such as selection of wall paint colors and/or wall coverings, fixtures,
carpeting, and any or all other decorator items required by Tenant in the
performance of said work referred to hereinabove in Subparagraphs 1.a. and 1.b.
shall be at Tenant's sole cost and expense.
d. It is understood and agreed that all plans and specifications
referred to hereinabove in Subparagraphs 1.a. and 1.b. are subject to Landlord's
approval, which Landlord agrees shall not be unreasonably withheld.
2. BUILDING STANDARD WORK AT LANDLORD'S COST AND EXPENSE.
Landlord agrees, at its sole cost and expense to furnish and install
all of the following "Building Standard Work" limited to the quantities and/or
dollar amount specified on the attached Exhibit "B-1", and as selected and
specified by Landlord and as indicated on Tenant's final approved plans.
3. BUILDING NONSTANDARD WORK AT TENANT'S COST AND EXPENSE.
Provided Tenant's plans and specifications are furnished by the date
required hereinabove in Subparagraph 1.e., Landlord shall cause Tenant's
"Building Nonstandard Work" to be installed by Landlord's contractor, but at
Tenant's sole cost and expense. Prior to commencing any such work, Landlord, its
contractor, or its architects shall submit to Tenant a written estimate of the
cost thereof. If Tenant fails to provide to Landlord written notice of its
approval of such costs within five (5) days after submission thereto to Tenant,
such failure shall be deemed a disapproval thereof, and Landlord's contractor
shall not proceed with such work.
4. SUBSTITUTION AND CREDITS.
Tenant may, with Landlord's approval and provided that Landlord has not
previously purchased said material, select different new materials (except
window coverings) in place of "Building Standard Work" materials which would
otherwise be initially furnished and installed by Landlord for or in the
interior of the Premises under the provisions of this Work Letter Agreement,
provided such selection is indicated on said Tenant's final plans. If Tenant
shall make any such selection and if the cost of such different new materials of
Tenant's selection shall exceed Landlord's cost of the "Building Standard Work"
materials thereby replaced, Tenant shall pay to Landlord, as hereinafter
provided, the difference between the cost of such different new materials and
the credit given by Landlord for the materials thereby replaced.
No such different new materials shall be furnished and installed in
replacement for any of Landlord's "Building Standard Work" materials until
Landlord or its contractor and/or its architect or space planner shall have
18
advised Tenant in writing of, and Landlord or this contractor and/or it
architect or space planner have agreed in writing on, the cost of such different
materials and Landlord's cost of such replaced Landlord's "Building Standard
Work" materials.
One hundred percent (100%) of all amounts payable by Tenant to Landlord pursuant
to Paragraphs 3. and 4. of this Work Letter Agreement shall be paid by Tenant
upon Tenant's execution of the written estimate for the work required.
5. COMPLETION AND RENTAL COMMENCEMENT DATE.
It is agreed that Tenant's obligation for the payment of rent under the
Lease shall not commence until Landlord has substantially completed all work to
be performed by Landlord as hereinabove set forth in Paragraphs 2. and 3.;
provided, however, that if Landlord shall be delayed in substantially completing
said work as a result of:
a. Tenant's failure to furnish plans and specifications in accordance
with the date specified hereinabove in Subparagraph 1.e.; or
b. Tenant's request for materials, finishes or installations other than
Landlord's "Building Standard Work"; or
c. Tenant's changes in the said plans and specifications after their
submission to Landlord in accordance with the provisions of Subparagraph 1.e.
hereinabove; or
d. Tenant's failure to approve estimates pursuant to Paragraph 3.
hereinabove covering "Building Nonstandard Work"; then the commencement of the
term of said lease shall be accelerated by the number of days of such delay.
If the foregoing correctly sets forth our understanding, kindly sign
copies of this Work Letter Agreement where indicated.
LANDLORD: TENANT:
1130 Rainier LLC, a Washington limited _____________________________________
liability company
by SEAVEST FINANCIAL CORPORATION
a Washington Corporation,
managing member by:__________________________________
by:_________________________________ Its:_________________________________
Xxxx X. Xxxx, President
19
THE 1130 RAINIER BUILDING
EXHIBIT "B-1"
Building Standard Work
Landlord shall build, per a mutually agreed upon space plan and working
drawings, all Tenant Improvement at a cost not to exceed N/A and no/100 Dollars
($ N/A ). This allowance shall include the cost of all construction, taxes,
permits, contractor profits, construction drawing preparation, and the cost of
standard space planning. THE PREMISES ARE LEASED "AS IS "
All Tenant Improvements shall utilize building standard materials unless
specified in writing by the Tenant and agreed to by the Landlord. Landlord will
use its best efforts to expedite the construction process and minimize the
disruption to Tenant's business activity. Tenant agrees to cooperate, as is
reasonable, with Landlord in completing the required Tenant Improvements.
20
THE 1130 RAINIER BUILDING
EXHIBIT "C"
Rules and Regulations
1. No sign, placard, picture, name or notice shall be installed or displayed
on any part of the outside or inside of the Building without the prior
written consent of Landlord. Landlord shall have the right to remove, at
Tenant's expense and without notice, any sign installed or displayed in
violation of this rule. All approved signs or lettering on doors and walls
shall be printed, painted, affixed or inscribed at the expense of Tenant by
a person chosen by Landlord. Tenant shall have the non exclusive right to
place signs on the exterior of the Building, subject to Landlord, City of
Seattle, and Historical Preservation Board approval. All Costs associated
with Tenant's signage, including, without limitation, all repair and
maintenance costs occasioned by the installation of the signage and all
repair and maintenance subsequently occasioned to the Building or the
signage as a result of the Tenant's signage shall be borne by the Tenant.
2. If Landlord objects in writing to any curtain, blinds, shades, screens or
hanging plants or other similar objects attached to or used in connection
with any window or door of the premises, Tenant shall immediately
discontinue such use. No awning shall be permitted on any part of the
Premises. Tenant shall not place anything against or near glass partitions
or doors or windows which may appear unsightly from outside the Premises.
3. Tenant shall not obstruct any sidewalk, halls, passages, exits, entrances,
elevators, escalators and stairways of the Building. The halls, passages,
exits, entrances, elevators, escalators and stairways are not open to the
general public. Landlord shall in all cases retain the right to control and
prevent access thereto of all persons whose presence in the judgment of
Landlord would be prejudicial to the safety, character, reputation and
interest of the Building and its tenants; provided that nothing herein
contained shall be construed to prevent such assess to persons with whom
any tenant normally deals in the ordinary course of its business, unless
such persons are engaged in illegal activities. No tenant and no employee
or invitee of any tenant shall go upon the roof of the Building.
4. The directory of the Building will be provided exclusively for the display
of the name and location of Tenants only, and Landlord reserves the right
to exclude any other names therefrom.
5. All cleaning and janitorial services for the Building and the Premises
shall be provided exclusively through Landlord, and except with the written
consent of Landlord, no person or persons other than those approved by
Landlord shall be employed by Tenant or permitted to enter the Building for
the purpose of cleaning the same. Tenant shall not cause any unnecessary
labor by carelessness or indifference to the good order and cleanliness of
the Premises. Landlord shall not in any way be responsible to any Tenant
for any loss of property on the Premises, however occurring, or for any
damage to any Tenant's property by the janitor or any other employee or any
other person.
6. Landlord will furnish to Tenant, free of charge, two keys to each door lock
in the Premises. Landlord may make a reasonable charge for any additional
keys. Tenant shall not make or have made additional keys, and Tenant shall
not alter any lock or install a new additional lock or bolt on any door of
its Premises. Tenant, upon termination of its tenancy, shall deliver to
Landlord the keys of all doors which have been furnished to Tenant, and in
the event of loss of any key so furnished, shall pay Landlord therefor.
7. If Tenant requires telegraphic, telephonic, burglar alarm or similar
services, it shall first obtain, and comply with, Landlord's instructions
in their installation.
8. Any freight elevator shall be available for use by all tenants in the
Building, subject to such reasonable scheduling as Landlord in its
discretion shall deem appropriate. No equipment, materials, packages,
supplies, merchandise or other property will be received in the Building or
carried in the elevators except between such hours and in such elevators as
may be designated by Landlord.
9. Tenant shall not place a load on any floor of the Premises which exceeds
the load per square foot which such floor was designed to carry and which
is allowed by law. Landlord shall have the right to prescribe the weight,
size and position of all equipment, materials, furniture or other property
brought into the building. Heavy objects shall, if considered necessary by
Landlord, stand on such platforms as determined by Landlord to be necessary
to properly distribute the weight. Business machines and mechanical
equipment belonging to Tenant, which cause noise or vibration that may be
transmitted to the structure of the Building or to any space therein to any
tenants in the Building, shall be placed and maintained by Tenant, at
Tenant's expense, on vibration eliminators or other devices sufficient to
eliminate noise or vibration. The persons employed to move such equipment
in or out of the Building must be acceptable to Landlord. Landlord will not
be responsible for loss of, or damage to, any such equipment or other
property from any cause, and all damage done to the Building by maintaining
or moving such equipment or other property shall be repaired at the expense
to Tenant.
10. Tenant shall not use or keep in the Premises any kerosene, gasoline or
inflammable or combustible fluid or material other than those limited
quantities necessary for the operation or maintenance of office equipment.
Tenant shall not use of permit to be used in the Premises any foul or
noxious gas or substance, or permit or allow the premises to be occupied or
used in a manner offensive or objectionable to Landlord or other occupants
of the Building by reason of noise, odors or vibrations, nor shall Tenant
bring into or keep in or about the Premises any birds or animals.
11. Tenant shall not use any method of heating or air conditioning other than
that supplied by Landlord.
12. Tenant shall not waste electricity, water or air conditioning and agrees to
cooperate fully with Landlord to assure the most effective operation of the
Building's heating and air conditioning and to comply with any government
energy-saving rules, laws or regulations of which Tenant has actual notice,
and shall refrain from attempting to adjust controls. Tenant shall keep
corridor doors closed, and shall use best efforts to close window coverings
at the end of each business day.
13. Landlord reserves the right, exercisable without notice and without
liability to Tenant, to change the name and street address of the Building.
21
14. Landlord reserves the right to exclude from the Building between the hours
of 6 p.m. and 7 a.m. the following day, or such other hours as may be
established from time to time by Landlord, and on Sundays and legal
holidays, any person unless that person is known to the person or employee
in charge of the Building and has a pass or is properly identified. Tenant
shall be responsible for all persons for whom it requests passes and shall
be liable to Landlord for all acts of such persons. Landlord reserves the
right to prevent access to the Building in case of invasion, mob, riot,
public excitement or other commotion by closing the doors or by other
appropriate action.
15. Tenant shall close and lock the doors of its Premises and entirely shut off
all water faucets or other water apparatus, and electricity, gas or air
outlets before Tenant and its employees leave the Premises. Tenant shall be
responsible for any damage or injuries sustained by other tenants or
occupants of the Building or by Landlord for noncompliance with this rule.
16. Tenant shall not obtain for use on the Premises ice, drinking water, food,
beverage, towel or other similar services or accept barbering or boot
blacking service upon the Premises, except at such hours and under such
regulations as may be fixed by Landlord.
17. The toilet rooms, toilets, urinals, wash bowls and other apparatus shall
not be used for any purpose other than that for which they were constructed
and no foreign substance of any kind whatsoever shall be thrown therein.
The expense of any breakage, stoppage or damage resulting from the
violation of this rule shall be borne by the tenant who, or whose employees
or invitees, shall have caused it.
18. Tenant shall not sell, or permit the sale at retail, of newspapers,
magazines, periodicals, theater tickets or any other goods or merchandise
to the general public in or on the Premises. Tenant shall not make any
room-to-room solicitation of business from other tenants in the Building.
Tenant shall not use the Premises for any business or activity other than
that specifically provided for in Tenant's Lease.
19. Except for equipment reasonably required for Tenant's Business (with
Landlord's prior consent which shall not be unreasonably withheld), Tenant
shall: (i) not install any radio or television antenna, loudspeaker or
other device on the roof or exterior walls of the Building; or (ii)
interfere with radio or television broadcasting or reception from or in the
Building or elsewhere.
20. Other than to hand pictures/paintings, photographs, marking or bulletin
boards, and the like, Tenant shall not xxxx, drive nails, screws or drill
into the partitions, woodwork or plaster or any way deface the Premises or
any part thereof. Landlord reserves the right to direct electricians as to
where and how telephone and telegraph wires are to be introduced to the
Premises. Tenant shall not cut or bore holes for wires. Tenant shall not
affix any floor covering to the floor of the Premises in any manner except
as approved by Landlord. Tenant shall repair any damage resulting from
noncompliance with this rule.
21. Deleted..
22. Canvassing, soliciting and distribution of handbills or any other written
material, and peddling in the Building are prohibited, and each tenant
shall cooperate to prevent same.
23. Landlord reserves the right to exclude or expel from the Building any
person who, in Landlord's judgment, is intoxicated or under the influence
of liquor or drugs or who is in violation of the Rules and Regulations of
the Building.
24. Tenant shall store all its trash and garbage within its Premises. Tenant
shall not place in any trash box or receptacle any material which cannot be
disposed of in the ordinary and customary manner of trash and garbage
disposal. All garbage and refuse disposal shall be made in accordance with
directions issued from time to time by Landlord.
25. The Premises shall not be used for the storage of merchandise held for sale
to the general public, or for lodging or for manufacturing of any kind, nor
shall the Premises be used for any improper, immoral or objectionable
purpose. No cooking shall be done or permitted by any tenant on the
Premises except that use by Tenant of Underwriter's Laboratory approved
equipment for brewing coffee, tea, hot chocolate and similar beverages
shall be permitted, provided that such equipment and use is in accordance
with all applicable federal, state, county and city laws, codes,
ordinances, rules and regulations. In addition, Tenant and its employees
shall be permitted to use a microwave oven to heat or re-heat common
consumable foods.
26. Tenant shall not use in any space or in the public halls of the Building
any hand truck except those equipped with rubber tires and side guards or
such other material-handling equipment as Landlord may approve. Tenant
shall not bring any other vehicles of any kind into the Building.
27. Without the written consent of Landlord, Tenant shall not use the name of
the Building in connection with or in promoting or advertising the business
of Tenant except as Tenant's address.
28. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental
agency.
29. Tenant assumes any and all responsibility for protecting its Premises from
theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed.
30. The requirements of Tenant will be attended to only upon appropriate
application to the office of the Building by an authorized individual.
Employees of Landlord shall not perform any work or do anything outside of
their
22
regular duties unless under special instructions from Landlord, and no
employee of Landlord will admit any person (Tenant or otherwise) to any
office without specific instructions.
31. Tenant shall not park its vehicles in parking areas designated by Landlord
as areas for parking by visitors to the Building. Tenant's visitors shall
park in the designated visitor spaces..
32. Landlord may waive one or more of these Rules and Regulations for the
benefit of Tenant or any other tenant, but no such waiver by Landlord shall
be construed as a waiver of such Rules and Regulations against any or all
of the tenants in the Building.
33. These Rules and Regulations are in addition to, and shall not be construed
to in any way modify or amend, in whole or in part, the terms, covenants,
agreements and conditions of any lease of premises in the Building.
34. Landlord reserves the right to make such other and reasonable Rules and
Regulations as, in its judgment, may from time to time be needed for the
safety and security, for care and cleanliness of the Building and for the
preservation of good order therein. Tenant agrees to abide by all such
Rules and Regulations hereinabove stated and any additional rules and
regulations which are adopted.
35. Tenant shall be responsible for the observance of all to the foregoing
rules by Tenant's employees, agents, clients, customers, invitees and
guests.
23
EXHIBIT D
STANDARDS FOR UTILITIES AND SERVICES
The following Standards for Utilities and Services are in effect. Landlord
reserves the right to adopt nondiscriminatory modifications and additions
hereto:
As long as Tenant is not in default under any of the terms, covenants,
conditions, provisions or agreements of this Lease, at Tenant's sole cost,
Landlord shall:
(a) Provide non-attended automatic passenger and one non-attended freight
elevator facility twenty four (24) hours per day, seven (7) days per week.
(b) On all days of the year ("24/7") as requested by Tenant, ventilate the
Premises and furnish air conditioning or heating on such days and hours, when in
the reasonable judgment of Landlord it may be required for the comfortable
occupancy of the Premises. The building standard comfortable occupancy
temperature shall range between 68 degrees F and 78 degrees F during usual
business hours. The air conditioning system achieves maximum cooling when the
window coverings are closed. Landlord shall not be responsible for room
temperatures if Tenant does not keep all window covering in the Premises closed
whenever the system is in operation. Tenant agrees to co-operate fully at all
times with Landlord, and to abide by all regulations and requirements which
Landlord may prescribe for the proper function and protection of said air
conditioning system. Tenant agrees not to connect any apparatus, device, conduit
or pipe to the Building chilled and hot water air conditioning supply lines.
Tenant further agrees that neither Tenant nor its servants, employees, agents,
visitors, licensees or contractors shall at any time enter mechanical
installations or facilities of the Building or adjust, tamper with, touch or
otherwise in any manner affect said installations or facilities.
(c) Landlord shall furnish to the Premises, during the usual business hours
on business days, electric current as required by the Building standard office
lighting, the computer center known as "Grand Central", and fractional
horsepower office business machines in the amount of the number of xxxxx per
square foot requested by Tenant, but in no event more than the total current
size of the electrical service to the building less the amount of power needed
for like purposes for the remainder of the Building not occupied by Tenant. If a
separate meter is not installed at Tenant's cost, such excess cost will be
established by an estimate agreed upon by Landlord and Tenant, and if the
parties fail to agree, as established by independent licensed engineer. Tenant
agrees not to use any apparatus or device in, or upon, or about the Premises
which may in any way increase the amount of such services usually furnished or
supplied to said Premises, and Tenant and Tenant further agrees not to connect
any apparatus or device with wires, conduits or pipes, or other means by which
such services are supplied, for the purpose of using additional or unusual
amounts of such services without written consent of Landlord. Should Tenant use
the same to excess, the refusal on the part of Tenant to pay upon demand of
Landlord the amount established by Landlord for such excess charge shall
constitute a breach of the obligation to pay rent under this Lease and shall
entitle Landlord to the rights therein granted for such breach. At all times
Tenant's use of electric current shall never exceed the capacity of the feeders
to the Building or the risers or wiring installation and other than Tenant's
existing equipment (including desk-top personal computers and other similar
devices), Tenant shall not install or use or permit the installation or use of
any computer or electronic data processing equipment in the Premises without the
prior written consent of Landlord, which consent will not be unreasonably
withheld, delayed, or conditioned.
(d) Water will be available in public areas for drinking and lavatory
purposes only, but if Tenant requires, uses or consumes water for any purposes
in addition to ordinary drinking and lavatory purposes of which fact Tenant
constitutes Landlord to be the sole judge, Landlord may install a water meter
and thereby measure Tenant's water consumption for all purposes. Tenant shall
pay Landlord for the cost of the meter and the cost of the installation thereof
and throughout the duration of Tenant's occupancy Tenant shall keep said meter
and installation equipment in good working order and repair at Tenant's own cost
and expense, in default of which Landlord may cause such meter and equipment to
be replaced or repaired and collect the cost thereof from Tenant. Tenant agrees
to pay for water consumed, as shown on said meter, as and when bills are
rendered, and on default in making such payment, Landlord may pay such charges
and collect the same from Tenant. Any such costs or expenses incurred, or
payments made by Landlord for any of the reasons or purposes hereinabove stated
shall be deemed to be additional rent payable by Tenant and collectible by
Landlord as such.
(e) Provide janitor service to the Premises, provided the same are used,
exclusively as offices, and are kept reasonably in order by Tenant, and if to be
kept clean by Tenant, no one other than persons approved by Landlord shall be
permitted to enter the Premises for such purposes. If the Premises are not used
exclusively as offices, they shall be kept clean and in order by Tenant, at
Tenant's expense, and to the satisfaction of Landlord, and by persons approved
by Landlord, Tenant shall pay to Landlord the cost of removal of any of Tenant's
refuse and rubbish usually attendant upon the use of the Premises as offices.
Landlord reserves the right to stop services of the elevator, plumbing,
ventilation, air conditioning and electric systems, when necessary (upon
reasonable advance notice when possible), by reason of accident or emergency or
for repairs, alterations or improvements, in the reasonable judgment of
Landlord, desirable or necessary to be made, until said repairs, alterations or
improvements shall have been completed, and shall further have no responsibility
or liability for failure to supply elevator facilities, plumbing, ventilating,
air conditioning or electric service, when prevented from so doing by strike or
accident or by any cause beyond Landlord's reasonable control, or by laws,
rules, orders, ordinances, directions, regulations or requirements of any
federal, state, county or municipal authority or failure of gas, oil or other
suitable fuel supply or inability by exercise of reasonable diligence to obtain
gas, oil or other suitable fuel. It is expressly understood and agreed that any
covenants on Landlord's part to furnish any service pursuant to any of the
terms, covenant, conditions,
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provisions or agreements of this Lease, or to perform any act or thing for the
benefit of Tenant, shall not be deemed breached if Landlord is unable to furnish
or perform the same by virtue of a strike or labor trouble or any other cause
whatsoever beyond Landlord's control.
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Addendum A
Lease
Between
1130 Rainier LLC
and
Loudeye Corp. et. al.
Dated: December 20, 2003
The following terms and conditions shall supercede any terms and conditions
to the contrary which may be contained in the above described lease to
which this Addendum is attached:
1 .ANNUAL BASIC RENT; The annual basic rent per square foot leased shall
be:
Year Annual Rent per square foot
1 $21.00
2 $22.05
Provided however, Landlord shall have the option to accept in lieu of cash
warrants or other equity instruments offered by Tenant which are acceptable to
Landlord in partial payment of the rent based on the following formula:
During the first year of the term only, Tenant shall pay to
Landlord $43,000 of the total monthly rent in cash (but only
$33,000 per month during the period January 1, 2004, through
March 31, 2004) in the manner set forth in paragraph 3,
below, and the balance of the first year's annual rent due,
$337,363, shall be paid on lease execution by warrants,
options, or other equity instruments acceptable to Landlord
and approved by the Tenant's board of directors, the total
value of which shall equal $337,363 on the day this
agreement is approved by Tenant's board of directors.
Landlord shall exercise this option, if at all, by a written
notification (or by e-mail) to Tenant on the same day of
approval by Tenant's board of directors and receipt of
written notification(or by e-mail) thereof by Landlord.
2. LANDLORD'S RIGHT TO TERMINATE LEASE. The Landlord shall have the
continuing right to terminate this Lease as to either or both floors 1 or 2, or
any portion thereof, upon one hundred and fifty (150) days prior written notice
to Tenant in the event Landlord leases all or a portion of either or both
floors.
3. TIMING OF TENANT'S PAYMENTS. Rent, utilities, and expenses shall be
prepaid monthly, in advance, so long as Tenant has not defaulted on its lease
obligations and Tenant's unrestricted cash on hand covers its current burn rate
for the next two (2) years. If either of these conditions is not met, Tenant
thereafter shall pay rent, utilities, and expenses quarterly, in advance.
4. ADDITIONAL EXPENSE REIMBURSEMENTS. Tenant shall pay for all utilities
relating to its entire space and the following additional extraordinary costs
relating to its computer room: (a) UPS, generator, wiring, and HVAC repair and
maintenance; (b) security; (c) life safety; (d) insurance; and (e) damage to its
equipment not otherwise covered by Landlord's or Tenant's insurance.
5. ROOF RIGHTS. Tenant shall have the right to use the existing
communication dishes and/or antennae on the roof of the Building at no charge
throughout the term of this Lease.
6. FINANCIAL REPORTING. In the event Tenant ceases to be a publicly traded
company, Tenant shall provide Landlord with such quarterly operating and balance
sheet reports as may be required by Landlord or Landlord's lenders.
7. CONFLICT. In the event of a conflict between any term or condition
contained in this Addendum and a term or condition contained in the Lease to
which this Addendum is attached, the term or condition contained in this
Addendum shall prevail.
26
STATE OF WASHINGTON )
)ss.
COUNTY OF.......... )
On this day of _______20______ before me, the undersigned, a Notary Public in
and for the State of_________ duly commissioned and sworn, personally appeared
____________to me known to be the individual described in and who executed the
within and foregoing instrument, and acknowledged that _____ signed the same as
______ free and voluntary act and deed, for the uses and purposes therein
mentioned.
WITNESS my hand and official seal hereto affixed the day and year in this
certificate above written.
_____________________________________
Notary Public in and for the State of
Washington,
STATE OF WASHINGTON )
)ss
COUNTY OF KING )
On this ____ day of ______________________, 20____, before me personally
appeared Xxxx X. Xxxx, to me known to be the President of Seavest Financial
Corporation, managing member of 1130 Rainier LLC, the limited liability company
that executed the within and foregoing instrument and acknowledged the same
instrument to be the free and voluntary act of said partnership, for the uses
and purposes therein mentioned and on oath stated that he is authorized to
execute said instrument.
IN WITNESS WHEREOF I have hereunto set my hand and affixed my official seal, the
day and year first above written.
_____________________________________________
NOTARY PUBLIC in and for the State of _______
Residing at:___________________________________
My Commission expires:_________________________
27
