EXHIBIT 10.5
FIRST AMENDMENT TO LEASE
AND RELEASE
This First Amendment to Lease and Release (the "Amendment") is entered
into as of December 31, 2003, by and between XXXXXXXX XXXXX, LLC, a California
limited liability company ("Landlord"), and SPATIALIGHT, INC., a New York
corporation ("Tenant"), with respect to the following facts and circumstances:
A. Landlord and Tenant have previously entered into that certain Office
Lease dated May 17, 2002 (the " Lease"), of certain premises (the " Premises")
containing approximately 13,541 square feet of rentable area designated as Suite
100 on the ground floor of the office building facility commonly known as Five
Xxxxxxxx Landing, and more particularly described in the Lease. Capitalized
terms used and not otherwise defined herein shall have the meanings given those
terms in the Lease.
B. Landlord and Tenant desire to amend the Lease on the terms and
conditions provided herein.
It is, therefore, agreed as follows:
1. The Lease Expiration Date is hereby extended by twelve (12) months to
August 31, 2009.
2. Section 8 of the Summary of Basic Lease Information is amended in its
entirety to read as follows:
"Base Rent (Article 4):
Monthly Installment Monthly Rental Rate per
Period Annual Base Rent of Base Rent Square Foot of Rentable Area
------ ---------------- ------------------- ----------------------------
Commencement Date - 08/31/03 $203,115.00 $16,926.25 $1.25
09/01/03 - 09/30/03 N/A $34,868.08 $2.575
10/01/03 - 06/30/04 N/A $17,434.04 $1.2875
07/01/04 - 08/31/04 N/A $34,868.08 $2.575
09/01/04 - 08/31/05 $430,603.80 $35,883.65 $2.65
09/01/05 - 08/31/06 $442,790.76 $36,899.23 $2,725
09/01/06 - 08/31/07 $454,977.60 $37,914.80 $2.80
09/01/07 - 08/31/08 $467,164.50 $38,930.38 $2.875
09/01/08 - 08/31/09 $480,976.32 $40,081.36 $2.96"
3. Without limiting Tenant's obligations under the Lease with respect to
mechanic's or materialmen's liens, Tenant shall indemnify, defend, protect and
hold Landlord and the Project
harmless, from and against any and all liens, claims, losses, liability, costs
or expense arising out of, in connection with or otherwise with respect to any
work or services performed by Tenant's Cleanroom contractor, Flowstar, and/or
any of its employees, subcontractors, suppliers or materialmen in connection
with the design, fabrication, installation and/or construction of any clean room
improvements in the Premises or elsewhere.
4. Tenant agrees to, and hereby does, generally release, remise and
forever discharge Landlord, Xxxxxx Pacific Group, Inc. and their respective
Representatives (as defined below) from any and all claims, demands and causes
of action, whether known or unknown, liquidated or contingent, relating to,
arising out of or in any way connected with, the Cleanroom and any other clean
room improvements in the Premises or planned or constructed for Tenant at any
location, including without limitation the design, approval, construction, lack
of construction and/or delay in the design, approval or construction thereof
(collectively, the "Released Matters"). As used herein, the term
"Representatives" means, collectively, a party's past or present affiliates,
shareholders, representatives, attorneys, members, agents, officers, directors
and employees.
5. Landlord agrees to, and hereby does, generally release, remise and
forever discharge Tenant and its Representatives from any and all claims,
demands and causes of action, whether known or unknown, liquidated or
contingent, relating to, arising out of or in any way connected with Tenant's
failure to pay certain amounts when due under the Original Lease for October and
November of 2003 as outlined in a Default Notice dated November 17, 2003, and
failure to pay when due certain rent payments due under the Original Lease in
December of 2003; provided that nothing in this Section 5 shall limit Tenant's
obligation with respect to the revised amounts of Base Rent for October,
November and December of 2003 and payments for estimated Operating Expenses due
with respect to those months pursuant to the Original Lease as amended by this
Amendment (collectively, the "Third Quarter Estimates and Reduced Base Rent
Payments"), or Tenant's obligation to perform any covenant, term or provision
under the Original Lease , as amended by this Amendment, or to pay any other
amount due under the Original Lease, as amended by this Amendment (other than
any late charges or interest with respect to those late payments in October,
November and December of 2003.) Landlord acknowledges receipt of the Third
Quarter Estimates and Reduced Base Rent Payments prior to the date of this
Amendment.
6. With respect to the matters released pursuant to Sections 4 and 5
above, Landlord and Tenant waive the protection provided to creditors under
Section 1542 of the California Civil Code and any similar provisions of any
other jurisdictions. Section 1542 provides:
"A general release does not extend to claims which the creditor does
not know or suspect to exist in his favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor."
Landlord and Tenant each acknowledges that Section 1542, and any equivalent
provisions in any other jurisdiction, if they exist, are designed to protect a
party from waiving claims which the waiving party does not know exist or may
exist. Nonetheless, Landlord and Tenant each agrees that the waiver of Section
1542 and its equivalents is a material portion of the release intended by
Sections 4 and 5 of this Amendment, and Landlord and Tenant, therefore, each
intends to waive all protection provided by Section 1542 and its equivalents.
7. Concurrently with Tenant's execution and delivery of this Amendment,
Tenant shall sign and deliver the Tenant Estoppel Certificate in the form
attached hereto as Exhibit A.
8. Landlord and Tenant each represent and warrant to the other that
neither has had any dealings with any person, firm, broker or finder in
connection with the negotiation of this Amendment and/or the consummation of the
transaction contemplated hereby, and no other broker or other person, firm or
entity is entitled to any commission or finder's fee in connection with said
transaction and Landlord and Tenant do each hereby indemnify and hold the other
harmless from and against any cost, expenses, attorneys' fees or liability for
compensation, commission or charges which may be claimed by any such unnamed
broker, finder or other similar party by reason of any dealings or actions of
the indemnifying party.
9. Each of the parties to this Amendment represents, warrants and agrees
as follows:
(a) No such party (nor any representatives of such party) has made
any statement or representation to the other party regarding any fact relied
upon in entering into this Amendment, and each party does not rely upon any
statement, representation or promise of the other party (or of any
Representatives of the other party), in executing this Amendment except as
expressly stated in this Amendment.
(b) Each party to this Amendment has made such investigation of
the facts pertaining to this Amendment and of all the matters pertaining thereto
as it deems necessary.
(c) Each party or responsible officer thereof has read this
Amendment and understands the contents hereof. Each of the officers executing
this Amendment on behalf of their respective companies is empowered to do so and
thereby binds his or her respective company.
(d) Such party has not heretofore assigned, transferred or
granted, or purported to assign, transfer or grant, any of the Released Matters.
(e) EACH OF LANDLORD AND TENANT IS AWARE THAT IT MAY HEREAFTER
DISCOVER CLAIMS OR FACTS IN ADDITION TO OR DIFFERENT FROM THOSE IT NOW KNOWS OR
BELIEVES TO BE TRUE WITH RESPECT TO THE RELEASED MATTERS. NEVERTHELESS, IT IS
THE INTENTION OF THE PARTIES TO FULLY, FINALLY AND FOREVER SETTLE AND RELEASE
ALL SUCH RELEASED MATTERS, AND ALL CLAIMS RELATIVE THERETO, WHICH DO NOW EXIST,
MAY EXIST, OR HERETOFORE HAVE EXISTED WITH RESPECT TO THE RELEASED MATTERS. IN
FURTHERANCE OF SUCH INTENTION, THE RELEASE GIVEN HEREIN SHALL BE AND REMAIN IN
EFFECT AS A FULL AND COMPLETE GENERAL RELEASE OF ALL SUCH RELEASED MATTERS,
NOTWITHSTANDING THE DISCOVERY OR EXISTENCE OF ANY ADDITIONAL OR DIFFERENT CLAIMS
OR FACTS RELATIVE THERETO.
(f) The parties will execute all such further and additional
documents as shall be reasonably, convenient, necessary or desirable to carry
out the provisions of this Amendment.
(g) Each of the parties hereto acknowledge that they have
consulted with an attorney before signing this Amendment.
10. Miscellaneous.
(a) This Amendment shall be deemed to have been executed and
delivered within the State of California, and the rights and obligations of the
parties hereto
shall be construed and enforced in accordance with, and governed by, the
internal laws of the State of California.
(b) This Amendment is the entire agreement between the parties
with respect to the subject matter hereof and supersedes all prior and
contemporaneous oral and written agreements and discussions. The captions in
this Amendment are for convenience and reference only and the words contained
therein shall in no way be held to explain, modify, amplify or aid in the
interpretation, construction or meaning of the provisions of this Amendment.
This Amendment and the provisions contained herein shall not be construed or
interpreted for or against any party hereto because that party drafted or caused
that party's legal representative to draft any of its provisions. This Amendment
may be amended only by an agreement in writing signed by all of the parties
hereto.
(c) This Amendment is binding upon and shall inure to the benefit
of the parties hereto and their respective Representatives, successors in
interest and assigns.
(d) In the event of arbitration or any court proceeding relating
to this Amendment, the prevailing party shall be entitled to attorneys' fees.
(e) This Amendment may be executed in counterparts, and when each
party has signed and delivered at least one such counterpart, each counterpart
shall be deemed an original, and, when taken together with other signed
counterparts, shall constitute one agreement, which shall be binding upon and
effective as to each party.
(f) The waiver of any breach of any term or provision of this
Amendment shall be construed to be, nor shall be, a waiver of any other breach
of this Amendment. No waiver shall be binding unless in writing and signed by
the applicable parties waiving such breach.
(g) The provisions of this Amendment are severable. Should any
provision (or portion thereof) for any reason be held to be unenforceable, the
remaining provisions (or portion thereof) shall nonetheless be in full force and
effect.
(h) Except as specifically provided herein, the terms and
conditions of the Lease as amended hereby are confirmed and continue in full
force and effect.
(i) If either party commences litigation against the other for the
specific performance of this Amendment, for damages for the breach hereof or
otherwise for enforcement of any remedy hereunder, the parties hereto agree to
and hereby do waive any right to a trial by jury and, in the event of any such
commencement of litigation, the prevailing party shall be entitled to recover
from the other party such costs and actual professional fees such as appraisers
and accountants and reasonable attorneys' fees as may have been incurred,
including any and all costs and fees incurred in enforcing, perfecting and
executing such judgment.
IN WITNESS WHEREOF, this Amendment was executed as of the date first above
written.
Tenant:
SPATIALIGHT, INC.,
a New York corporation
By:_______________________________________
Print Name:________________________________
Its:_______________________________________
Landlord:
XXXXXXXX XXXXX, LLC,
a California limited liability company
By: Xxxxxx Pacific Group, Inc., a Delaware
corporation, its Authorized Signatory
By:_________________________________
Xxxxxxx X. Xxxxxx,
Managing Director