Exhibit 10.7(h)
SEVENTH AMENDMENT TO LEASE
AGREEMENT
THIS SEVENTH
AMENDMENT TO LEASE AGREEMENT is made and entered into as of the
23 rd day of July, 2004, between
RAINIER COMMONS, LLC, a Washington limited liability company
(“Lessor”), and TULLY’S COFFEE CORPORATION, a
Washington corporation (“Lessee”).
RECITALS
A. Pursuant to that certain Lease
Agreement dated August 16, 1999, entered into between Kent
Central, LLC (“KCL”) and Lessee, as modified by those
certain amendments described in the attached Exhibit B
(collectively, the “KCL Lease”), KCL agreed to lease to
Lessee certain premises as further described in the Lease (the
“Original Lease Premises”) on the real property located
at 3100 Airport Way South, Seattle, Washington, which is legally
described as set forth on the attached Exhibit A (the
“Property”). On July 17, 2003, Lessor purchased
the Property from KCL, and thereby assumed all of KCL’s
rights and obligations under Lease. Lessor and Lessee modified the
lease by the Sixth Amendment to Lease Agreement dated as of
June 26, 2003, which became effective upon the July 17,
2003 closing of the purchase of the Property from KCL (the
“Sixth Amendment”). The KCL Lease, as modified by the
Sixth Amendment, is referred to herein as the Lease. !
B. Lessor and Lessee have agreed to
make certain modifications to the Lease on the terms and conditions
set forth in this Seventh Amendment to Lease Agreement (the
“Seventh Amendment”).
AGREEMENT
NOW, THEREFORE, in consideration of
foregoing and the promises made below, and other good and valuable
consideration, the parties agree as follows:
1. Definition .
Except as otherwise stated in this
Seventh Amendment, terms which are defined in the Lease shall have
the same meanings for this Seventh Amendment.
2. Amendments .
Effective as provided herein, the
Lease is hereby amended as follows:
2.1 Cell Towers
Sublease: Under the
Option and Sublease Agreement dated as of December 21, 2001
(the “2001 Sublease”), Lessee is sub-lessor to AT&T
Wireless Services, Inc. (“AWS”) with respect to
portions of the Tully’s premises, for purposes of operation
of AWS’s communications antenna and equipment (the “AWS
Equipment”). Lessor and Lessee desire to have the AWS
Equipment relocated to a different location in the Property
(described on Exhibit E attached hereto), and AWS has agreed to
relocate the AWS Equipment at the expense of AWS, provided that a
new sub-lease agreement is executed by AWS and Lessee (terminating
the 2001 Sublease), and provided that Lessor shall give its written
consent for the new sub-lease. For purposes of this section 2.2,
“relocation” shall mean the removal of
the equipment currently comprising the AWS
Equipment and the installation of new equipment at such locations
in the Property as are agreed to by Lessor, Lessee and AWS. Lessor
and Lessee have agreed as follows:
a) Lessor and Lessee shall
reasonably cooperate with AWS in the evaluation and planning for
the relocation of the AWS Equipment.
b) Lessee shall execute a Sublease
Agreement in substantially the form attached hereto as Exhibit C
(the “New AWS Sublease”) as soon as reasonably
possible. Within five business days after the later of (1) the
date Lessee delivers the New AWS Sublease executed by Lessee and
AWS to Lessor and (2) the execution of this Seventh Amendment
by the parties hereto, Lessor shall give its written consent to the
New AWS Sublease by executing the Landlord’s Consent to
Sublease the form of which is attached hereto as Exhibit D.
Provided that the New AWS Sublease has been executed in their
respective capacities by AWS, Lessee and Lessor:
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1)
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Lessor and
Lessee shall reasonably cooperate with AWS in the relocation of the
AWS Equipment to such extent as may be provided in the New AWS
Sublease.
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2)
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Upon completion
of the relocation of the AWS Equipment as provided in the New AWS
Sublease: (i) the portion of the Tully’s Premises that
previously was used for the AWS Equipment shall be removed from the
Tully’s Premises and thereafter shall be included in the
Available Space and (ii) the portion of the Property that is
used for the AWS Equipment after the relocation as described on
Exhibit E shall be added to the Tully’s Premises.
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3)
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The
modification of the Tully’s Premises in connection with the
relocation of the AWS Equipment shall not result in any change to
the amount of Rent and Monthly Operating Expenses payable by Lessee
under the Lease.
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3. Notice .
All notices or other communications
requir