<PAGE>
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
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TABLE OF CONTENTS
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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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2
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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
</TABLE>
3
<PAGE>
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.
5030 Roosevelt Way NE Suite 300
P.O. Box 95430
Seattle, WA 98145-2430
c. TENANT: Loudeye Corp., a Delaware
corporation and Loudeye Enterprise
Communications, Inc., a Delaware corporation
d. TENANT'S ADDRESS:
1130 Rainier Ave So. Suite_200
Seattle, WA 98144
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
Suite
No. 200. The address of the Building is 1130 Rainier Ave. So.,
Seattle,
WA 98144. 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
6
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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
7
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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
inabili
