<PAGE>
[LETTERHEAD]
EXHIBIT 10.21
LEASE AGREEMENT
(Multi-Tenant Form)
This Has Been Prepared For Submission To Your Attorney
For Review And Approval Prior To Signing
No Representation Is Made By Licensee As To Its Legal Sufficiency
Or Tax Consequences
CBA Text Disclaimer: Text deleted by licensee indicated by strike. New text
inserted by licensee indicated by small capital letters.
THIS LEASE AGREEMENT (the "Lease") is entered into this 3RD day of
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JANUARY 2000, between HOWE/HORIZON HOLDINGS, LLC ("Landlord"), and INSYNQ, INC.
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("Tenant"). Landlord and Tenant agree as follows:
1. LEASE SUMMARY
a. Leased Premises. The leased commercial real estate (the "Premises")
consist of an agreed area of 17,525 rentable square feet and are outlined
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on the floor plan attached as Exhibit A, located on the land legally
described on attached Exhibit B, and is commonly known as 1101 BROADWAY
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PLAZA, TACOMA, WA 98402. The Premises do not include, and Landlord
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reserves, the exterior walls and roof of the Premises, the land beneath the
Premises, the pipes and ducts, conduits, wires, fixtures, and "Building").
The Building, the land upon which it is situated, all other improvements
located on such land, and all common areas appurtenant to the Building are
referred to as the "Property." FOR THE FIRST FIVE MONTHS OF THE LEASE TERM,
TENANT SHALL OCCUPY FLOORS 2, 3, AND 4 WHICH CONSTITUTES 10,261 RENTABLE
SQUARE FEET, AND SHALL TAKE OCCUPANCY OF THE REMAINING LEASED PREMISES
COMMENCING JUNE 1, 2000. SEE EXHIBIT D, LANDLORD PENALTY.
b. Lease Commencement Date. The Lease shall commence on JANUARY 15, 2000,
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or such earlier or later date as provided in Section 3 (the "Commencement
Date").
c. Lease Termination Date. The Lease shall terminate at midnight on
JANUARY 14, 2010, or such earlier or later date as provided in Section 3
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(the "Termination Date").
d. Base Rent. The base monthly rent shall be (check one): [_] $ ,
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or [X] according to the Rent Rider attached hereto. Rent shall be
payable at Landlord's address shown in Section 1(h) below, or such other
place designated in writing by Landlord.
e. Prepaid Rent. Upon execution of this Lease, Tenant shall deliver to
Landlord the sum of $14,963.96 as prepaid rent, to be applied to the Rent
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due for the First month(s) of the Lease.
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f. Security Deposit. The amount of the security deposit is $153,343.75
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(EQUAL TO SIX MONTHS' RENT) IN THE FORM OF A LETTER OF CREDIT.
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g. Permitted Use. The Premises shall be used only for GENERAL OFFICE and
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for no other purpose without the prior written consent of Landlord, WHICH
CONSENT SHALL NOT BE UNREASONABLY WITHHELD.
h. Notice and Payment Addresses:
Landlord: HOWE/HORIZON HOLDINGS C/O COLLIERS REAL ESTATE MANAGEMENT
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SERVICES, 4301 INDUSTRY DR E SUITE A, TACOMA WA 98424 Fax No.: 253-926-5333
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Tenant: INSYNQ, INC., 1101 BROADWAY PLAZA, TACOMA WA 98402
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Fax No.: 253-404-3842
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i. Tenant's Pro Rata Share. Landlord and Tenant agree that Tenant's Pro
Rata Share is 74%, based on the ratio of the agreed rentable area of the
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Premises to the agreed rentable area of the Building and all other
buildings on the Property as of the date of this Lease. FOR THE FIRST FIVE
MONTHS OF THE LEASE TERM, TENANT'S PRO RATA SHARE SHALL REFLECT SPACE
OCCUPIED.
2. PREMISES. Landlord leases to Tenant, and Tenant leases from Landlord the
Premises upon the terms specified in this Lease.
3. TERM.
a. Commencement Date. The Lease shall commence on the date specified in
Section 1(b), or on such earlier or later date as may be specified by
written notice delivered by Landlord to Tenant advising Tenant that the
Premises are ready for possession and specifying the Commencement Date,
which shall not be less that 30 (30 if not completed) days following the
--
date of such notice.
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| | CBA Form MT-LS (c) Copyright 1997
| | Rev'd 6/97 Commercial Brokers Association
| | Page 24 of 20 ALL RIGHTS RESERVED
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LEASE AGREEMENT
(Multi-Tenant Form)
(CONTINUED)
If Tenant occupies the Premise before Commencement Date specified in
Section 1(b), tenant shall pay a pro rated rent on the space occupied. If
Landlord acts diligently to make the Premises available to tenant, neither
Landlord nor any agent or employee of Landlord shall be liable for any
damage or loss due to Landlord's inability or failure to deliver possess of
the Premises to Tenant as provided in this Lease. The termination Date
shall be modified upon any change in the commencement Date so that the
length of the Lease term is not changed. If Landlord does not deliver
possession of the Premises to Tenant within 60 days (60 if not completed)
after the date specified in Section 1(b), Tenant may elect to cancel this
Lease by giving written notice to Landlord within 10 days after such time
period ends. If Tenant gives such notice, the Lease shall be canceled, all
prepaid rent and security deposits shall be refunded to tenant, and neither
Landlord nor Tenant shall have any further obligations to the other. The
first "Lease Year" shall commence on the Commencement Date and shall end on
the date which is twelve (12) months from the end of the month in which the
Commencement Date occurs. Each successive Lease Year during the initial
term and any extension terms shall be twelve (12) months, commencing on the
first day following the end of the preceding Lease Year, except that the
last Lease Year shall end on the Termination Date.
b. Tenant Obligations. To the extent Tenant's tenant improvements are
not completed in time for the Tenant to occupy or take possess of the
Premises on the Commencement Date due to the failure of Tenant to fulfill
any of its obligations under this Lease, the Lease shall nevertheless
commence on the Commencement Date.
Except as specified elsewhere in this Lease, Landlord makes no
representations or warranties to Tenant regarding the Premises, including
the structural condition of the Premises and the condition of all
mechanical, electrical, and other systems on the Premises. Except for any
tenant improvements described on attached Exhibit C to be completed by
Landlord (defined therein as "Landlord's Work"), Tenant shall be
responsible for performing any work necessary to bring the Premises into
condition satisfactory to Tenant. By signing this Lease, Tenant
acknowledges that it has had adequate opportunity to investigate the
Premises, acknowledges responsibility for making any corrections,
alterations and repairs to the Premises (Other than the Landlord's Work),
and acknowledges that the time needed to complete any such items shall not
delay the Commencement Date.
Attached Exhibit C sets forth all Landlord's Work, if any, and all tenant
improvements to be completed by Tenant ("Tenant's Work"), which is to be
performed on the Premises. Responsibilities for design, payment and
performance of all such work shall be as set forth on attached Exhibit C.
If Tenant fails to notify Landlord of any defects in the Landlord's Work
within ten (10) days of delivery of possession to Tenant, Tenant shall be
deemed to have accepted the Premises in their then condition. If Tenant
discovers any major defects in the Landlord's Work during this 10-day
period that would prevent Tenant from using the Premises for its intended
purposes, Tenant shall so notify Landlord in writing and the Commencement
Date shall be delayed until after Landlord has corrected the major defects
and Tenant has had five (5) days to inspect and approve the Premises after
Landlord's correction of such defects. The Commencement Date shall not be
delayed if Tenant's inspection reveals minor defects in the Landlord's Work
that will not prevent Tenant from using the Premises for their intended
purpose. Tenant shall prepare a punch list of all minor defects and provide
the punch list to Landlord. Landlord shall promptly correct all punch list
items.
4. RENT. Tenant shall pay Landlord without demand, deduction or offset, in
lawful money of the United States, the monthly rental stated in Section
1(d) in advance on or before the first day of each month during the Lease
Term beginning on (check one): [X] the Commencement Date, or [ ] __________
(specify, but if no date specified, then on the Commencement Date), and any
other additional payments due to Landlord, including Operating Costs
(collectively the "Rent") when required under this Lease. Payments for any
partial month at the beginning or end of the Lease term shall be prorated.
If any sums payable by Tenant to Landlord under this Lease are not received
by the fifth (5th) day of each month, Tenant shall pay Landlord in addition
to the amount due, for the cost of collecting and handling such late
payment, an amount equal to the greater of $100 or five percent (5%) of the
delinquent amount. In addition, all delinquent sums payable by Tenant to
landlord and not paid within five days of the due date shall, at Landlord's
option, bear interest at the rate of twelve percent (12%) per annum, or the
highest rate of interest allowable by law, whichever is less. Interest on
all delinquent amounts shall be calculated from the original due date to
the date of payment.
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| | CBA Form MT-LS (c) Copyright 1997
| | Rev'd 6/97 Commercial Brokers Association
| | Page 34 of 20 ALL RIGHTS RESERVED
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LEASE AGREEMENT
(Multi-Tenant Form)
(CONTINUED)
Landlord's acceptance of less than the full amount of any payment due from
tenant shall not be deemed an accord and satisfaction or compromise of such
payment unless Landlord specifically consents in writing to payment of such
lesser sum as an accord and satisfaction or compromise of the amount which
Landlord claims.
5. SECURITY DEPOSIT. Upon execution of this Lease, Tenant shall delivery to
Landlord the security deposit specified in Section 1(f) above. The Security
Deposit shall be in the form of a revolving, unconditional, irrevocable
Letter of Credit in the amount of $153,343.75, equal to six months' rent.
The Letter of Credit shall be reduced over the term of the lease 10% per
annum on the anniversary date of the lease. Should the financial standing
of Insynq change and become acceptable to Landlord and Landlord's financial
institution at any time over th term of the lease, or if personal
guarantees from acceptable parties of equal strength are given, the letter
of credit may be removed, the decision of which shall not be unreasonably
withheld. Landlord may commingle the security deposit with its other funds.
If Tenant breaches any covenant or condition of this Lease, including but
not limited to the payment of Rent. Landlord may apply all or any part of
the security deposit to the payment of any us in default and any damage
suffered by Landlord as a result of Tenant's breach. In such event, Tenant
shall, within five (5) days after written demand therefor by Landlord,
deposit with Landlord the amount so applied. Any payment to Landlord from
the security deposit shall not be construed as a payment of liquidated
damages for any default. If Tenant complies with all of the covenants and
conditions of this Lease throughout the Lease term, the security deposit
shall be repaid to Tenant without interest within 30 days after the
vacation of the Premises by Tenant.
6. USES. The Premises shall be used only for the use(s) specified in Section
1(g) above ("the Permitted Use"), and for no other business or purpose
without the prior written consent of Landlord. No act shall be done on or
around the Premises that is unlawful or that will increase the existing
rate of insurance on the Premises or the Building, or cause the
cancellation of any insurance on the Premises or the Building. Tenant shall
not commit or allow to be committed any waste upon the Premises, or any
public or private nuisance. Tenant shall not do or permit anything to be
done in the Premises or on the Property which will obstruct or interfere
with the rights of other tenants or occupants of the Property, or their
customers, clients and visitors, or to injure or annoy such persons.
7. COMPLIANCE WITH LAWS. Tenant shall not cause or permit th Premises to be
sued in any way which violates any law, ordinance, or governmental
regulation or order. Landlord represents to Tenant, to the best of
Landlord's knowledge, that with the exception of any Tenant's Work, as of
the Commencement Date, the Premises comply with all applicable laws, rules,
regulations, or orders, including without limitation, the Americans With
Disabilities Act, if applicable, and Landlord shall be responsible to
promptly cure any noncompliance which existed on the Commencement Date.
Tenant shall be responsible for complying with all laws applicable to the
Premises as a result of Tenant's particular use, such as modifications
required by the Americans With Disabilities Act as a result of Tenant
opening the Premises to the public as a place of public accommodation. If
the enactment or enforcement of any law, ordinance, regulation or code
during the Lease term requires any changes to the Premises during the Lease
term, the Tenant shall perform all such changes at its expense if the
changes are required due to the nature of Tenant's activities at the
Premises, or to alterations that Tenant seeks to make to the Premises;
otherwise, Landlord shall perform all such changes at its expense.
8. OPERATING COSTS.
a. Definition. As used herein, "Operating Costs" shall mean all costs of
operating, maintaining and repairing the Premises, the Building, and the
Property, determined in accordance with generally accepted accounting
principles, and including without limitation the following: all taxes and
assessments (including but not limited to, real and personal property taxes
and assessments, local improvement district assessments and other special
purpose assessments, and taxes on rent or gross receipts); insurance
premiums paid by Landlord and (to the extent used) deductibles; water,
sewer and all other utility charges (other than utilities separately
entered and paid directly Tenant or other tenants); janitorial and all
other cleaning services; refuse and trash removal; refurbishing and
repainting; carpet replacement; air conditioning, heating, ventilation and
elevator service; pest control; lighting systems, fire detection and
security system; landscape maintenance; management (fees and/or personnel
costs); parking lot, road, sidewalk and driveway patching, resurfacing and
maintenance; snow and ice removal; amortization (in accordance with
generally accepted accounting principles) of capital improvements as
Landlord may in the future install to comply with governmental regulations
and rules or undertaken in good faith with a reasonable expectation of
reducing operating costs (the useful life of which shall
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| | CBA Form MT-LS (c) Copyright 1997
| | Rev'd 6/97 Commercial Brokers Association
| | Page 44 of 20 ALL RIGHTS RESERVED
| |
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LEASE AGREEMENT
(Multi-Tenant Form)
(CONTINUED)
be a reasonable period of time as determined by Landlord); and costs of
legal services (except those incurred directly relating to a particular
occupant of the Building); accounting services, labor, supplies, materials
and tools. Landlord and Tenant agree that if the Building is not ninety
percent (90%) occupied during any calendar year, on a monthly average, then
the Operating Costs shall be increased to reflect the Operating Costs of
the Building as though it were ninety percent (90%) occupied and Tenant's
Pro Rata Share of Operating costs shall be based upon Operating Costs as so
adjusted. Operating Costs shall not include: Landlord's income tax or
general corporate overhead, depreciation on the Building or equipment
therein; loan payments; real estate broker's commission; capital
improvements to or major repairs of the Building shell (i.e., the Building
structure, exterior walls and roof) not described in this paragraph; or any
costs regarding the operation, maintenance and repair of the Premises, the
Building, or the Property paid directly by Tenant or other tenants in the
Building. If Tenant is renting a pad separate from any other structures on
the Property for which Landlord separately furnishes the services described
in this paragraph, then the term "Operating Costs" shall not include those
costs of operating, repairing, and maintaining the enclosed mall which can
be separately allocated to the tenants of the other structures. Operating
Costs which can not be separately allocated to the tenants of other
structures may include but are not limited to: insurance premiums; taxes
and assessments; management (fees and/or personnel costs); exterior
lighting; parking lot, road, sidewalk and driveway patching, resurfacing
and maintenance; snow and ice removal; and costs of legal services and
accounting services.
b. Method of Payment: Pure Triple Net/Expense Stop Options. OPTIONS ONE
AND TWO ADDRESS THE MANNER IN WHICH OPERATING COSTS ARE PAID UNDER THIS
LEASE. TO SELECT THE PURE TRIPLE NET OPTION, CHECK OPTION 1. TO SELECT THE
EXPENSE STOP OPTION, CHECK OPTION 2.
[ ] OPTION ONE: TRIPLE NET. As additional Rent, Tenant shall pay to
Landlord on the first of each month with payment of Tenant's base Rent one-
twelfth of Tenant's Pro Rata Share of Operating Costs.
[X] OPTION TWO: EXPENSE STOP. The base Rent paid by Tenant under this
Lease includes Tenant's Pro Rata Share of Operating Costs for the year in
which the Commencement Date occurs. As additional Rent, Tenant shall pay to
Landlord on the first day of each month commencing on the first day of the
year after the year in which the Commencement Date occurs, with Tenant's
payment of base Rent, one-twelfth of the amount, if any, by which Tenant's
Pro Rata Share of Operating Costs exceeds the actual base year 2000
operating costs determined on the basis of square footage of rentable area
of the building (the "Expense Stop"). For example, if actual base year 2000
operating costs of the Building are $5.00 per square foot, Tenant would pay
as additional rent the amount by which successive year Operating Costs
exceed $5.00 per square foot, paid as set forth in section (c) fellow.
c. Method of Payment. Tenant shall pay to Landlord Operating Costs as
provided above pursuant to the following procedure:
i) Landlord shall provide to Tenant, at or before the Commencement Date,
a good faith estimate of annual Operating Costs for the calendar year in
which the Commencement Date occurs. Landlord shall also provide to Tenant,
as soon as possible following the first day of each succeeding calendar
year, a good faith estimate of Tenant's annual Pro Rata Share of Operating
Costs for the then-current year;
(ii) Each estimate of Tenant's annual Pro Rata Share of Operating Costs
determined by Landlord as described above, shall be divided into twelve
(12) equal monthly installments. If Tenant pays Operating Costs under
Option One, Tenant shall pay to Landlord such monthly installment of
Operating costs with each monthly payment of base Rent. If Tenant pays
Operating Costs under Option Two, Tenant shall pay to Landlord with each
monthly payment of base Rent the amount, if any, by which such monthly
installments of Operating Costs exceed one twelfth of the Expense Stop
multiplied by the agreed are of the Premises. In the event the estimated
amount of Tenant's Pro Rata Share of Operating Costs has not yet been
determined for any calendar year, Tenant shall pay the monthly installment
in the estimated amount determined for the preceding calendar year until
the estimate for the current calendar year has been provided to Tenant. At
such time as the estimate for the current calendar year is received, Tenant
shall than pay any shortfall or receive a credit for any surplus for the
preceding months of the current calendar year and shall, thereafter, make
the monthly installment payment in accordance with the current estimate;
and
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| | CBA Form MT-LS (c) Copyright 1997
| | Rev'd 6/97 Commercial Brokers Association
| | Page 54 of 20 ALL RIGHTS RESERVED
| |
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LEASE AGREEMENT
(Multi-Tenant Form)
(CONTINUED)
(iii) As soon as reasonably possible following the end of each calendar
year of the Lease term, Landlord shall determine and provide to Tenant a
statement (the "Operating Costs Statement") setting forth the amount of
Operating Costs actually incurred and the amount of Tenant's Pro Rata Share of
Operating Costs actually payable by Tenant with respect to such calendar year.
In the event the amount of Tenant's Pro Rata Share of Operating Costs exceeds
the sum of the monthly installments actually paid by Tenant for such calendar
year, Tenant shall pay to Landlord the difference within thirty (30) days
following receipt of the Operating Costs Statement. In the event the sum of such
installments exceeds the amount of Tenant's Pro Rata Share of Operating Costs
actually due and owing, the different shall be applied as a credit to Tenant's
future Pro Rata Share of Operating Costs payable by Tenant pursuant to this
Section.
9. UTILITIES AND SERVICES. Landlord shall provide the Premises the following
services, the cost of which shall be included in the Operating Costs: water and
electricity for the Premises seven (7) days per week, twenty-four (24) hours per
day, and heating ventilation and air conditioning from 7:30 a.m. to 6:30 p.m.
Monday through Friday, and shall provide janitorial service to the Premises and
Building five (5) nights each week, exclusive of holidays. Heating, ventilation
and air conditioning services will also be provided by Landlord to the Premises
during additional hours on reasonable notice to Landlord, at Tenant's sole cost
and expense, at an hourly rate reasonable established by Landlord from time to
time and payable by Tenant, as billed, as additional Rent.
Tenant shall furnish and pay, at Tenant's sole expense, all other utilities
(including but not limited to, telephone and cable service if available) and
other services which Tenant required with respect to the Premises, except those
to be provided by Landlord as described above. Notwithstanding the foregoing, if
Tenant's use of the Premises incurs utility service charges which are above
ordinary usage, Landlord reserves the right to require Tenant to pay a
reasonable additional charge for such usage. For example, where Tenant installs
and uses a number of electronic devices which is greater than normal, the
increased usage may result in higher electrical charges and increased charges
for cooling since overheating of rooms may result.
10. TAXES. Tenant shall pay all taxes, assessments, liens and license fees
("Taxes") levied, assessed or imposed by any authority having the direct or
indirect power to tax or assess any such liens, by reason of Tenant's use of the
Premises, and all Taxes on Tenant's personal property located on the Premises.
Landlord shall pay all Taxes with respect to the Building and the Project,
including any Taxes resulting from a reassessment of the Building or the Project
due to a change of ownership or otherwise, which shall be included in Operating
Costs.
11. COMMON AREAS.
A. Definition. The term "Common Areas" means all areas and facilities
that are provided and designated from time to time by Landlord for the general
non-exclusive use and convenience of Tenant with other tenants and which are not
leased or held for the exclusive use of a particular tenant. Common Areas may,
but do not necessarily include, hallways, entryways, stairs, elevators,
driveways, walkways, terraces, docks, loading areas, restrooms, trash
facilities, parking areas, and garages, roadways, pedestrian sidewalks,
landscaped areas, security areas and lobby or mall areas. Tenant shall comply
with reasonable rules and regulations concerning the use of the common areas
adopted by Landlord from time to time. Without advance notice to Tenant and
without any liability to Tenant, Landlord may change the size, use or nature of
any common areas, erect improvements on the Common Areas or convert any portion
of the Common Areas to the exclusive use of Landlord or selected tenants, so
long as Tenant is not thereby deprived of the substantial benefit of the
Premises. Landlord reserves the use of exterior walls and the roof, and the
right to install, maintain, use, repair and replace pipes, ducts, conduits, and
wires leading through the Premises in areas which will not materially interfere
with Tenant's use thereof.
b. Use of the Common Areas. Tenant shall have the non-exclusive right in
common wich such other tenants to whom Landlord has granted or may grant such
rights to use the Common Areas. Tenant shall abide by rules and regulations
adopted by Landlord from time to time and shall use its best efforts to cause
its employees, contractors, and invitees to comply with those rules and
regulations and not interfere with the use of Common Areas by others.
c. Maintenance of Common Areas. Landlord shall maintain the Common Areas
in good order, condition and repair. This maintenance cost shall be Operating
Cost chargeable to Tenant pursuant to Section 8.
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| | CBA Form MT-LS (c) Copyright 1997
| | Rev'd 6/97 Commercial Brokers Association
| | Page 64 of 20 ALL RIGHTS RESERVED
| |
+----+
LEASE AGREEMENT
(Multi-Tenant Form)
(CONTINUED)
12. ALTERATIONS. Tenant may make alterations, additions, or improvements to
the Premises, including any Tenant's Work identified on attached Exhibit C
("Alterations"), with the prior written consent of Landlord. The term
"Alterations" shall not include the installation of shelves, movable
partitions, Tenant's equipment, and trade fixtures which may be performed
without damaging existing improvements or the structural integrity of the
Premises, and Landlord's consent shall not be required for Tenant's
installation of those items. Tenant shall complete all Alterations at
Tenant's expense in compliance with all applicable laws and in accordance
with plans and specifications approved by landlord, using contractors
approved by Landlord, and in a manner so as to not unreasonably interfere
with other tenants. Landlord shall be deemed the owner of all Alterations
except for those which Landlord requires to be removed at the end of the
Lease term. Tenant shall remove all Alterations at the end of the Lease
term unless Landlord conditioned its consent upon Tenant leaving a
specified alteration at the Premises, in which case Tenant shall not remove
such Alteration. Tenant shall immediately repair any damage to the Premises
caused by removal of Alterations.
13. REPAIRS AND MAINTENANCE. Tenant shall, at its sole expense, maintain the
Premises in good condition and promptly make all repairs and replacements,
whether structural or non-structural, necessary to keep the Premises safe
and in good condition, including all utilities and other systems serving
the Premises. Landlord shall maintain and repair the Building structure,
foundation, exterior walls, and roof, and the Common Areas, the cost of
which shall be included as an Operating Costs. Tenant shall not damage any
demising wall or disturb the structural integrity of the Premises and shall
promptly repair any damage or injure done to any such demising walls or
structural elements caused by Tenant or its employees, agents, contractors,
or invitees. If Tenant fails to maintain or repair the Premises, Landlord
may enter the Premises and perform such repair or maintenance on behalf of
Tenant. In such case, Tenant shall be obligated to pay to Landlord
immediately upon receipt of demand for payment, as additional Rent, all
costs incurred by Landlord. Notwithstanding anything in this Section to the
contrary, Tenant shall not be responsible for any repairs to the Premises
made necessary by the acts of Landlord or its agents, employees,
contractors or invitees therein.
Upon expiration of the Lease term, whether by lapse of time or otherwise,
Tenant shall promptly and peacefully surrender the Premises, together with
all keys, to Landlord in as good condition as when received by Tenant from
Landlord or as thereafter improved, reasonable wear and tear and insured
casualty excepted.
14. ACCESS. After reasonable notice from Landlord (except in cases of
emergency, where no notice is required), Tenant shall permit Landlord and
its agents and employees to enter the Premises at all reasonable times for
the purposes of repair or inspection. This Section shall not impose any
repair or other obligation upon Landlord not expressly stated elsewhere in
this Lease. After reasonable notice to Tenant, Landlord shall have the
right to enter the Premises for the purpose of showing the Premises to
prospective purchasers or lenders at any time, and to prospective tenants
within 180 days prior to the expiration or sooner termination of the Lease
term.
15. SIGNAGE. Tenant shall obtain Landlord's written consent before installing
any signs upon the Premises. Tenant shall install any approved signage at
Tenant's sole expense and in compliance with all applicable laws. Tenant
shall not damage or deface the Premises in installing or removing signage
and shall repair any injury or damage to the Premises caused by such
installation or removal.
16. DESTRUCTION OR CONDEMNATION.
a. Damage and Repair. If the Premises or the portion of the Property
necessary for Tenant's occupancy are partially damaged but not rendered
untenantable, by fire or other insured casualty, then Landlord shall
diligently restore the Premises and the portion of the Property necessary
for Tenant's occupancy and this Lease shall not terminate; provided,
however, Tenant may terminate the Lease if Landlord is unable to restore
the Premises within six (6) months of the casualty event. The Premises or
the portion of the Property necessary for Tenant's occupancy shall not be
deemed untenantable if less than twenty-five percent (25)%) of each of
those areas are damaged. Notwithstanding the foregoing, Landlord shall have
no obligation to restore the Premises or the portion of the Property
necessary for Tenant's occupancy if insurance proceeds are not available to
pay the entire cost of such restoration. If insurance proceeds are
available to Landlord but are not sufficient to pay the entire cost of
restoration, then Landlord may elect to terminate this Lease and keep the
insurance proceeds, by notifying Tenant within sixty (60) days of the date
of such casualty.
If the Premises, portion of the Property necessary for Tenant's occupancy,
or 50% or more of the rentable area of the Property are entirely destroyed,
or partially damaged and rendered untenantable, by fire or other
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| | CBA Form MT-LS (c) Copyright 1997
| | Rev'd 6/97 Commercial Brokers Association
| | Page 74 of 20 ALL RIGHTS RESERVED
| |
+----+
LEASE AGREEMENT
(Multi-Tenant Form)
(CONTINUED)
casualty, Landlord may, at its option: (a) terminate this Lease as provided
herein, or (b) restore the Premises and the portion of the Property
necessary for Tenant's occupancy to their previous condition; provided,
however, if such casualty event occurs during the last 6 months of the
Lease term (after considering any option to extend the term timely
exercised by Tenant) then either Tenant or Landlord may elect to terminate
the Lease. If, within 60 days after receipt by Landlord from tenant of
written notice that Tenant deems the Premises or the portion of the
Property necessary for Tenant's occupancy untenantable, Landlord fails to
notify Tenant of its election to restore those areas, or if Landlord is
unable to restore those areas within six (6) months of the date of the
casualty event, then Tenant may elect to terminate the Lease.
If Landlord restores the Premises or the Property under this Section 16(a),
Landlord shall proceed with reasonable diligence to complete the work, and
the base Rent shall be abated in the same proportion as the untenantable
portion of the Premises bears to the whole Premises, provided that there
shall be a rent abatement only if the damage or destruction of the Premises
or the Property did not result from, or was not contributed to directly or
indirectly by the act, fault or neglect of Tenant, or Tenant's officers,
contractors, licensees, agents, servants, employees, guests, invitees or
visitors. Provided, Landlord complies with its obligations under this
Section, no damages, compensation or claim shall be payable to Landlord for
inconvenience, loss of business or annoyance directly, incidentally or
consequentially arising from any repair or restoration of any portion of
the Premises or the Property. Landlord will not carry insurance of any kind
for the protection of Tenant or any improvements paid for by Tenant or as
provided in Exhibit C or on Tenant's furniture or on any fixtures,
equipment, improvements paid for by Tenant or as provided in Exhibit C or
on Tenant's furniture or on any fixtures, equipment, improvements or
appurtenances of Tenant under this Lease, and Landlord shall not be
obligated to repair any damage thereto or replace the same unless the
damage is caused by Landlord's negligence.
b. Condemnation. If the Premises, the portion of the Property necessary
for Tenant's occupancy, or 50% or more of the rentable area of the Property
are made untenantable by eminent domain, or conveyed under a threat of
condemnation, this Lease shall terminate at the option of either Landlord
or Tenant as of the earlier of the date title vests in the condemning
authority or the condemning authority first has possession of the Premises
or the portion of the Property and all Rents and other payments shall be
paid to that date. In case of taking of a part of the Premises or the
portion of the Property necessary for Tenant's occupancy that does not
render those areas untenantable, then this Lease shall continue in full
force and effect and the base Rent shall be equitably reduced based on the
proportion by which the floor area of any structures is reduced, such
reduction in Rent to be effective as of the earlier of the date the
condemning authority first has possession of such portion or title vests in
the condemning authority. The Premises or the portion of the Property
necessary for Tenant's occupancy shall not be deemed untenantable if less
than twenty-five percent (25%) of each of those areas are condemned.
Landlord shall be entitled to the entire award from the condemning
authority attributable to the value of the Premises or the Property and
Tenant shall make no claim for the value of is leasehold. Tenant shall be
permitted to make a separate claim against the condemning authority for
moving expenses or damages resulting from interruption in its business,
provided that in no event shall Tenant's claim reduce Landlord's award.
17. INSURANCE.
a. Liability Insurance. During the Lease term, Tenant shall pay for and
maintain commercial general liability insurance with broad and property
damage and contractual liability endorsements. This policy shall name
Landlord as an additional insured, and shall insure Tenant's activities and
those of Tenant's employees, officers, contractors, licensees, agents,
servants, employees, guests, invitees or visitors with respect to the
Premises against loss, damage or liability for personal injury or death or
loss or damage to property with a combined single limit of not less than
$1,000,000, and a deductible of not more than $5,500. The insurance will be
noncontributory with any liability insurance carried by Landlord.
b. Tenant's Insurance. During the Lease term, Tenant shall pay for and
maintain replacement cost fire and extended coverage insurance, with
vandalism and malicious mischief, sprinkler leakage and earthquake
endorsements, in an amount sufficient to cover not less than 100% of the
full replacement cost, as the same may exist from time to time, of all of
Tenant's personal property, fixtures, equipment and tenant improvements.
c. Miscellaneous. Insurance required under this Section shall be with
companies rated A-XV or better in Best's Insurance Guide, and which are
authorized to transact business in the State of Washington. No insurance
policy shall be canceled or reduced in coverage and each such policy shall
provide that it is not
<PAGE>
LEASE AGREEMENT
(Multi-Tenant Form)
(CONTINUED)
subject to cancellation or a reduction in coverage except after thirty (30)
days' prior written notice to Landlord. Tenant shall deliver to Landlord
upon commencement of the Lease and from time to time thereafter, copies or
certificates of the insurance policies required by this Section. In no event
shall the limit of such policies be considered as limiting the liability of
Tenant under this Lease.
d. Landlord Insurance. Landlord shall carry standard form extended coverage
fire insurance of the building shell and core in the amount of their full
replacement value, and such other insurance of such types and amounts as
Landlord, in its discretion, shall deem reasonably appropriate. The cost of
any such insurance may be included in the Operating Costs by a "blanket
policy" insuring other parties and/or locations in addition to the Building,
in which case the portion of the premiums therefor allocable to the Building
and Project shall be included in the Operating Costs. In addition to the
foregoing, in the event Tenant fails to provide or keep in force any of the
insurance as required above, Landlord, in its discretion, may provide such
insurance, in which event, the cost thereof shall be payable by Tenant to
Landlord as additional rent on the first day of the calendar month
immediately following demand therefor from Landlord.
e. Waiver of Subrogation. Landlord and Tenant hereby release each other and
any other tenant, their agents or employees, from responsibility for, and
waive their entire claim of recovery for any loss or damage arising from any
cause covered by insurance required to be carried by each of them. Each
party shall provide notice to the insurance carrier or carriers of this
mutual waiver of subrogation, and shall cause its respective insurance
carriers to waive all rights of subrogation against the other. This waiver
shall not apply to the extent of the deductible amounts to any such policies
or to the extent of liabilities exceeding the limits of such policies.
18. INDEMNIFICATION. Tenant shall defend, indemnify, and hold Landlord
harmless against all liabilities, damages, costs, and expenses, including
attorneys' fees, arising from any negligent or wrongful act or omission of
Tenant or Tenant's officers, contractors, licensees, agents, servants,
employees, guests, invitees, or visitors on or around the Premises or
arising from any breach of this Lease by Tenant. Tenant shall use legal
counsel acceptable to Landlord in defense of any action within Tenant's
defense obligation. Landlord shall defend indemnify and hold Tenant harmless
against all liabilities, damages, costs, and expenses, including attorneys'
fees, arising from any negligent or wrongful act or omission of Landlord or
Landlord's officers, contractors, licenses, agents, servant, employees,
guests, invitees, or visitors on or around the Premises or arising from any
breach of this Lease by Landlord. Landlord shall use legal counsel
acceptable to Tenant in defense of any action within Landlord's defense
obligation.
19. ASSIGNMENT AND SUBLETTING. Tenant shall not assign, sublet, mortgage,
encumber or otherwise transfer any interest in this Lease (collectively
referred to as a "Transfer") or any part of the Premises, without first
obtaining Landlord's written consent, which shall not be unreasonable
withheld or delayed. No Transfer shall relieve Tenant of any liability under
this Lease notwithstanding Landlord's consent to such transfer. Consent to
any Transfer shall not operate as a waiver of the necessity for Landlord's
consent to any subsequent Transfer.
If Tenant is a partnership, limited liability company, corporation, or other
entity, any transfer of this Lease by merger, consolidation, redemption or
liquidation, or any change(s) in the ownership of, or power to vote, which
singularly or collectively represents a majority of the beneficial interest
in Tenant, shall constitute a Transfer under this Section.
As a condition to Landlord's approval, if given, any potential assignee or
sublessee otherwise approved by Landlord shall assume all obligations of
Tenant under this Lease and shall be jointly and severally liable with
Tenant and any guarantor, if required, for the payment of Rent and
performance of all terms of this Lease. In connection with any Transfer,
Tenant shall provide Landlord with copies of all assignments, subleases and
assumption instruments.
20. LIENS. Tenant shall keep the Premises free from any liens created by or
through Tenant. Tenant shall indemnify and hold Landlord harmless from
liability from any such liens including, without limitation, liens arising
from any Alterations. If a lien is filed against the Premises by any person
claiming by, through or under Tenant. Tenant shall, upon request of
Landlord, at Tenant's expense, immediately furnish to Landlord a bond in
form and amount and issued by a surely satisfactory to Landlord,
indemnifying Landlord and the Premises against all liabilities, costs and
expenses, including attorneys' fees, which Landlord could reasonably incur
as a result of such lien(s).
21. DEFAULT. The following occurrences shall each be deemed an Event of
Default by Tenant:
<PAGE>
LEASE AGREEMENT
(Multi-Tenant Form)
(CONTINUED)
a. Failure To Pay. Tenant fails to pay any sum, including Rent, due under
this Lease following five (5) days written notice from Landlord of the
failure to pay.
b. Vacation/Abandonment. Tenant vacates the Premises (defined as an absence
for at least 15 consecutive days without prior notice to Landlord), or
Tenant abandons the Premises (defined as an absence of five (5) days or more
while Tenant is in breach of some other term of this Lease). Tenant's
vacation or abandonment of the Premises shall not be subject to any notice
or right to cure.
c. Insolvency. Tenant becomes insolvent, voluntarily or involuntarily
bankrupt, or a receiver, assignee or other liquidating officer is appointed
for Tenant's business provided that in the event of any involuntary
bankruptcy or other insolvency proceeding, the existence of such proceeding
shall constitute an Event of Default only if such proceeding is not
dismissed or vacated within 60 days after its institution or commencement.
d. Levy or Execution. Tenant's interest in this Lease or the Premises, or
any part thereof, is taken by execution or other process of law directed
against Tenant, or is taken upon or subjected to any attachment by any
creditor of Tenant, if such attachment is not discharged within 15 days
after being levied.
e. Other Non-Monetary Defaults. Tenant breaches any agreement, term or
covenant of this Lease other than one requiring the payment of money and not
otherwise enumerated in this Section, and the breach continues for a period
of 30 days after notice by Landlord to Tenant of the breach.
f. Failure to Take Possession. Tenant fails to take possession of the
Premises on the Commencement Date.
22. REMEDIES.
a. Termination of Lease. Landlord may terminate Tenant's interest under the
Lease, but no act by Landlord other than written notice from Landlord to
Tenant of termination shall terminate this Lease. The Lease shall terminate
on the date specified in the notice of termination. Upon termination of this
Lease, Tenant will remain liable to Landlord for damages in an amount equal
to the rent and other sums that would have been owing by Tenant under this
Lease for the balance of the Lease term, less the net proceeds, if any, of
any reletting of the Premises by Landlord subsequent to the termination,
after deducting all Landlord's Reletting Expenses (as defined below).
Landlord shall be entitled to either collect damages from Tenant monthly on
the days on which rent or other amounts would have been payable under the
Lease, or alternatively, Landlord may accelerate Tenant's obligations under
the Lease and recover from Tenant: (i) unpaid rent which had been earned at
the time of termination; (ii) the amount by which the unpaid rent which
would have been earned after termination until the time of award exceeds the
amount of rent loss that Tenant proves could reasonably have been avoided;
(iii) the amount by which the unpaid rent for the balance of the term of the
Lease after the time of award exceeds the amount of rent loss that Tenant
proves could reasonably be avoided; and (iv) any other amount necessary to
compensate Landlord for all the detriment proximately caused by Tenant's
failure to perform its obligations under the Lease, or which in the ordinary
course would be likely to result from the Event of Default, including
without limitation Reletting Expenses described in Section 22b.
b. Re-Entry and Reletting. Landlord may continue this Lease in full force
and effect, and without demand or notice, re-enter and take possession of
the Premises or any part thereof, expel the Tenant from the Premises and
anyone claiming through or under the Tenant, and remove the personal
property of either. Landlord may relet the Premises, or any part of them, in
Landlord's or Tenant's name for the account of Tenant, for such period of
time and at such other terms and conditions, as Landlord, in its discretion,
may determine. Landlord may collect and receive the rents for the Premises.
Re-entry or taking possession of the Premises by Landlord under this Section
shall not be construed as an election on Landlord's part to terminate this
Lease, unless a written notice of termination is given to Tenant. Landlord
reserves the right following any re-entry or reletting, or both, under this
Section to exercise its right to terminate the Lease. During the Event of
Default, Tenant will pay Landlord the rent and other sums which would be
payable under this Lease if repossession had not occurred, plus the net
proceeds, if any, after reletting the Premises, after deducting Landlord's
Reletting Expenses. "Reletting Expenses" is defined to include all expenses
incurred by Landlord in connection with reletting the
<PAGE>
LEASE AGREEMENT
(Multi-Tenant Form)
(CONTINUED)
Premises, including without limitation, all repossession costs, brokerage
commissions, attorneys' fees, remodeling and repair costs, costs for
removing and storing Tenant's property and equipment, and rent concessions
granted by Landlord to any new Tenant, prorated over the life of the new
lease.
c. Waiver of Redemption Rights. Tenant, for itself, and on behalf of any and
all persons claiming through or under Tenant, including creditors of all
kinds, hereby waives and surrenders all rights and privileges which they may
have under any present or future law, to redeem the Premises or to have a
continuance of this Lease for the Lease term, as it may have been extended.
d. Nonpayment of Additional Rent. All costs which Tenant agrees to pay
Landlord pursuant to this Lease shall in the event of nonpayment be treated
as if they were payments of Rent, and Landlord shall have all the rights
herein provided for in case of nonpayment of Rent.
e. Failure to Remove Property. If Tenant fails to remove any of its property
from the Premises at Landlord's request following an uncured Event of
Default, Landlord may, at its option, remove and store the property at
Tenant's expense and risk. If Tenant does not pay the storage cost within
five (5) days of Landlord's request, Landlord may, as its option, have any
or all of such property sold at public or private sale (and Landlord may
become a purchaser at such sale), in such manner as Landlord deems proper,
without notice to Tenant. Landlord shall apply the proceeds of such sale:
(i) to the expense of such sale, including reasonable attorneys' fees
actually incurred; (ii) to the payment of the costs or charges for storing
such property; (iii) to the payment of any other sums of money which may
then be or thereafter become due Landlord from Tenant under any of the terms
hereof; and (iv) the balance, if any, to Tenant. Nothing in this Section
shall limit Landlord's right to sell Tenant's personal property as
permitted by law to foreclose Landlord's lien for unpaid rent.
23. MORTGAGE SUBORDINATION AND ATTORNMENT. This Lease shall automatically be
subordinate to any mortgage or deed of trust created by Landlord which is
now existing or hereafter placed upon the Premises including any advances,
interest, modifications, renewals, replacements or extensions ("Landlord's
Mortgage"), provided the holder of any Landlord's Mortgage or any person(s)
acquiring the Premises at any sale or other proceeding under any such
Landlord's Mortgage shall elect to continue this Lease in full force and
effect. Tenant shall attorn to the holder of any Landlord's Mortgage or any
person(s) acquiring the Premises at any sale or other proceeding under any
Landlord's Mortgage provided such person(s) assume the obligations of
Landlord under this Lease. Tenant shall promptly and in no event later than
fifteen (15) days execute, acknowledge and deliver documents which the
holder of any Landlord's Mortgage may reasonably require as further evidence
of this subordination and attornment. Notwithstanding the foregoing,
Tenant's obligations under this Section are conditioned on the holder of
each of Landlord's Mortgage and each person acquiring the Permises at any
sale or other proceeding under any such Landlord's Mortgage not disturbing
Tenant's occupancy and other rights under this Lease, so long as no uncured
Event of Default exists.
24. NON-WAIVER. Landlord's waiver of any breach of any term contained in this
Lease shall not be deemed to be a waiver of the same term for subsequent
acts of Tenant. The acceptance by Landlord or Rent or other amounts due by
Tenant hereunder shall not be deemed to be a waiver of any breach by Tenant
preceding such acceptance.
25. HOLDOVER. If Tenant shall, without the written consent of Landlord, hold
over after the expiration or termination of the Term, such tenancy shall be
deemed to be on a month-to-month basis any may be terminated according to
Washington law. During such tenancy, Tenant agrees to pay to Landlord 125%
the rate of rental last payable under this Lease, unless a different rate is
agreed upon by Landlord. All other terms of the Lease shall remain in
effect.
26. NOTICES. All notices under this Lease shall be in writing and effective (i)
when delivered in person, (ii) three (3) days after being sent by registered
or certified mail to Landlord or Tenant, as the case may be, at the Notice
Addresses set forth in Section 1(h); or (iii) upon confirmed transmission by
facsimile to such persons at the facsimile numbers set forth in Section 1(h)
or such other addresses/facsimile numbers as may from time to time be
designated by such parties in writing.
27. COSTS AND ATTORNEY'S FEES. If Tenant or Landlord engage the services of an
attorney to collect monies due or to bring any action for any relief against
the other, declaratory or otherwise, arising out of this Lease, including
any suit by Landlord for the recovery of Rent or other payments, or
possession of the Premises, the
<PAGE>
LEASE AGREEMENT
(Multi-Tenant Form)
(CONTINUED)
losing party shall pay the prevailing party a reasonable sum for attorneys'
fees in such suit, at trial and on appeal.
28. ESTOPPEL CERTIFICATES. Tenant shall, from time to time, upon written request
of Landlord, execute, acknowledge and deliver to Landlord or its designee a
written statement specifying the following, subject to any modifications
necessary to make such statements true and complete: (i) the date the Lease
term commenced and the date it expires; (ii) the amount of minimum monthly
Rent and the date to which such Rent has been paid; (iii) that this Lease is
in full force and effect and has not been assigned, modified, supplemented
or amended in any way; (iv) that this Lease represents the entire agreement
between the parties; (v) that all conditions under this Lease to be
performed by Landlord have been satisfied; (vi) that there are no existing
claims, defenses or offsets which the Tenant has against the enforcement of
this Lease by Landlord; (vii) that no Rent has been paid more than one
month in advance; and (viii) that no security has been deposited with
Landlord (or, if so, the amount thereof). Any such statement delivered
pursuant to this Section may be relied upon by a prospective purchaser of
Landlord's interest or assignee of any mortgage or new mortgagee of written
request by Landlord as herein provided, Tenant shall be deemed to have given
such certificate as above provided without modification and shall be deemed
to have admitted the accuracy of any information supplied by Landlord to a
prospective purchaser or mortgagee.
29. TRANSFER OF LANDLORD'S INTEREST. This Lease shall be assignable by Landlord
without the consent of Tenant. In the event of any transfer or transfers of
Landlord's interest in the Premises, other than a transfer for security
purposes only, upon the assumption of this Lease by he transferee, Landlord
shall be automatically relieved of obligations and liabilities accruing from
and after the date of such transfer, except for any retained security
deposit or prepaid rent, and Tenant shall attorn to the transferee.
30. RIGHT TO PERFORM. If Tenant shall fail to timely pay any sum or perform any
other act on its part to be performed hereunder, Landlord may make any such
payment or perform any such other act on Tenant's part to be made or
performed as provided in this Lease. Tenant shall, on demand, reimburse
Landlord for its expenses incurred in making such payment or performance.
Landlord shall (in addition to any other right or remedy of Landlord
provided by law) have the same rights and remedies in the event of the
nonpayment of sums due under this Section as in the case of default by
Tenant in the payment of Rent.
31. HAZARDOUS MATERIAL. Landlord represents and warrants to Tenant that, to the
best of Landlord's knowledge, there is no "Hazardous Material" (as defined
below) on, in, or under the Premises as of the Commencement Date except as
otherwise disclosed to Tenant in writing before the execution of this Lease.
If there is any Hazardous Material on, in, or under the Premises as of the
Commencement Date which has been or thereafter becomes unlawfully released
through no fault of Tenant, then Landlord shall indemnify, defend and hold
Tenant harmless from any and all claims, judgments, damages, penalties,
fines, costs, liabilities or losses including without limitation sums paid
in settlement of claims, attorneys' fees, consultant fees and expert fees,
incurred or suffered by Tenant either during or after the Lease term as the
result of such contamination.
Tenant shall not cause or permit any Hazardous Material to be brought upon,
kept, or used in or about, or disposed of on the Premises by Tenant, its
agents, employees, contractors or invitees, except in strict compliance with
all applicable federal, state and local laws, regulations, codes and
ordinances. If Tenant breaches the obligations stated in the preceding
sentence, then Tenant shall indemnify, defend and hold Landlord harmless
from any and all claims, judgments, damages, penalties, fines, costs,
liabilities or losses including, without limitation, diminution in the value
of the Premises, damages for the loss or restriction on use of rentable or
usable space or of any amenity of the Premises, or elsewhere, damages
arising from any adverse impact on marketing of space at the Premises, and
sums paid in settlement of claims, attorneys' fees, consultant fees and
expert fees incurred or suffered by Landlord either during or after the
Lease term. These indemnifications by Landlord and Tenant include, without
limitation, costs incurred in connection with any investigation of site
conditions or any clean-up, remedial, removal or restoration work, whether
or not required by any federal, state or local governmental agency or
political subdivision, because of Hazardous Material present in the
Premises, or in soil or ground water on or under the Premises. Tenant shall
immediately notify Landlord of any inquiry, investigation or notice that
Tenant may receive from any third party regarding the actual or suspected
presence of Hazardous Material on the Premises.
<PAGE>
LEASE AGREEMENT
(Multi-Tenant Form)
(CONTINUED)
Without limiting the foregoing, if the presence of any Hazardous Material
brought upon, kept or used in or about the Premises by Tenant, its agents,
employees, contractors or invitees, results in any unlawful release of
Hazardous Materials on the Premises or any other property, Tenant shall
promptly take all actions, at its sole expense, as are necessary to return
the Premises or any other property, to the condition existing prior to the
release of any such Hazardous Material, provided that Landlord's approval of
such actions shall first be obtained, which approval may be withheld at
Landlord's sole discretion.
As used herein, the term "Hazardous Material" means any hazardous,
dangerous, toxic or harmful substance, material or waste including
biomedical waste which is or becomes regulated by any local governmental
authority, the State of Washington or the United States Government, due to
its potential harm to the health, safety or welfare of humans or the
environment.
32. QUIET ENJOYMENT. So long as Tenant pays the Rent and performs all of its
obligations in this Lease, Tenant's possession of the Premises will not be
disturbed by Landlord or anyone claiming by, through or under Landlord, or
by the holders of any Landlord's Mortgage or any successor thereto.
33. RIGHT OF ENTRY. Landlord and its agents, employees and contractors shall
have the right to enter the Premises at reasonable times for inspection, to
make repairs, alterations, and improvements, to show the Premises to
prospective purchasers and, within six (6) months prior to the expiration of
the Lease term, to show the Premises to prospective tenants.
34. GENERAL.
a. Heirs and Assigns. This Lease shall apply to and be binding upon Landlord
and Tenant and their respective heirs, executors, administrators, successors
and assigns.
b. Brokers' Fees. Tenant represents and warrants to Landlord that it has not
engaged any broker, finder or other person who would be entitled to any
commission or fees for the negotiation, execution, or delivery of this Lease
other than as disclosed in Section 1(i) or elsewhere in this Lease. Tenant
shall indemnify and hold Landlord harmless against any loss, cost, liability
or expense incurred by Landlord as a result of any claim asserted by any
such broker, finder or other person on the basis of any arrangements or
agreements made or alleged to have been made by or on behalf of Tenant. This
subparagraph shall not apply to brokers with whom Landlord has an express
written brokerage agreement.
c. Entire Agreement. This Lease contains all of the covenants and agreements
between Landlord and Tenant relating to the Premises. No prior or
contemporaneous agreements or understanding pertaining to the Lease shall be
valid or of any force or effect and the covenants and agreements of this
Lease shall not be altered, modified or added to except in writing signed by
Landlord and Tenant.
d. Severability. Any provision of this Lease which shall prove to be
invalid, void or illegal shall in no way affect, impair or invalidate any
other provision of this Lease.
e. Force Majeure. Time periods for either party's performance under any
provisions of this Lease (excluding payment of Rent) shall be extended for
periods of time during which the party's performance is prevented due to
circumstances beyond such party's control, including without limitation,
fires, floods, earthquakes, lockouts, strikes, embargoes, governmental
regulations, acts of God, public enemy, war or other strife.
f. Governing Law. This Lease shall be governed by and construed in
accordance with the laws of the State of Washington.
g. Memorandum of Lease. Except for the pages containing the Broker
Provisions and Commission Agreement, the parties signatures and attached
Exhibits A and B, this Lease shall not be recorded. However, Landlord and
Tenant shall, at the other's request, execute and record a memorandum of
Lease in recordable form that identifies Landlord and Tenant, the
commencement and expiration dates of the Lease, and the legal description of
the Premises as set forth on attached Exhibit B.
h. Submission of Lease Form Not an Offer. One party's submission of this
Lease to the other for review shall not constitute an offer to lease the
Premises. This Lease shall not become effective and binding upon Landlord
and Tenant until it has been fully signed by both Landlord and Tenant.
<PAGE>
LEASE AGREEMENT
(Multi-Tenant Form)
(CONTINUED)
i. No Light, Air or View Easement. Tenant has not been granted an easement
or other right for light, air or view to or from the Premises. Any
diminution or shutting off of light, air or view by any structure which may
be erected on or adjacent to the Building shall in no way effect this Lease
or the obligations of Tenant hereunder or impose any liability on Landlord.
j. Authority of Parties. Any individual signing this Lease on behalf of an
entity represents and warrants to the other that such individual has
authority to do so and, upon such individual's execution, that this Lease
shall be binding upon and enforceable against the party on behalf of whom
such individual is signing.
35. Exhibits and Riders. The following exhibits and riders are made a part of
this Lease:
Exhibit A Floor Plan Outline of the Premises
Exhibit B Legal Description
Exhibit C Tenant Improvement Schedule
Exhibit D Landlord Penalty
CHECK THE BOX FOR ANY OF THE FOLLOWING THAT WILL APPLY. ANY RIDERS CHECKED
SHALL BE EFFECTIVE ONLY UPON BEING INITIALED BY THE PARTIES AND ATTACHED TO
THE LEASE. CAPITALIZED TERMS USED IN THE RIDERS SHALL HAVE THE MEANING GIVEN
TO THEM IN THE LEASE.
[x] Rental Rider
[ ] Retail Use Rider
[ ] Arbitration Rider
[ ] Limitation on Landlord's Liability Rider
[ ] Guaranty of Tenant's Lease Obligations Rider
[x] Parking Rider
[x] Option to Extend Rider
36. AGENCY DISCLOSURE. At the signing of this Agreement,
Landlord's Agent ERIC CEDERSTRAND AND ANDREA PETERSON OF CMN INC. DBA
----------------------------------------------------
COLLIERS INTERNATIONAL
----------------------
(insert names of Licenses and the Company name as licensed)
represented LANDLORD
----------------------------------------------------------------
(insert Landlord, Tenant, both Landlord and Tenant or neither
Landlord nor Tenant)
and Tenant's Broker (Licensee) ERIC CEDERSTRAND AND ANDREA PETERSON OF
---------------------------------------------
CMN INC. DBA COLLIERS INTERNATIONAL
----------------------------------------------------------------------------
(insert names of Licensee and the Company name as licensed)
represented TENANT
----------------------------------------------------------------
(insert Landlord, Tenant, both Landlord and Tenant or neither
Landlord nor Tenant)
If Tenant's Licensee and Landlord's Agent are different salespersons
affiliated with the same Broker, then both Buyer and Seller confirm their
consent to that Broker acting as a dual agent. If Tenant's Licensee and
Landlord's Agent are the same salesperson representing both parties, then
both Landlord and Tenant confirm their consent to that salesperson and
his/her Broker acting as dual agents. Landlord and Tenant confirm receipt of
the pamphlet entitled "The Law of Real Estate Agency."
<PAGE>
LEASE AGREEMENT
(Multi-Tenant Form)
(CONTINUED)
37. BROKER PROVISIONS AND COMMISSION AGREEMENT.
Landlord shall pay a commission to CMN INC. DBA COLLIERS INTERNATIONAL
-----------------------------------
("Landlord's Broker") in the amount stated in a separate listing agreement
or, if there is no listing agreement, then (check one):
[_] $______ /______% (complete only one) of the gross rent payable
pursuant to Section 1(d) or TO BE NEGOTIATED
[_] $______ per square foot of the Premises. The commission shall be
earned upon occupancy of the Premises by Tenant, and paid one-half upon
execution of this Lease and one-half upon occupancy of the Premises by
Tenant. Landlord's Agent shall pay to __________ ("Tenant's Broker") the
amount stated in a separate agreement between them or, if there is no
agreement, $______ /______% (complete only one) of the commission paid to
Landlord's Agent, within five (5) days after receipt by Landlord's Agent.
The Premises, described in the attached Exhibits A and B are commercial
real estate.
<PAGE>
LEASE AGREEMENT
(Multi-Tenant Form)
(CONTINUED)
LANDLORD'S AGENT AND TENANT'S LICENSEE HAVE MADE NO REPRESENTATIONS OR
WARRANTIES CONCERNING THE PREMISES, THE MEANING OF THE TERMS AND CONDITIONS OF
THIS LEASE, LANDLORD'S OR TENANT'S FINANCIAL STANDING, ZONING, COMPLIANCE OF THE
PREMISES WITH APPLICABLE LAWS, SERVICE OR CAPACITY OF UTILITIES, OPERATING
EXPENSES, OR HAZARDOUS MATERIALS. LANDLORD AND TENANT ARE EACH ADVISED TO SEEK
INDEPENDENT LEGAL ADVICE ON THESE AND OTHER MATTERS ARISING UNDER THIS LEASE.
IN WITNESS WHEREOF this Lease has been executed the date and year first above
written.
HOWE/HORIZON HOLDINGS LLC INSYNQ INC.
------------------------------------- ---------------------------------------
LANDLORD: TENANT:
/s/ Michael R. Bartlett /s/ M. Carroll Benton
------------------------------------- ---------------------------------------
LANDLORD: MICHAEL R. BARTLETT, M. CARROLL BENTON, SEC. TREAS.
PRESIDENT OF HORIZON PARTNERS INSYNQ, INC.
NORTHWEST
ITS: CO-MANAGER TENANT:
DATE: 1-20-00
-------------------------------
/s/ George Howe /s/ M. Carroll Benton
------------------------------------- ---------------------------------------
BY: GEORGE HOWE, GENERAL PARTNER OF M. CARROLL BENTON, SEC. TREAS.
HOWE INVESTMENT LIMITED PARTNERSHIP INSYNQ, INC.
ITS: CO-MANAGER
DATE: Jan 20, 2000
-------------------------------
<PAGE>
LEASE AGREEMENT
(Multi-Tenant Form)
(CONTINUED)
STATE OF WASHINGTON
}
} ss.
COUNTY OF Peirce }
-------------
I certify that I know or have satisfactory evidence that Carroll Benton
______________
is the person who appeared before me and said person acknowledged that
she signed this instrument, on oath stated that she was authorized to
--- ---
execute the instrument and acknowledged it as the Secretary-Treasurer
-------------------
of INSYNQ Inc. to be the free and voluntary act of such party for the uses
-----------
and purposes mentioned in the instrument.
DATED: 1-20, 2000
--------
Tomi Lou Smith
(Seal or stamp) _______________________________________
Printed Name: Tomi Lou Smith
-------------------------
NOTARY PUBLIC in and for the State
of Washington, residing at Greg Harbor
------------
My Commission expires: 2-1-00
________________
STATE OF WASHINGTON
}
} ss.
COUNTY OF Peirce }
-------------
I certify that I know or have satisfactory evidence that Michael R. Barlett
__________________
is the person who appeared before me and said person acknowledged that he
--
signed this instrument, on oath stated that he was authorized to execute the
--
instrument and acknowledged it as the President of Horizon Partners Northwest
--------- --------------------------
to be the free and voluntary act of such party for the uses and purposes
mentioned in the instrument.
DATED: 1-20, 2000
--------
Pauline Zeitler
(Seal or stamp) _______________________________________
Printed Name: Pauline Zeitler
-------------------------
NOTARY PUBLIC in and for the State
of Washington, residing at Puyallup
------------
My Commission expires: 2-9-03
________________
<PAGE>
LEASE AGREEMENT
(Multi-Tenant Form)
(CONTINUED)
STATE OF WASHINGTON
}
} ss.
COUNTY OF Peirce }
-------------
I certify that I know or have satisfactory evidence that George G. Howe
______________
is the person who appeared before me and said person acknowledged that
he signed this instrument, on oath stated that he was authorized to
-- --
execute the instrument and acknowledged it as the General Partner
---------------
of Howe Investment to be the free and voluntary act of such party for the uses
---------------
and purposes mentioned in the instrument.
DATED: 1-20, 2000
--------
Pauline Zeitler
(Seal or stamp) _______________________________________
Printed Name: Pauline Zeitler
-------------------------
NOTARY PUBLIC in and for the State
of Washington, residing at Puyallup
------------
My Commission expires: 2-19-03
________________
STATE OF WASHINGTON
}
} ss.
COUNTY OF }
-------------
I certify that I know or have satisfactory evidence that
------------------------
is the person who appeared before me and said person acknowledged that
_____________________________ signed this instrument, on oath stated
that was authorized to execute the instrument
______________________________
and acknowledged it as the
-----------------------------------------
of to be the free and voluntary act of
----------------------------------- such party for the uses and purposes
mentioned in the instrument.
DATED: , 19
-------- ---.
(Seal or stamp) _______________________________________
Printed Name:
-------------------------
NOTARY PUBLIC in and for the State
of Washington, residing at
------------
My Commission expires:
________________
<PAGE>
LEASE AGREEMENT
(Multi-Tenant Form)
(CONTINUED)
EXHIBIT A
[Outline of the Premises]
<PAGE>
LEASE AGREEMENT
(Multi-Tenant Form)
(CONTINUED)
EXHIBIT A
[Outline of the Premises]
[DIAGRAM]
<PAGE>
LEASE AGREEMENT
(Multi-Tenant Form)
(CONTINUED)
EXHIBIT B
[Legal Description]
<PAGE>
LEASE AGREEMENT
(Multi-Tenant Form)
(CONTINUED)
EXHIBIT B
[Legal Description]
LOTS 1 TO 5, INCLUSIVE, IN BLOCK 1105 OF MAP OF NEW TACOMA, WASHINGTON
TERRITORY, FILED FOR RECORD FEBRUARY 3, 1875 IN THE OFFICE OF THE COUNTY
AUDITOR, IN TACOMA, PIERCE COUNTY, WASHINGTON.
SITUATE IN THE COUNTY OF PIERCE, STATE OF WASHINGTON.
<PAGE>
LEASE AGREEMENT
(Multi-Tenant Form)
(CONTINUED)
EXHIBIT C
[Tenant Improvement Schedule]
LANDLORD'S IMPROVEMENTS
-----------------------
SECOND FLOOR: LANDLORD SHALL CONSTRUCT TWO NEW OFFICES WILL FULL HEIGHT WALLS
WITH TRANSOMS AND VERTICAL GRAIN OAK DOORS; CONSTRUCT 7'0" HIGH WALLS TO DEFINE
RECEPTION AREA AND PROVIDE HALLWAY TO ELEVATOR LOBBY; PROVIDE NEW CARPET
THROUGHOUT SECOND FLOOR AND SLATE TILE AT TENANT'S DIRECTION IN RECEPTION
HALLWAY AND ELEVATOR CORE; REMOVE EXISTING SUSPENDED CEILING AND INSTALL NEW
PREMIUM GRADE ACOUSTIC CEILING AND LIGHTING; PROVIDE NEW WINDOW COVERINGS;
INSTALL NEW HANDLES ON DOORS; STAIN AND FINISH WOODWORK; AND INSTALL TOILET AND
SINK AND TILE FLOOR TO CREATE PRIVATE BATH ADJACENT TO OFFICE #3 (SEE PLAN); AND
STAIN EXISTING WOODWORK.
THIRD FLOOR: LANDLORD SHALL SHAMPOO CARPETS; INSTALL NEW WINDOW COVERINGS; PAINT
WALLS THROUGHOUT; AND REPAIR, REPLACE OR PAINT CEILINGS AS NEEDED, AS REASONABLY
DETERMINED BY LANDLORD AND TENANT.
FOURTH FLOOR: LANDLORD SHALL INSTALL NEW FLOOR-TO-CEILING WALLS TO SEGREGATE
ROUTE TO BOARD ROOM; INSTALL NEW CARPET IN ELEVATOR LOBBY, ROUTE TO BOARD ROOM
AND BOARD ROOM AND OFFICE; INSTALL NEW FLOORING IN LUNCH ROOM; PAINT WALLS
THROUGHOUT LUNCH ROOM; PROVIDE NEW WINDOW COVERINGS IN LUNCH ROOM; PROVIDE NEW
APPLIANCES IN LUNCH ROOM AS NEEDED; AND STAIN EXISTING WOODWORK IN BOARD ROOM.
REPLACE EXISTING CHALK BOARD WITH WHITE BOARD IN BOARD ROOM.
FIFTH & SIXTH FLOORS: LANDLORD SHALL PROVIDE TENANT WITH A $50,000 TENANT
IMPROVEMENT ALLOWANCE FOR THE FIFTH AND SIXTH FLOORS.
COMMON AREAS: LANDLORD SHALL PROVIDE MAJOR MAINTENANCE TO HVAC SYSTEM; PROVIDE
NEW DOOR HARDWARE AS NEEDED; PROVIDE CARD KEY ACCESS SYSTEM IN ELEVATORS ALONG
WITH 60 CARDS; UPDATE ELEVATOR INTERIOR AND CEILING FINISHES; AND PROVIDE
ELEVATOR LOBBY DOORS, TENANT'S MAIN ENTRY DOOR AND DOOR TO SECOND FLOOR ELEVATOR
LOBBY. IF TENANT SO ELECTS, AT THE TIME TENANT TAKES OCCUPANCY OF THE FIFTH AND
SIXTH FLOORS, LANDLORD SHALL REMOVE ELEVATOR VESTIBULE DOORS ON THE SECOND FLOOR
IF NO CODE ISSUES EXIST AT THAT TIME THAT WOULD PREVENT THEIR REMOVAL.
NOTE: LANDLORD SHALL PROVIDE WINDOW COVERINGS THROUGHOUT ENTIRE LEASED SPACE.
<PAGE>
[FLOOR PLAN]
<PAGE>
LEASE AGREEMENT
(Multi-Tenant Form)
(CONTINUED)
EXHIBIT D
LANDLORD PENALTY
1. FOR THE FIRST SIX MONTHS OF THE LEASE TERM, TENANT SHALL OCCUPY FLOORS 2, 3,
AND 4, WHICH CONSTITUTES 10,261 RENTABLE SQUARE FEE, AND SHALL TAKE
OCCUPANCY OF THE REMAINING LEASED PREMISES (FLOORS 5 AND 6 WHICH CONSTITUTE
AN ADDITIONAL 7,264 SQUARE FEET) COMMENCING JUNE 1,2000.
2. IF AFTER JUNE 15, 2000, FLOORS 5 AND 6 ARE NOT READY FOR TENANT IMPROVEMENTS
AND OCCUPANCY, THEN LANDLORD WILL AGREE TO PAY THE FOLLOWING PENALTY TO
TENANT:
JUNE 15-30, 2000....................25% RENT REDUCTION ON OCCUPIED SPACE
JULY 1-31, 2000.....................50% RENT REDUCTION ON OCCUPIED SPACE
AUGUST 1-31, 2000...................75% RENT REDUCTION ON OCCUPIED SPACE
SEPTEMBER 1-30, 2000................100% RENT ABATEMENT UNTIL TENANT TAKES
POSSESSION OF LEASED PREMISES
<PAGE>
RENT RIDER
CBA Text Disclaimer: Text deleted by licensee indicated by strike.
New text inserted by licensee indicated by small capital letters.
Landlord and Tenant should complete only those provisions below which apply. Any
provision below which is not completed shall not apply to the Lease.
1. BASE MONTHLY RENT SCHEDULE. Tenant shall pay Landlord base monthly rent
during the Lease Term according to the following schedule - WHICH
INCORPORATES A MINIMUM 2%- MAXIMUM 6% ANNUAL CPI INCREASE:
<TABLE>
<S> <C>
Lease Year (Stated in Years or Months Base Monthly Rent Amount
Year 1------ $17.50 per square foot per year, Gross ------
----------------------------------------- ---------------------------------------------
Year 2-10------- $PRIOR YEAR + CPI AS OUTLINED BELOW------
----------------------------------------- ---------------------------------------------
______ $_______
______ $_______
______ $_______
</TABLE>
2. CONSUMER PRICE INDEX ADJUSTMENT ON BASE MONTHLY RENT. The base monthly rent
shall be increased on the first day of (if not completed, this paragraph
does not apply) SECOND(*)------Lease Year (except the Commencement Date and
------
the first day of any extension term) in accordance with the increase in the
United States Department of Labor, Bureau of Labor Statistics, Consumer
Price Index for All Urban Consumers (all items for the geographical
Statistical Area in which the Premises is located on the basis of 1982-1984
equals 100) (the "Index"). The base monthly rent payable immediately prior
to each adjustment date shall be increased by the percentage that the Index
published for the date nearest preceding the adjustment date has increased
over the Index published for the date nearest preceding the first day of the
Lease Year from which the adjustment is being measured. Upon the calculation
of each annual increase, Landlord shall notify Tenant of the new base
monthly rent payable hereunder. Within twenty (20) days of the date of
Landlord's notice, Tenant shall pay the deficiency in any Rent paid for a
period following the subject adjustment date and shall thereafter pay the
increased Rent until receiving the next notice of increase from Landlord. If
the components of the Index are materially changed after the Commencement
Date, or if the Index is discontinued during the Lease Term, Landlord shall
notify Tenant of a substitute published index which, in Landlord's
reasonable discretion, approximates the index and use the substitute index
to make subsequent adjustments.
*CPI SHALL BE NOT LESS THEN 2% PER YEAR WITH A 6% MAXIMUM. CPI SHALL BE BASED ON
THE SEATTLE METROPOLITAN AREA.
MRB CB
---------------------- -----------------------
Landlord's Initials: Tenant's Initials:
GA CB
---------------------- -----------------------
Landlord's Initials: Tenant's Initials:
<PAGE>
PARKING RIDER
CBA Text Disclaimer: Text deleted by licensee indicated by strike.
New text inserted by licensee indicated by small capital letters.
Tenant's right to part on the Property shall be as follows (check one):
[ ] Tenant shall be entitled to use parking stalls in the Building or other
designated parking area on a (check one) [ ] reserved [ ] unreserved
(unreserved, if not completed) basis at the prevailing monthly rate as
established by Landlord from time to time. Tenant shall comply with the
reasonable rules and regulations which Landlord or its garage operator may
adopt from time to time for the safe and orderly operation of the parking
areas.
[X] Tenant and its customers shall be entitled to share Ten (10) parking stalls
with Landlord's other tenants and their customers at the designated parking
areas for the Property at no charge. Tenant shall comply and shall be
responsible for the compliance of its customers with the terms of the Lease
and any riders and any reasonable rules and regulations adopted by Landlord
from time to time for the safe and orderly sharing of parking.
MRB CB
----------------------------- -----------------------------
Landlord's Initials: Tenant's Initials:
GA CB
----------------------------- -----------------------------
Landlord's Initials: Tenant's Initials:
<PAGE>
OPTION TO EXTEND RIDER
CBA Text Disclaimer: Text deleted by licensee indicated by strike.
New text inserted by licensee indicated by small capital letters.
Provided Tenant is not in default at the time of exercise or upon the
commencement of any extension term, Tenant shall have (if not completed, zero)
One (1) successive options to extend the term of this Lease for Five (5) years
--- --- ---- ---
each. Tenant shall exercise each option by delivering with notice to Landlord
not less than one hundred eighty (180) days prior to the expiration of the then
current Lease term. Upon the exercise of any option, the term of this Lease
shall be extended for the period of the subject option upon all of the same
terms, conditions and covenants as set forth herein, except for the amount of
the base monthly rental stated in the Lease, which shall be increased or
decreased to the amount of fair market rental for the Premises. If Landlord and
Tenant are not able to agree on the amount of fair market rental within thirty
(30) days after the date Tenant exercises its extension option in each case,
then the parties shall submit the determination of the fair market rental value
of the Premises to binding arbitration. If Landlord and Tenant are not able to
agree upon a single arbitrator within thirty (30) days of their agreement to
arbitrate the dispute, then during the following ten (10) day period, Landlord
and Tenant shall each designate an expert, who shall be a licensed MIA appraiser
or a commercial real estate agent with at least five (5) years experience in the
commercial leasing market in which the Premises are located. The two experts so
selected shall appoint an arbitrator similarly qualified, whose determination of
fair market rental value shall be binding upon Landlord and Tenant. Each party
shall bear their own expenses of the arbitration except that the cost of the
arbitrator shall be paid by the party whose final offer of fair market rent
during the thirty (30) day negotiation period is farthest from the amount
determined by the arbitrator.
MRB CB
----------------------------- -----------------------------
Landlord's Initials: Tenant's Initials:
GA CB
----------------------------- -----------------------------
Landlord's Initials: Tenant's Initials:
