EQUIPMENT CO-LOCATION LICENSE AGREEMENT
This EQUIPMENT CO-LOCATION LICENSE AGREEMENT ("Agreement") is made as of
this -16th-day of May, 2001 by and between Horizon Holdings I LLC, a Washington
limited liability company ("Owner") and InsynQ" Inc. d/b/a InsynQ Data
Utilities, a Delaware Corporation ("Licensee") with respect to co-location of
certain of Licensee's equipment in that building commonly known as the Tacoma
Technology Center, 1441 Court A, Tacoma" Washington.
1. PROPERTY AND GRANT OF LICENSE. Owner is the Owner of real property and
improvements commonly known as the Tacoma Technology Center" 1441 Court A,
Tacoma" Washington, as legally described on Exhibit A (the "Facility"). Owner
hereby grants a license to Licensee to use certain portions of the Facility for
the purpose of locating, operating and maintaining in the Facility certain
Licensee equipment ( defined below)" on the terms and conditions herein.
2. LICENSE AREA. During the term of this Agreement" Licensee shall have the
right to use the following portions of the Facility: a minimum of -9-rack(s)
located at Rack/Position number(s) as shown on the diagram attached hereto as
Exhibit B (the "License Area"). Licensee acknowledges and agrees that Owner has
made no representations or warranties, express or implied, regarding: (i) the
physical condition of the Facility or License
Area; or (ii) the suitability of the License Area or Facility for Licensee's
desired purposes or any purpose. Licensee acknowledges and agrees that:
(i) Licensee is experienced on co-location facilities, (ii) that Licensee has
conducted" or has had ample opportunity to conduct, all necessary inspections
of the Facility and License Area, and (iii) Licensee accepts the Facility and
License Area in its existing "as is" where is and with all faults' condition.
Notwithstanding the foregoing, and to the extent available as reasonably
determined by Owner, Licensee may add additional racks to this License at an
additional fee equal to the fee (on a pro rata per rack basis) charged
hereunder for the initial racks. In such event, Licensee shall first provide
Owner" ten (10) days prior notice and Owner and Licensee shall execute and
attach to this Agreement a new Exhibit B reflecting the addition of the racks.
On twenty (20) days prior notice to Owner" and provided Licensee is not in
default of this Agreement, Licensee may terminate this License as to
any of the added racks provided, in no event shall License reduce the number of
racks to less than seven (7).
3. PERMITTED USE. The License Area and Facility shall be solely used by
Licensee for the purpose of installing, maintaining and operating (all at
Licensee's sole cost) Licensee's equipment described on Exhibit C, all at
Licensee's own risk. Licensee shall have no right to locate any equipment not
set forth on Exhibit C without Owner's prior written consent not to be
unreasonably withheld. No other use shall be allowed hereunder. The License
Area is intended for the location of Licensee's equipment only and shall not be
used by any person for office or other occupancy purposes. Licensee shall not
place any signage, logos, or graphics on or about the Facility or License Area
(except to the extent as may be required by law), and Owner agrees not to allow
any other Licensee to place any such signage on the exterior of the Building.
Licensee shall only use the License Area in a manner that does not disturb or
interfere with the use of all or any part of the Facility by other users or
licensees, or with the use of any properties adjoining the Facility. Except to
the extent otherwise expressly provided in this Agreement, the rights granted
to Licensee hereunder are intended by the parties to be personal, indivisible
and nonapportionable.
4. TERM. The term of this Agreement shall be for a period of twenty-four
(24) calendar months (the "Term") commencing on June 1, 2001 (the "Commencement
Date") and ending on May 31, 2003 (the "Expiration Date"). Provided Licensee
is not then in default of any term or condition of this Agreement, Licensee
shall have the right to extend the Term for one additional period of
twenty-four (24) calendar months (the "Extended Term"), but only if Licensee
provides Owner written notice of its intent to extend on or prior to
sixty ( 60) days from the then existing Expiration Date. All terms and
conditions of this Agreement shall apply during any such Extended Term except
for the License Fee which shall be in an amount determined by Owner and
provided to Licensee in a written notice (the "License Fee Notice") at least
thirty (30) days prior to the commencement of the Extended Term, provided,
Licensee shall have ten (10) days from the receipt of the License Fee Notice to
terminate this Agreement as of the then applicable Expiration Date. In the
event Licensee does not timely provide such notice of termination, this
Agreement shall be conclusively deemed extended at the License Fee set in the
License Fee Notice. If Owner does not provide the License Fee Notice as
described above, the License Fee during the applicable Extended Term shall be
the same as in effect during the immediately preceding term.
5. LICENSE FEES.
5.1 MONTHLY LICENSE FEE. Beginning on the Commencement Date and thereafter
throughout the Term, Licensee shall pay to Owner, in advance on the first day
of each and every calendar month without demand, deduction, offset or abatement
of any kind, a monthly license fee ("License Fee") as specified herein. Subject
to adjustment for additional racks that may be added to this License pursuant
to Section 2, the initial License Fee shall be $500.00 per month for months 1
through 12 and $550.00 per rack per month for months 13 through 24. The License
Fee is subject to adjustment as provided in Section 4 above. The License Fee
shall be prorated for any partial month.
5.2 LATE CHARGE AND INTEREST. Licensee acknowledges that if Licensee fails to
deliver to Owner the monthly License Fees, additional License Fees, or any
other amounts due hereunder when due, such failure will cause the Owner to
incur costs not contemplated in this Agreement, the exact amount of which will
be extremely difficult to ascertain. Those costs include, but are not limited
to, processing and personnel costs. Accordingly, if any payment is not received
by Owner within five (5) days of the date due, Licensee shall pay Owner a late
payment charge equal to ten percent (10%) of the overdue payment. Licensee
agrees that this late charge represents a fair and reasonable estimate of the
costs Owner will incur by reason of Licensee's late payment. Owner's acceptance
of a late charge shall in no event constitute a waiver by Owner of Licensee's
default for the overdue payment, nor prevent Owner from exercising any of the
other rights or remedies granted Owner under this Agreement" at law" or in
equity. In addition to the above described late charge, any amount due under
this Agreement and not paid to Owner when due shall bear interest at the rate
of twelve percent (12%) per annum, from the date due until fully paid. Neither
the accrual nor Licensee's payment of interest to Owner shall be deemed to cure
any default by Licensee under this Agreement.
6. [Intentionally Deleted]
7. UTILITIES AND SERVICES.
7.1 STANDARD UTILITIES. Landlord shall make available to the License Area
electricity and such other (if any) public utilities generally available to the
Facility, but Tenant shall be responsible at Licensee's cost for the
distribution of such utilities from Landlord's point of connection to the
License Area.
7.2 ELECTRICITY. Subject to Owner's right to require separate meters as
required above, Owner shall initially supply all electricity to the License
Area, and included in the monthly License Fee is a charge of approximately one
hundred dollars ($100) per rack for monthly electrical consumption. In the
event Owner reasonably determines that Licensee's electrical consumption
exceeds one hundred dollars ($100) per rack for any given month, Licensee shall
pay Owner for the excess electrical consumption within twenty (20) days of
Owner's invoice to Licensee. In no event shall Licensee be entitled to any
credit or refund of any License Fee if Licensee's electrical consumption is
less than one hundred dollars ($100) per rack a month.
7.3 SECURITY SYSTEM. Owner shall provide, and maintain pursuant to
Section 8.3, a card key security system for access to and from the Facility,
which may include palm print identification, and which will provide Licensee
seven (7) day a week, twenty four (24) hour a day access to the Facility and
License Area. Upon execution of this Agreement, Licensee shall pay to Owner the
sum of Fifty Dollars ($50) for each Facility card key provided to Licensee.
If the card key needs to be replaced for any reason, Licensee shall pay Owner
an additional Fifty Dollars ($50) for each replacement card key. Upon
expiration or earlier termination of this Agreement, Owner shall refund the
Fifty Dollar ($50) card key fee to Licensee for each card key returned to Owner
in good condition. Owner shall not be required to provide Facility access to
any person not registered with Owner's property manager, Colliers International
Management Services. Notwithstanding the above, Owner shall not be liable for
the consequence of admitting by pass key or refusing to admit to the Facility
or License Area, Licensee's agents or employees or other persons claiming the
right to admission. Furthermore, the parties acknowledge that the security
system and any other safety or security device, while intended to deter crime
may not in any given instance prevent criminal acts or insure safety. The risk
that any safety or security device, service or program may not be effective, or
may malfunction or be circumvented by a criminal is assumed by Licensee with
respect to Licensee's property, persons or interest. Licensee agrees to
cooperate in any reasonable security or safety program developed by Owner or
required by law.
7.4 ADDITIONAL SERVICES. In the event Owner has agreed, with Licensee's
consent, to provide any additional services to Licensee, such services and the
charge therefore shall only be as set forth on Exhibit D hereto, or if no
exhibit D is attached then as set forth in a separate schedule signed by
Licensee and Owner. Licensee shall pay to Owner on a monthly basis in the same
manner as License Fees (unless expressly provided otherwise) those additional
fees (if any) as set forth on Exhibit D or any separate schedule. Further, any
other charge, fee, or expense under this Agreement for which Licensee is
responsible shall be deemed an additional License fee which shall be paid by
Licensee to Owner within ten (10) days of Licensee's receipt of an invoice
unless specified otherwise in this Agreement.
7.5 INTERRUPTIONS. Owner shall use reasonable diligence to remedy an
interruption in the furnishing of such services and utilities. If, however, any
governmental authority imposes regulations, controls or other restrictions upon
Owner of the Facility which would require a change in the services provided by
Owner under this Agreement, Owner may comply with such regulations, controls or
other restrictions, including without limitation, curtailment, rationing or
restrictions on the use of electricity or any other form of energy serving
the License Area. Licensee will cooperate and do such things as are reasonably
necessary to enable Owner to comply with such regulations, controls or other
restrictions. In addition, and notwithstanding anything in this Agreement to
the contrary , Owner does not warrant that any of the services and utilities
referred to above will be free from interruption. Interruption of services
and utilities shall not be deemed an eviction or disturbance of Licensee's use
and possession of the License Area or any part thereof or render Owner liable
to Licensee for damages or loss of any kind, or relieve Licensee from
performance of all of Licensee's obligations under this Agreement. Owner shall
provide Licensee twenty-four (24) hour access to the Facility's back up
diesel generator for use only in the event all other systems fail or are
interrupted. Licensee's use of said backup generator is at Licensee's sole
risk, and Licensee shall indemnify, defend and hold Owner harmless from any and
all claims, actions, loss, injury or damage (including reasonable attorney
fees) caused by or arising from such use.
7.6 NON-STANDARD USAGE. Whenever heat generating machines or equipment, or
lighting other than Facility standard, are used in the License Area by Licensee
which affect the temperature otherwise maintained by the air cooling system,
Owner shall have the right to install supplementary air cooling units, and the
cost thereof, including the cost of installation and the cost of operation and
maintenance thereof, shall be paid by Licensee to Owner upon billing by Owner.
To the extent not separately metered and paid by Licensee, Owner may impose a
reasonable charge for utilities and services, including without limitation, air
cooling, electric current and water, required to be provided by reason of
(a) any use beyond what Owner agrees to furnish as described above,
(b) electricity used by equipment designated by Owner as high power usage
equipment or (c) the installation, maintenance, repair, replacement or
operation of supplementary air cooling equipment, additional electrical systems
or other equipment required by reason of special electrical, heating, cooling
or ventilating requirements of equipment used by Licensee. Licensee shall not
install or operate high power usage equipment in the License Area without
Licensee's prior written consent, which may be refused unless (i) Licensee
confirms in writing its obligation to pay the additional charges necessitated
by such equipment and such equipment does not adversely affect operation of the
Facility, and (ii) the Facility electrical capacity to the floor(s) containing
the License Area will not be exceeded. At Owner's option, separate meters for
such utilities and services may be installed for the License Area and Licensee
upon demand therefore, shall immediately pay Owner for the installation,
maintenance, repair and replacement of such meters.
7.7 UTILITY PROVIDERS. Notwithstanding anything to the contrary in this
Agreement, Owner shall have the sole, exclusive and absolute right to
determine, select and contract with utility company or companies that will
provide electricity and other basic utility service, including without
limitation fiber optic and satellite telecommunication services, to the
Facility and License Area. If permitted by law, Owner shall have the right at
any time, and from time to time, to either contract for services from a
different company or companies providing electricity or other basic utility
service (each such company hereinafter an," Alternate Service Provider") or
continue to contract for service (each such company hereinafter an "Alternate
Service Provider") or continue to contract for service from the service
provider(s) that is providing such utility service to the Facility or License
Area at the Commencement Date (each the "Existing Service Provider"). Licensee
shall cooperate with Owner, the Existing Service provider and any Alternate
Service Provider at all times and, as reasonably necessary, shall allow Owner,
the Existing Service Provider and any Alternate Service Provider access to the
Facility's utility lines, plumbing, feeders, risers, wiring, and any other
machinery or utility access ways within the License Area.
7.8 OWNER MAINTENANCE. Owner (at Owner's cost) shall maintain in good
condition the Facility roof, exterior walls and Facility structural components,
provided, that any damage thereto occasioned by the act of Licensee or its
employees, agents, contractors or invitees shall be paid by Licensee upon
demand by Owner.
8. COMMON AREAS.
8.1 COMMON AREA DEFINED. The term ,Common Area, as used herein shall mean the
common restroom, any parking areas and any other areas which are available for
the nonexclusive use of Owner's Licensees and their employees, and others
situated in the Facility (but excluding all License Areas).
8.2 USE. Licensee and its employees and its authorized invitees shall have
the right to use the Common Area in common with other persons during the term
of this Agreement, subject to such reasonable rules and regulations as may from
time to time be deemed necessary or advisable in Owner's sole discretion for
the proper and efficient operation and maintenance of the Common Area. Such
rules and regulations may include among other things, the hours during
which the Common Area shall be open for use.
8.3 OWNER. Owner shall manage, maintain and operate the Common Area and such
other Facility wide systems and equipment that are not specific to a particular
License Area in reasonably good order and condition, provided, that any damage
thereto occasioned by the act of Licensee or its employees, agents, contractors
or invitees shall be paid by Licensee upon demand by Owner.
9. COMPLIANCE WITH LAWS. Licensee, at Licensee's cost, shall fully comply
with all applicable laws, statutes, ordinances, rules and regulations
pertaining to the improvements constructed, used, or maintained by Licensee at
the License Area and Facility, or Licensee's use and occupancy of the License
Area and Facility. Licensee shall also comply with all reasonable rules and
regulations established from time to time by Owner for the operation of the
Facility
10. ENTRY. Owner represents and agrees that, subject to the provisions of
this Agreement, Licensee shall be entitled to reasonable access to the License
Area at all times and to the use and enjoyment of the License Area throughout
the initial Term and any Extended Term of this Agreement. Owner shall have
reasonable access to the License Area to inspect the Facility from time to
time, and to show the space to prospective Licensees, lenders and purchasers.
Owner shall not have any unsupervised access to any Licensee's equipment that
is located in any identified secured areas, except in case of an emergency. In
the event of any emergency situation that poses an immediate threat of
substantial harm or damage to persons and/or property that requires entry on
the License Area, Owner may enter the License Area and take such actions as are
required to protect individuals or personal property from such immediate threat
of substantial harm or damage; provided, that promptly after that emergency
entry onto the License Area, Owner shall give Licensee notice of such entry.
11. LICENSEE IMPROVEMENTS. ALTERATIONS AND MAINTENANCE. Licensee shall not
make any alterations or improvements to the License Area or Facility without
Owner's prior written consent which shall not be unreasonably withheld. In the
event Owner consents to any alteration or improvement, all of Licensee's
construction and installation work shall be performed at Licensee's sole cost
and expense, in a good and workmanlike manner and in conformance with all
applicable laws, ordinances, rules, and regulations. Before commencing
construction of any improvement, alteration, modification, or construction on
or about the License Area, Licensee shall first obtain Owner's written approval
of Licensee's contractor and Licensee's plans and specifications for such work,
which approval shall not be unreasonably withheld. Any improvements,
modifications, alterations, or construction by Licensee shall be constructed in
strict conformity with such approved plans and specifications. All improvements
to the License Area constructed or installed by Licensee shall remain the
personal property of Licensee. Licensee (at Licensee's sole cost and expense)
shall maintain and repair the License Area in good and safe condition and in
compliance with all applicable laws, ordinances, rules, and regulations. Owner
shall have no obligation to Licensee to maintain or repair the License Area
which shall be Licensee's responsibility. Licensee shall promptly repair any
damage to Owner's personal property or the Facility caused by Licensee's
construction or operation of the Facility or Licensee's use or occupancy of the
License Area, and Owner shall have no obligation to maintain or repair the
Facility except as expressly provided in Section 7 above. Before the expiration
of this Agreement (or promptly upon any early termination), Licensee shall
remove its equipment and all of its improvements from the License Area and
Licensee shall restore the License Area and Facility to the condition that
existed as of the date of this Agreement, except for ordinary wear and tear and
casualty damage.
12. MECHANICS' LIENS. Licensee shall not permit any mechanics',
materialmen's, or other liens to be filed against the Facility or Licensee's
interest in this Agreement. Licensee further covenants and agrees that any lien
filed against the Facility, or any interest in this Agreement, for work claimed
to have been done for, or materials claimed to have been furnished to Licensee,
will be discharged by Licensee, by bond or otherwise, within fifteen (15) days
after the filing thereof, at the sole cost and expense of Licensee. Owner shall
have the right at all reasonable times to post and keep posted on the License
Area any notices which it deems necessary for protection from such liens.
If any such liens are filed and not released within that fifteen (15) day
period, Owner may, without waiving its rights and remedies based on that breach
by Licensee, and without releasing Licensee from any of its obligations, cause
such liens to be released by any means it shall deem proper, including payment
in satisfaction of the claim giving rise to such liens. Licensee shall pay to
Owner at once, upon notice to Licensee, any sum paid by Owner to remove such
liens, together with interest at twelve percent (12%) per annum from the date
of that payment by Owner.
13. TAXES. Licensee shall pay all personal property taxes and assessments
assessed against the improvements and Licensee's other personal property on the
License Area and Facility. Owner shall be responsible for all real property
taxes and all other taxes, fees, and assessments attributable to the Property;
provided, however, that Licensee shall promptly reimburse Owner for that
portion of real property taxes and assessments for the Property that are
based on Licensee's use and occupancy of the License Area or improvements
constructed or installed in the License Area or Facility by or on behalf of
Licensee. Owner shall provide to Licensee reasonable documentation from the
taxing authority, indicating that the increase is on account of such items.
If any fees payable by Licensee to Owner under this Agreement are taxed (other
than as a component of Owner's taxable income for purposes of determining
Owner's federal, state, or local income tax), Licensee shall promptly reimburse
Owner for those taxes.
14. HAZARDOUS SUBSTANCES:
14.1 DEFINITION. F or purposes of this Agreement, the term "Hazardous
Materials" means any hazardous or toxic substance, material, or waste that is
or becomes regulated by any local, state or federal governmental authority.
Hazardous Materials include, without limitation, the following:
(i) any pollutant, oil or hazardous substance, identified or listed under
Sections 307, 311 or 502 of the Federal Water Pollution Control Act
(33 U.S.C. SS1317, SS1321 and SS1362); (ii) any element, compound, mixture,
solution or substance designated under Section 102 of the Comprehensive
Environmental Response Compensation and Liability Act ("CERCLA")
(42 U.S.C. SS9602); (iii) any substance or material having the characteristics
identified under or listed under Section 3001 of the Comprehensive Recovery
Act ("RCRA") (42 U.S.C. SS6921); (iv) any petroleum, crude oil, or any fraction
of either that is not otherwise specifically listed or designated under
items (i)-(iii).
14.2 USE. Licensee shall not cause or permit any Hazardous Materials to be
brought upon, stored, used, generated, released into the environment, or
disposed of on, under, from, or about the License Area or Facility (which shall
include, but is not limited to, subsurface soil and ground water) by Licensee,
its agents, employees, contractors, or representatives. Without limiting any
other rights or remedies of Owner under this Agreement, Licensee shall pay the
cost of any cleanup work performed on, under, or about the License Area or
Property, as required by this Agreement or any applicable laws in connection
with the removal, disposal, storage, transportation, neutralization, or other
treatment of such Hazardous Materials.
14.3 INDEMNIFICATION. To the fullest extent permitted by law, Licensee hereby
agrees to indemnify, hold harmless, protect, and defend Owner and Owner's
agents, employees, contractors and representatives from and against any and all
claims, causes of action, liabilities, losses, damages whether foreseeable or
unforeseeable, arising directly or indirectly out of the presence, use,
generation, storage, treatment, on or off-site disposal or transportation of
Hazardous Materials on, into, from, under, or about the License Area or the
Facility by Licensee or Licensee's agents, employees, contractors or
representatives, specifically including, but not limited to, the cost of any
required or necessary repair, restoration, cleanup (including, but not limited
to, the costs of investigation and removal of Hazardous Materials) or
detoxification of the License Area and/or the Facility, whether or not such
action is required or necessary during the term or after the expiration of this
Agreement. The provisions of this Section 14.3 shall survive the termination,
cancellation, or expiration of this Agreement.
15. TRANSFER.
15.1 TRANSFER BY LICENSEE. Licensee shall not in any way assign this Agreement
in whole or in part, license all or any portion of the License Area, or
otherwise transfer any right or interest hereunder, and any such attempt shall
be void and constitute default by Licensee.
15.2 TRANSFER BY OWNER. Owner shall have the right to freely assign, encumber,
sell, lease, or otherwise enter into transactions involving the Facility and to
assign Owner's rights and obligations under this Agreement. Upon any conveyance
of the Facility or License Area, and assignment by Owner of this Agreement,
Owner shall be and is hereby entirely released from all liability thereafter
arising under any and all of its covenants and obligations contained in or
derived from this Agreement, and Licensee agrees to attorn to any transferee
individual or entity purchasing or otherwise acquiring Owner's interest in the
License Area.
16. INDEMNITY. Except to the extent of Owner's negligence or willful
misconduct, and to the fullest extent permitted by law, Licensee hereby agrees
to indemnify hold harmless, protect, and defend Owner and Owner's agents,
employees, representatives and contractors from and against any and all claims,
causes of action, liabilities, losses, costs, damages, whether foreseeable or
unforeseeable, arising out of or related to any act, omission or neglect of
Licensee or Licensee's agents, employees, representatives and contractors, or
arising from or related to Licensee's use of or activities on or about the
License Area or Facility. The provisions of this Section 16 shall survive the
termination, cancellation or expiration of this Agreement. Nothing herein shall
be construed to make Licensee responsible for the negligent or other wrongful
acts of Owner.
17 INSURANCE. Licensee shall procure and maintain throughout the duration of
this Agreement: (a) "All Risk" Property Damage Insurance for the protection of
Licensee and Owner, as their interest appear, covering all of Licensee's
improvements and alterations to the License Area or Facility, Licensee's
personal property, fixtures and equipment, and other insurable risks in an
amount not less than the full replacement value of such property or interests
with coverage that also includes "Building and Personal Property," and
(b) Commercial General Liability Insurance (occurrence based) with limits of
$2,000,000 each occurrence, and in the aggregate, with coverage for death and
bodily injury , property damage or destruction (including loss of use ),
product liability , and completed operations, and personal advertising injury .
Licensee shall provide Owner a certificate of insurance evidencing the
insurance required hereunder prior to the Commencement Date. Each policy of
insurance shall be with insurers reasonably acceptable to Owner and shall
provide that cancellation will not occur without at least thirty (30) days'
prior written notice to Owner. Furthermore, each policy shall: (i) name Owner,
Owner's Lender, Owner's property manager, and any other party reasonably
designated by Owner as additional insureds, (ii) contain a cross-liability
endorsement, (iii) shall be primary, and any insurance carried by Owner shall
be noncontributing. All insurance required to be carried by Licensee under this
Agreement may be carried under a blanket policy covering the License Area and
other locations of Licensee, provided that the coverage afforded Owner by
reason of the use of the blanket policy shall not be reduced or diminished from
the requirements for the insurance set forth in this Section 17.
18. WAIVER OF SUBROGATION. Owner and Licensee each hereby waive all rights of
recovery against the other, the other's agents, employees, contractors, and
representatives on account of loss and damage occasioned to such waiving party
to the extent that that loss or damage, is actually covered (and paid) by
insurance carried by either party. Each party shall cause each insurance policy
carried by it pertaining to the License Area, or Facility to provide that the
insurance company acknowledges acceptance of the foregoing mutual waiver
(i.e., waiver of subrogation) of claims under this Section 18. Notwithstanding
the foregoing, it is agreed that if any loss is because of the act, omission,
negligence, or willful misconduct of Licensee or any of Licensee's employees,
agents, representatives, or contractors, Licensee's Commercial General
Liability insurance shall be primary and shall cover all losses and damages
before any insurance carried by Owner.
19. LIMITATION OF OWNER'S LIABILITY. Owner's liability for any claim by
Licensee hereunder shall be limited to Owner's interest in the Facility.
Furthermore, in no event shall Owner be liable to Licensee for consequential or
punitive damages and Licensee waives any right of it or its assigns or
successors to obtain consequential damages from Owner. Licensee acknowledges
that this limitation of liability and waiver of consequential or punitive
damages is a material term of this Agreement and that Owner would not enter
into this Agreement in the absence of this waiver. Nothing herein shall be
construed to limit any claims against third parties.
20. DAMAGE AND DESTRUCTION. If the License Area or other improvements located
on the Property are destroyed or damaged so as, in Licensee's reasonable
judgment, to materially and adversely impair Licensee's effective use of the
License Area and such damage cannot be reasonably repaired within sixty (60)
days, Licensee may elect to terminate this Agreement as of the date of the
damage or destruction by so notifying Owner no more than thirty (30) days
following the date of such damage or destruction. If Licensee elects to
terminate this Agreement under this Section 20, all rights and obligations of
the parties that do not survive the termination of this Agreement shall cease
as of the date Owner receives Licensee's termination notice. If the Facility is
materially and adversely damaged or destroyed, Owner shall have the right to
terminate this Agreement upon written notice to Licensee, provided that Owner
shall give such notice within twenty (20) days of the date of such damage or
destruction. If Owner elects to terminate this Agreement under this Section 20,
all rights and obligations of the parties that do not survive the termination
of this Agreement shall cease as of the date of Licensee's receipt of Owner's
termination notice. In no event shall Owner be obligated to repair any casualty
or other damage or destruction to any of Licensee's improvements, equipment or
property located in the Facility, whether or not covered by Owner's casualty
insurance, if any and Licensee shall not be entitled to any abatement of any
fee owing hereunder.
21. CONDEMNATION. If a condemning authority takes all of the Facility, or a
portion which in Licensee's reasonable opinion is sufficient to render the
License Area unsuitable for Licensee's use, then this Agreement shall terminate
as of the date when possession is delivered to the condemning authority. All
condemnation proceeds attributable to the Property, the License Area and the
value of the use and access rights created by this Agreement (including any
bonus value) shall belong solely to Owner. Sale of all or part of the Property
by Owner to a purchaser with the power of eminent domain in the face of the
exercise of its power of eminent domain, shall be treated as a taking by a
condemning authority.
22. SUBORDINATION. This Agreement shall be subject and subordinate at all
times to: (i) all ground leases or underlying leases that may now exist or
hereafter be executed affecting the Property, and (ii) the lien of any
mortgage, deed of trust or other security device that may now exist or
hereafter be executed in any amount for which the Property or any part thereof,
or Owner's interest or estate in the Property or any part thereof, is specified
as security. Owner or any such mortgagee or ground lessor shall have the right,
at its election, to subordinate or cause to be subordinated any such ground
leases or underlying leases or any such liens to this Agreement or to require
this Agreement to be subordinated to such interest. If Owner's interest in the
License Area is acquired by any ground lessor or mortgagee, or if any
proceedings are brought for the foreclosure of, or in the event of exercise of
the power of sale under, any mortgage, deed of trust or other security device
made by Owner covering the License Area or any part thereof, or in the event a
conveyance in lieu of foreclosure is made for any reason, Licensee shall,
notwithstanding any subordination and upon the request of such successor in
interest to Owner, attorn to and become the licensee of the successor in
interest to Owner and recognize such successor in interest as the Owner under
this Agreement, on the condition that such successor in interest agrees to
formally recognize in writing the use and access rights created by this
Agreement. Licensee covenants and agrees to execute and deliver, within fifteen
(15) days of Owner's request and in a commercially reasonable form, any
additional documents evidencing the priority or subordination of this Agreement
with respect to any such ground leases or underlying leases, or the lien of any
such mortgages or deeds of trust.
23. ESTOPPEL CERTIFICATES. Licensee shall, within fifteen (15) days following
written request by Owner, execute and deliver to Owner an estoppel certificate,
in a form submitted to Licensee by Owner, certifying that this Agreement is
unmodified and in full force and effect or, if this Agreement has been
modified, attaching a copy of the modification and certifying that this
Agreement, as so modified, is in full force and effect and the date to which
the rent and other charges are paid in advance, if any; acknowledging that
there are not, to Licensee's knowledge, any uncured defaults on the part of the
Owner or stating the nature of any uncured defaults; certifying the current
annual rent amount; and certifying to such other information as Owner may
reasonably request. If Licensee fails to execute and return the estoppel
certificate within such fifteen (15) day period, the facts and figures set
forth in the estoppel certificate submitted by Owner to Licensee shall be
deemed to be true and Owner or its mortgagees, lenders, or prospective
investors or purchasers shall have the right to rely on that information.
24. INTERFERENCE. Licensee shall be responsible for resolving any technical
interference problems between Licensee's equipment and other equipment located
at the Facility and, if there are other wireless telecommunications facilities
located at the Facility, Licensee shall reasonably cooperate with such other
licensees to resolve any issues of interference in an equitable fashion.
Licensee's equipment shall not disturb the communications configurations,
equipment, and frequency that exist at the Facility as of the Commencement Date
("Preexisting Communications"), and Licensee's equipment shall comply with all
non-interference rules of the Federal Communications Commission ("FCC").
Subject to preexisting rights and the provisions of this Section 24, Owner will
not knowingly permit the installation of any future equipment at the Facility
that results in unreasonable technical interference problems with Licensee's
then existing equipment. In case of such interference with Licensee's
operations, Licensee shall notify Owner in writing, and Owner shall have a
reasonable period to correct the interference. Should Owner be unsuccessful in
correcting the interference within a reasonable period after receipt of
Licensee's written notice, Owner shall be deemed to be in breach of this
Agreement; provided, however, that in such event Licensee's sole remedy, at law
or in equity, shall be to terminate this Agreement immediately upon written
notice to Owner. In no case shall the normal operation of the Facility's
standard maintenance equipment, mechanical equipment (e.g., HV AC systems),
office equipment, computer equipment, telecommunication systems and other
similar equipment, devices, and systems typically used in connection with a
co-location facility be deemed to interfere with Licensee's use of the License
Area.
25. CO-LOCATION. Licensee acknowledges that the Owner may elect to enter into
agreements with other equipment operators (including Licensee's competitors),
and that Licensee may be required to share certain common facilities with those
operators. It is the intent of the Owner to consolidate and coordinate all such
Licensee equipment at the Facility to maximize use of space and minimize the
negative effects (visual and otherwise) of equipment. Licensee acknowledges
that it has no exclusive rights for operate or locate its equipment at the
Facility and that the Owner shall have the right to enter into leases,
easements, licenses, permits, and agreements with other telecommunication,
technology or other equipment operators. Licensee agrees to reasonably
cooperate with the other users of the Facility, and the Owner, to coordinate
efficient co-location of equipment and to promptly resolve any interference
issues that may arise on account of the presence of multiple users. Licensee
shall operate within its FCC-approved frequencies (if any) and shall not
materially alter the nature of its use or transmissions, or otherwise
unreasonably interfere with the operations of any other users of the Facility.
26. REDEVELOPMENT AND RELOCATION. If the Owner, at any time desires in any
way to redevelop, demolish, modify, remodel, or alter the Facility
(collectively, "Redevelopment"), and any such proposed Redevelopment
necessitates, in Owner's reasonable judgment, the relocation of the License
Area and/or any material alterations to the License Area, then Licensee shall
relocate or make necessary alterations to the License Area, at Licensee's sole
cost and expense, to a location and/or in a manner reasonably acceptable to
Owner and Licensee, in order that Licensee shall have the continued use and
enjoyment, if reasonably practical, of the License Area. Owner shall provide
Licensee with no less than thirty (30) days' prior written notice of any
proposed Redevelopment which owner reasonably anticipates would materially and
adversely affect Licensee's use and enjoyment of the License Area. If that
relocation or Redevelopment results in Licensee's temporary inability to use
the Facility then, to the extent reasonably practicable, Owner shall allow
Licensee to place a portable facility on the property, in a location reasonably
acceptable to Owner, during the period of such interruption. If the Licensee
and Owner are unable to agree on the location or manner of relocation of the
License Area, or if that such relocation or alteration results in Licensee's
inability to use the License Area, or temporary facility, for more than
seventy-two (72) consecutive hours, then Licensee shall have the option to
terminate this Agreement effective upon twenty-four (24) hours prior
written notice to Owner.
27. DEFAULT.
27.1 LICENSEE DEFAULT. Licensee shall be deemed to be in default of this
Agreement if: (i) Licensee fails to make any payment of fees or other payment
required under this Agreement, as and when due, where the default continues for
a period of five (5) business days after written notice of nonpayment by Owner
to Licensee, provided, that Owner shall only be required to give Licensee two
(2) such written notices of nonpayment within any twelve (12) month period
after which Licensee be in default if payments of rent or other charges are not
made within five (5) business days of the date due without any further notice;
or (ii) Licensee fails to observe or perform any of the covenants, conditions
or provisions of this Agreement to be observed or performed by Licensee, where
that failure continues for a period of thirty (30) days after written notice
thereof by Owner to Licensee (provided, however, that if the nature of
Licensee's default is such that more than thirty (30) days are reasonably
required for its cure, then Licensee shall not be deemed to be in default if
Licensee commences such cure within said thirty (30) day period and thereafter
diligently prosecutes such cure to completion); or (iii) licensee commits a
default that by its nature is not curable ( each an "Event of Default").
27.2 OWNER DEFAULT. Owner shall be deemed to be in default of this Agreement
if Owner fails to comply with any of the covenants, conditions, or provisions
of this Agreement to be observed or performed by Owner, when that failure
continues for a period of twenty (20) days after written notice from Licensee
to Owner detailing such default (provided, however, that if the nature of
Owner's default is such that more than twenty (20) days are reasonably required
for its cure, then Owner shall not be deemed to be in default if Owner
commences such cure within said twenty (20) day period and thereafter
diligently prosecutes such cure to completion).
27.3 REMEDIES. If an incurable default occurs, or a default occurs that is not
cured within the grace period specified above, the nondefaulting party may
pursue any remedies available to it against the defaulting party at law or in
equity, including, but not limited to, recovery of all actual damages and the
right to immediately terminate this Agreement and recover possession of the
License Area, subject to the limitations on Owner's liability set forth in
Section 19 of this Agreement. Without limiting the foregoing, and in addition
to any other remedy, in the event of a Licensee Event of Default, Owner may:
(a) upon ten (10) days prior notice to Licensee, declare to be
immediately due and payable, without regard to any early termination
of such term on account of an Event of Default or other right to
terminate this Agreement, a sum equal to (i) all License Fees and
other charges, payments, costs and expenses due from Licensee to
Licensor and in arrears at the time of the Event of Default, plus
(ii) the License Fees reserved for the then entire unexpired balance
of the term of this Agreement (taken without regard to any early
termination of the term), plus all other charges, payments, costs and
expenses herein agreed to be paid by Licensee up to the end of such
term which shall be capable of precise determination at the time of
the Event of Default;
(b) whether or not Owner has elected to recover sum set forth in
(i) above, terminate this Agreement on at least ten (10) days' prior
notice to Licensee and, on the date specified in such notice, this
Agreement and the term hereby demised and all rights of Licensee
hereunder shall expire and terminate the Licensee shall thereupon
quit and surrender possession of the License Area to Owner in the
condition elsewhere herein required and Licensee shall remain liable
to Owner as herein provided; or
(c) upon ten (10) days prior notice to Licensee, suspend the supply
of electrical power to the License Area until the default is cured by
Licensee, and Owner shall have no liability to Licensee, and Licensee
shall have no right to an abatement of License Fees for such
suspension and Licensee hereby waives all claims for damages against
Owner resulting from such suspension of services.
28. NOTICES. All notices must be in writing and shall be deemed received and
effective on the date delivered if by personal delivery three (3) days after
deposit in the U.S. mail, certified and postage prepaid, or one business day
after deposit with a nationally recognized overnight delivery service
(e.g., FedEx), to the address set forth below or as otherwise provided by law.
Owner: Horizon Holdings I, LLC
X/x Xxxxxxxx Xxxxxxxxxxxxx Xxxx Xxxxxx Services
0000Xxxxxxxx Xxxxx Xxxx, Xxxxx X
Xxxxxx, Xxxxxxxxxx 00000
Licensee: InsynQ, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Either party shall have the right to change its address for purposes of notice
by providing the other party with at least fifteen (15) days' prior written
notice of such change of address.
29. CONFIDENTIALITY. In connection with this Agreement and Owner's access to
the License Area, Licensee may disclose to Owner certain information that is
identified in writing to Owner as being proprietary in nature regarding
Licensee's equipment specifications ("Confidential Information"). Owner shall
not disclose Confidential Information to any third party without the express
written authorization of Licensee, except: (i) as required by law, (ii) in
confidences to legal counsel, technical consultants, financing sources and/or
prospective purchasers or ground lessees, or (iii) regarding enforcement of
this Agreement.
30. FURTHER ASSURANCES. In addition to the actions specifically mentioned in
this Agreement, the parties shall each do whatever may be reasonably necessary
to accomplish the transactions contemplated in this Agreement.
31. HOLDING OVER. If Licensee continues to occupy the License Area following
the expiration or termination of this Agreement with Owner's consent, then such
holding over shall constitute a renewal of this Agreement on a month-to-month
basis, with the Monthly License Fee during the holdover period to be equal to
two hundred percent (200%) of the daily license fee rate in effect immediately
before such expiration or termination. In that event, either party shall be
entitled to terminate such holdover tenancy upon thirty (30) days' prior
written notice to the other party.
32. EFFECTIVENESS. This Agreement shall not be effective until Licensee has
delivered all of the following items to Owner: (i) a fully-executed original of
this Agreement; (ii) the security deposit and Set Up Fee; and (iii) payment of
two months' Monthly License Fee, which Owner shall apply towards the Monthly
License Fee for the first and the final full calendar month of the term of this
Agreement; and (iv) the card key fee.
33. GENERAL PAYMENT MATTERS. The License Fee and all other amounts which
Licensee is or becomes obligated to pay Owner under this Agreement or other
agreement entered in connection herewith, are sometimes herein referred to
collectively as "License Fee," and all remedies applicable to the non-payment
of License Fee shall be applicable thereto. License Fees shall be paid in good
funds and legal tender of the United States of America without prior demand,
deduction, recoupment, set-off or counterclaim, and without relief from any
valuation or appraisement laws. License Fees obligations hereunder are
independent covenants.
34. MISCELLANEOUS.
34.1 ATTORNEYS' FEES. If any action shall be instituted by Owner or Licensee
(or their respective successors) for the enforcement of any of their rights in
and under this Agreement, or if either party is involuntarily enjoined in an
action or proceeding involving the other party, the party in whose favor
judgment shall be rendered in that action shall be entitled to recover from the
other party all costs reasonably incurred by the prevailing party in the
action, including actual costs and attorneys' fees.
34.2 CAPTIONS. The captions and headings used in this Agreement are for the
purpose of convenience only and shall not be construed to limit or extend the
meaning of any part of this Agreement.
34.3 COUNTERPARTS. This Agreement may be executed in counterpart copies.
Any fully executed counterpart copy of this Agreement shall be deemed an
original for all purposes.
34.4 TIME OF THE ESSENCE. Time is of the essence for the performance of each
term, condition, and covenant of this Agreement.
34.5 SEVERABILITY. If any of the provisions contained in this Agreement shall
for any reason be held to be invalid, illegal, or unenforceable in any respect,
that invalidity, illegality or unenforceability shall not affect any other
provision of this Agreement, and this Agreement shall be construed as if that
invalid, illegal or unenforceable provision had not been contained in this
Agreement.
34.6 CHOICE OF LAW. This Agreement shall be construed and enforced in
accordance with the laws of the State of Washington. The language in all parts
of this Agreement shall in all cases be construed as a whole according to its
fair meaning and not strictly for or against either Owner or Licensee. The
venue of any action related to, or arising from, this Agreement shall be the
state or federal courts in Xxxxxx County, Washington.
34.7 NON-AGENCY. It is not the intention of Owner or Licensee to create by
this Agreement a relationship of master-servant or principal-agent, and under
no circumstance shall Licensee be considered the agent of Owner, or vice versa,
it being the sole purpose and intent of the parties to this Agreement to create
a relationship of licensor and licensee.
34.8 SUCCESSORS. The terms, covenants, conditions, and agreements contained
in this Agreement shall, subject to the provisions as to assignment and
transfer contained in this Agreement and any other provisions restricting
successors or assigns, apply to and bind the heirs, successors, legal
representatives, and assigns of the parties to this Agreement.
34.9 WAIVER. The waiver by Owner of any term, covenant, agreement, or
condition contained in this Agreement shall not be deemed to be a waiver of any
subsequent breach of the same or any other term, covenant, agreement, or
condition contained in this Agreement.
34.1O ENTIRE AGREEMENT. This Agreement is the entire agreement between the
parties, and supersedes any prior agreements, representations, negotiations, or
correspondence between the parties except as expressed in this agreement.
Except as otherwise provided in this Agreement, no subsequent change or
addition to this Agreement shall be binding unless in writing and signed by the
parties to this Agreement.
34.11 AUTHORITY. Each individual executing this Agreement on behalf of Licensee
represents and warrants that: (i) he or she is duly authorized to execute and
deliver this Agreement on behalf of such entity in accordance with its
corporate bylaws, statement of partnership, certificate of limited partnership,
or appropriate limited liability company documentation, as the case may be;
(ii) this Agreement is binding upon said entity in accordance with its terms;
and (iii) Licensee is duly organized, legally existing, and in good standing in
the State of its formation.
34.12 EXHIBITS. REFERENCES. All exhibits, attachments, amendments, riders, and
addenda attached to this Agreement are hereby incorporated into and made a part
of this Agreement. All references in this Agreement to sections, exhibits, and
provisions are made, respectively, to the sections, exhibits, and provisions of
this Agreement, unless otherwise specified.
34.13 JOINT AND SEVERAL. If Licensee is constituted of more than one person or
entity, the obligations imposed on each such person or entity shall be joint
and several.
34.14 COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be an original, but all of which together shall constitute
one and the same agreement. This Agreement is effective as of the date first
written above.
OWNER: HORIZON HOLDINGS I, LLC,
a Washington limited liability company
BY Horizon Partners
Northwest, Inc., its Manager
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Its: Manager
LICENSEE: InsynQ, Inc. d/b/a InsynQ Data Utilities, a Delaware Corporation
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Its: President CEO
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LICENSEE ACKNOWLEDGMENT
STATE OF WASHINGTON )
) ss,
COUNTY OF XXXXXX )
On this day personally appeared before me Xxxx X. Xxxxx, to me known to be
the President/CEO of Insynq, Inc., the corporation that executed the foregoing
instrument, and on oath acknowledged that such officer, being authorized to do
so, executed the foregoing instrument on behalf of the corporation therein
named as his free and voluntary act, and as the free and voluntary act of said
corporation for the uses and purposes therein set forth and pursuant to said
corporations bylaws or resolution of the Board of Directors,
GIVEN under my hand and official seal this 18th day of May 2001,
SEAL /s/ Xxxx X. Xxxxxxx.
Xxxx X. Xxxxxxx
(print notary's name)
Notary Public in and for the State of Washington
Residing at King county ;
My commission expires: 5/29/01
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EXHIBIT A
EQUIPMENT CO-LOCATION LICENSE AGREEMENT
Facility Legal Description
1441 Court "A" (Tacoma Technology Center)
Parcel # 2014020030
THE SOUTH 19 1/2 FEET OF XXX 0 XXX XXX XX XXXX 0 XXX 0, XXXXX 1402, MAP OF
NEW TACOMA, W.T., ACCORDING TO PLAT RECORDED FEBRUARY 3, 1875, IN XXXXXX
COUNTY, WASHINGTON;
EXCEPT THAT PORTION OF SAID LOT 2 CONVEYED TO THE CITY OF TACOMA FOR
"A" STREET, BY DEED RECORDED IN BOOK 91 OF DEEDS, PAGE 376.
TOGETHER WITH THAT PORTION OF JEFFERSON A VENUE L YING WESTERL Y OF SAID
PREMISES, SOUTH OF THE NORTH BOUNDARY LINE OF SAID PREMISES, EXTENDED WESTERLY,
EAST OF THE WESTERLY LINE OF BLOCK 1402 1/2 EXTENDED SOUTH AND NORTH OF THE
SOUTH LINE OF LOT 4 EXTENDED WESTERLY, V ACATED BY ORDINANCE NO.619 OF CITY OF
TACOMA.
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EXHIBIT B
EQUIPMENT CO-LOCATION LICENSE AGREEMENT
License Area Diagram
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EXHIBIT C
EQUIPMENT CO-LOCATION LICENSE AGREEMENT
License Equipment List
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