CBA Form MT-LS Multi-Tenant Lease Agreement Rev 12/99 Page 1 of 17 LEASE AGREEMENT (Multi-Tenant Form) THIS LEASE AGREEMENT (the "Lease") is entered into this 10th day of May, 2001 Between HOWE/HORIZON HOLDINGS LLC ("Landlord"), and INSYNQ INC. ...
Copyright 1999
Commercial Brokers Association
All Rights Reserved
CBA Form MT-LS
Multi-Tenant Lease Agreement
Rev 12/99
Page 1 of 17
LEASE AGREEMENT
(Multi-Tenant Form)
THIS LEASE AGREEMENT (the "Lease") is entered into this 10th day of May, 2001
Between HOWE/HORIZON HOLDINGS LLC ("Landlord"), and INSYNQ INC. ("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 7,264 rentable square feet and are outlined on the floor
plan attached as Exhibit A, located on the land legally described on attached
Exhibit B, and is commonly known AS THE THIRD AND FOURTH FLOORS OF 1101
BROADWAY PLAZA, TACOMA WA 98402 (suite number and address). The Premises do not
include, and Landlord reserves, the exterior walls and roof of the Premises,
the land beneath the Premises, the pipes and ducts, conduits, wires, fixtures,
and equipment above the suspended ceiling or structural elements of the
building in which the Premises are located (the "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."
b. Lease Commencement Date. The Lease shall commence on AUGUST 1, 2001, 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,
JULY 31, 2006 or such earlier or later date as provided in Section 3 (the
"Termination Date").
d. Base Rent. The base monthly rent shall be (check one): $ _______, or XX
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 $ 0.00 as prepaid rent, to be applied to the Rent due for the N/A
month(s) of the Lease.
f. Security Deposit. The amount of the security deposit is $ 50,000,00 CARRIED
OVER FROM LEASE DATED JANUARY 3, 2000 AND AMENDMENT NO. 1 TO LEASE AGREEMENT
DATED OCTOBER 26, 2000 PLUS $21,000.00 PAYABLE UPON EXECUTION.
g. Permitted Use. The Premises shall be used only for GENERAL OFFICE and for no
other purpose without the prior written consent of Landlord.
h. Notice and Payment Addresses:
Landlord: HOWE/HORIZON HOLDINGS LLC C/O COLLIERS REAL ESTATE MANAGEMENT
SERVICES,
4301 INDUSTRY DR E STE A. TACOMA WA 98424 FAX No. (253)926-5333
Tenant: 1101 BROADWAY PLAZA SUITE 300, TACOMA WA 98402 Fax No.:
i. Tenant's Pro Rata Share. Landlord and Tenant agree that Tenant's Pro Rata
Share is 29.65 %, based on the ratio of the agreed rentable area of the
Premises to the agreed rentable area of the Building and all other buildings on
the Property as of the date of this Lease.
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 than 3 days (30 if not filled in) following the date of such notice.
If Tenant occupies the Premises before the Commencement Date specified in
Section 1 (b) then the Commencement Date shall be the date of occupancy.
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 possession 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 filled in) 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 cancelled, 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 possession of the Premises
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Copyright 1999
Commercial Brokers Association
All Rights Reserved
CBA Form MT-LS
Multi-Tenant Lease Agreement
Rev 12/99
Page 2 of 17
LEASE AGREEMENT
(Multi-Tenant Form - Continued)
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 purpose, 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.
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 deliver to
Landlord the security deposit specified in Section 1 (f) above. 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 sum 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 the Premises to be
used 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
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Copyright 1999
Commercial Brokers Association
All Rights Reserved
CBA Form MT-LS
Multi-Tenant Lease Agreement
Rev 12/99
Page 3 of 17
LEASE AGREEMENT
(Multi-Tenant Form - Continued)
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 metered and paid
directly by 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 systems; 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 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 commissions; 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. Type of Payment: Options one and two below 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 base year 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: BASE YEAR. The base Rent paid by Tenant under this Lease
includes Tenant's Pro Rata Share of Operating Costs for
the calendar year in which the Commencement Date occurs
(the "Base Year"). As additional Rent, Tenant shall pay
to Landlord on the first day of each month commencing on
the first day of the first year after the Commencement
Date, 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 Tenant's annualized Pro Rata
Share of Operating Costs for the Base Year.
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 Tenant's annualized Pro Rate Share of Operating Costs for the
Base Year. 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
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Copyright 1999
Commercial Brokers Association
All Rights Reserved
CBA Form MT-LS
Multi-Tenant Lease Agreement
Rev 12/99
Page 4 of 17
LEASE AGREEMENT
(Multi-Tenant Form - Continued)
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 then 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
(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 difference 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, - 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 reasonably
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 requires 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
with 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 an Operating
Cost chargeable to Tenant pursuant to Section 8.
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
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Copyright 1999
Commercial Brokers Association
All Rights Reserved
CBA Form MT-LS
Multi-Tenant Lease Agreement
Rev 12/99
Page 5 of 17
LEASE AGREEMENT
(Multi-Tenant Form - Continued)
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 Cost. Tenant shall not damage any demising
wall or disturb the structural integrity of the Premises and shall promptly
repair any damage or injury 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 AND RIGHT OF ENTRY. After reasonable notice from Landlord (except in
cases of emergency, where no notice is required), Tenant shall permit Landlord
and its agents, employees and contractors to enter the Premises at all
reasonable times to make repairs, alterations, improvements or inspections.
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. 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, the 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 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 by 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 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.
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Copyright 1999
Commercial Brokers Association
All Rights Reserved
CBA Form MT-LS
Multi-Tenant Lease Agreement
Rev 12/99
Page 6 of 17
LEASE AGREEMENT
(Multi-Tenant Form - Continued)
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 its 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.
16. INSURANCE.
a. Liability Insurance. During the Lease term, Tenant shall pay for and
maintain commercial general liability insurance with broad form 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 $5,000. The insurance will be non-contributory with any liability
insurance carried by Landlord.
b. Tenants 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-V or better in Best's Insurance Guide, and which are authorized to
transact business in the State of Washington. No insurance policy shall be
cancelled or reduced in coverage and each such policy shall provide that it is
not 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.
17. 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 as a result of any act,
omission or negligence of Tenant, or Tenant's officers, contractors, licensees,
agents, servants, employees, guests, invitees, or visitors, 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, licensees, agents, servants, 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. The provisions of this
section 17 shall survive expiration or termination of this Lease.
-------------------------------------------------------------------------------
Copyright 1999
Commercial Brokers Association
All Rights Reserved
CBA Form MT-LS
Multi-Tenant Lease Agreement
Rev 12/99
Page 7 of 17
LEASE AGREEMENT
(Multi-Tenant Form - Continued)
18. 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 unreasonably 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.
19. 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 surety 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).
20. DEFAULT. The following occurrences shall each be deemed an Event of Default
by Tenant:
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 6D
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.
21. REMEDIES.
Landlord shall have the following remedies upon an Event of Default. Landlord's
rights and remedies under this Lease shall be cumulative, and none shall
exclude any other right or remedy allowed by law.
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 he Event of Default, including
without limitation Reletting Expenses described in Section 22b.
-------------------------------------------------------------------------------
Copyright 1999
Commercial Brokers Association
All Rights Reserved
CBA Form MT-LS
Multi-Tenant Lease Agreement
Rev 12/99
Page 8 of 17
LEASE AGREEMENT
(Multi-Tenant Form - Continued)
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 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 to
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, at 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.
22. 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 Premises 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.
23. 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 of Rent or other amounts due by Tenant
hereunder shall not be deemed to be a waiver of any breach by Tenant preceding
such acceptance.
24. 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 and 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.
25. 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.
-------------------------------------------------------------------------------
Copyright 1999
Commercial Brokers Association
All Rights Reserved
CBA Form MT-LS
Multi-Tenant Lease Agreement
Rev 12/99
Page 9 of 17
LEASE AGREEMENT
(Multi-Tenant Form - Continued)
26. COSTS AND ATTORNEYS' 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 losing party shall pay the prevailing party a reasonable sum
for attorneys' fees in such suit, at trial and on appeal.
27. 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 Landlord's interest in the
Premises. If Tenant shall fail to respond within ten (10) days of
receipt by Tenant of a 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.
28. 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 the 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.
29. 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.
30. 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.
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 maybe withheld at Landlord's
sole discretion.
-------------------------------------------------------------------------------
Copyright 1999
Commercial Brokers Association
All Rights Reserved
CBA Form MT-LS
Multi-Tenant Lease Agreement
Rev 12/99
Page 10 of 17
LEASE AGREEMENT
(Multi-Tenant Form - Continued)
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. The provisions of this
Section 30 shall survive expiration or termination of this Lease.
31. 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.
32. 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 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 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.
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.
33. 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
CHECK THE BOX FOR ANY OF THE FOLLOWING THAT WILL APPL Y. 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_ Rent 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
___ Rules and Regulations
_X_ Utilities Surcharge Rider
-------------------------------------------------------------------------------
Copyright 1999
Commercial Brokers Association
All Rights Reserved
CBA Form MT-LS
Multi-Tenant Lease Agreement
Rev 12/99
Page 11 of 17
LEASE AGREEMENT
(Multi-Tenant Form - Continued)
34. AGENCY DISCLOSURE. At the signing of this Lease, Landlord's Agent -
ERIC CEDERSTRAND AND ANDREA PETERSON OF CMN INC. DBA COLLIERS INTERNATIONAL.
(Insert name of Licensee and Company name as licensed)
represented Landlord and tenant - _________________________________________.
(Insert Landlord, Tenant, both Landlord and Tenant, or neither Landlord nor
Tenant
)
and Tenant's Licensee - ___________________________________________________.
(Insert name of Licensee and Company name as licensed)
represented _______________________________________________________________.
(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 Tenant and Landlord 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, If Tenant's Licensee, Landlord's Agent, or their Broker are dual
agents, Landlord and Tenant consent to Tenant's Licensee, Landlord's Agent and
their Broker being compensated based on a percentage of the rent or as
otherwise disclosed on an attached addendum. Neither Tenant's Licensee,
Landlord's Agent or their Broker are receiving compensation from more than one
party to this transaction unless otherwise disclosed on an attached addendum,
in which case Landlord and Tenant consent to such compensation. Landlord and
Tenant confirm receipt of the pamphlet entitled "The Law of Real Estate
Agency."
-------------------------------------------------------------------------------
Copyright 1999
Commercial Brokers Association
All Rights Reserved
CBA Form MT-LS
Multi-Tenant Lease Agreement
Rev 12/99
Page 12 of 17
LEASE AGREEMENT
(Multi-Tenant Form - Continued)
35. COMMISSION AGREEMENT. Landlord agrees to pay a commission to Landlord's
Broker (identified in the Agency Disclosure paragraph above) as follows:
[X] Other PER SEPARATE COMMISSION AGREEMENT DATED MAY 9. 2001.
Landlord's Broker __ shall __ shall not (shall not if not filled in) be
entitled to a commission upon the extension by Tenant of the Lease term
pursuant to any right reserved to Tenant under the Lease calculated __ as
provided above or __ as follows - (if no box is checked, as provided above).
Landlord's Broker __ shall __ shall not (shall not if not filled in) be
entitled to a commission upon any expansion of Premises pursuant to any right
reserved to Tenant under the Lease, calculated __ as provided above or __ as
follows - (if no box is checked, as provided above).
Any commission shall be earned upon occupancy of the Premises by Tenant, and
paid one-half upon execution of the Lease and one-half upon occupancy of the
Premises by Tenant. Landlord's Broker shall pay to Tenant's Broker (identified
in the Agency Disclosure paragraph above) the amount stated in a separate
agreement between them or, if there is no agreement, $ - / _______% (complete
only one) of any commission paid to Landlord's Broker, within five (5) days
after receipt by Landlord's Broker.
If any other lease or sale is entered into between Landlord and Tenant pursuant
to a right reserved to Tenant under the Lease, Landlord __ shall __ shall not
(shall not if not filled in) pay an additional commission according to any
commission agreement or, in the absence of one, according to the commission
schedule of Landlord's Broker in effect as of the execution of this Lease.
Landlord's successor shall be obligated to pay any unpaid commissions upon any
transfer of this Lease and any such transfer shall not release the transferor
from liability to pay such commissions.
36. BROKER PROVISIONS
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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.
LANDLORD: HORIZON PARTNERS NORTHWEST, TENANT:
By: /s/ Michael R. Bartlett By: /s/ John P. Gorst
Name: Michael Bartlett, President Name: John P. Gorst
Its: President CEO
Its: Co-Manager
Its: Co-Manager
-------------------------------------------------------------------------------
Copyright 1999
Commercial Brokers Association
All Rights Reserved
CBA Form MT-LS
Multi-Tenant Lease Agreement
Rev 12/99
Page 13 of 17
LEASE AGREEMENT
(Multi-Tenant Form - Continued)
STATE OF WASHINGTON )
) ss.
COUNTY OF __Pierce__ )
I certify that I know or have satisfactory evidence that MICHAEL R. BARTLETT 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 CO - MANAGER OF HORIZON PARTNERS
NORTHWESt to be the free and voluntary act of such party for the uses and
purposes mentioned in the instrument.
(Seal or stamp) DATED: MAY 10, 2001
/s/ Cammy Goins-Withell
Printed Name CAMMY GOINS -WITHELL
NOTARY PUBLIC in and for the State
of Washington, residing at KENT
My Commission expires: November13, 2003.
STATE OF WASHINGTON )
) ss.
COUNTY OF __Pierce__ )
I certify that I know or have satisfactory evidence that GEORGE 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 (CO-MANAGER OF HOWE INVESTMENT LIMITED PARTNERSHIP
to be the free and voluntary act of such party for the uses and purposes
mention in the instrument.
(Seal or stamp) DATED: MAY 10, 2001
/s/ Cammy Goins-Withell
Printed Name CAMMY GOINS -WITHELL
NOTARY PUBLIC in and for the State
of Washington, residing at KENT
My Commission expires: November13, 2003.
-------------------------------------------------------------------------------
Copyright 1999
Commercial Brokers Association
All Rights Reserved
CBA Form MT-LS
Multi-Tenant Lease Agreement
Rev 12/99
Page 14 of 17
LEASE AGREEMENT
(Multi-Tenant Form - Continued)
STATE OF WASHINGTON )
) ss.
COUNTY OF __Pierce__ )
I certify that I know or have satisfactory evidence that JOHN P.GORST 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/CEO OF INSYNQ, INC. --- to be
the free and voluntary act of such party for the uses and purposes mentioned in
the instrument.
(Seal or stamp) DATED: May 18, 2001
/s/ Anne M. Douglas
Printed Name: Anne M. Douglas
NOTARY PUBLIC in and for the state State
of Washington, residing at King County
My Commission expires: 5/29/01
-------------------------------------------------------------------------------
Copyright 1999
Commercial Brokers Association
All Rights Reserved
CBA Form MT-LS
Multi-Tenant Lease Agreement
Rev 12/99
Page 15 of 17
LEASE AGREEMENT
(Multi-Tenant Form - Continued)
EXHIBIT A
[Outline of the Premises]
-------------------------------------------------------------------------------
Copyright 1999
Commercial Brokers Association
All Rights Reserved
CBA Form MT-LS
Multi-Tenant Lease Agreement
Rev 12/99
Page 16 of 17
LEASE AGREEMENT
(Multi-Tenant Form - Continued)
EXHIBIT B
Legal Description
FORMER US BANK BUILDING
1101 Broadway a/k/a 1102 Commerce Street
Tacoma, Washington
Parcel Numbers: 2011050032,2011050050,2011050010,2011050020
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
-------------------------------------------------------------------------------
Copyright 1999
Commercial Brokers Association
All Rights Reserved
CBA Form MT-LS
Multi-Tenant Lease Agreement
Rev 12/99
Page 17 of 17
LEASE AGREEMENT
(Multi-Tenant Form - Continued)
EXHIBIT C
[Tenant Improvement Schedule]
THERE SHALL BE NO TENANT IMPROVEMENTS PROVIDED BV THE LANDLORD.
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PARKING RIDER
Tenant's right to park 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 seven (7) parking
stalls with Landlord's other tenants and their customers at the designated
parking areas for the Property at no charge during the initial lease term.
Tenant shall comply and 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.
/s/ GW /s/ JPG
Landlord's Initials Tenant's Initials
/s/ MRB
Landlord Initials Tenant's Initials
-------------------------------------------------------------------------------
OPTION TO EXTEND RIDER
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 option(s) to extend the term of this Lease for five (5)
years each. Tenant shall exercise each option by delivering written 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 base monthly rental for the Premises, which shall be established at the
current fair market rate or the previous year's rent plus four percent (4%),
whichever is greater. 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, 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 MAl 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 its own
expenses of the arbitration except that the cost of the arbitration 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.
/s/ GW /s/ JPG
Landlord's Initials Tenant's Initials
/s/ MRB
Landlord Initials Tenant's Initials
-------------------------------------------------------------------------------
Copyright 1999
Commercial Brokers Association
All Rights Reserved
CBA Form R
Rent Rider
Rev 12/99
Page 1 of
RENT RIDER
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:
Lease Year (Stated in Years or Months) Base ~~ Annual Rent Amount
YEAR 1 $19.90 PER RENTABLE SQUARE FOOT
YEARS 2 THROUGH 5 $PRIOR YEAR PLUS CPI MINIMUM 3%
CONSUMER PRICE INDEX ADJUSTMENT ON BASE MONTHLY RENT. The base monthly rent
_X_ shall __ shall not (shall not if not tilled in) be increased on the first
day of the second Lease Year and on the first day of each Lease Year thereafter
(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 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.
/s/ GW /s/ JPG
Landlord's Initials Tenant's Initials
/s/ MRB
Landlord Initials Tenant's Initials
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Utilities Surcharge Rider
Premises is served by Tacoma Public Utilities. Tacoma Public Utilities has
instituted temporary surcharges during the current energy crisis. Said
surcharges shall not be included in Base Year Operating Expense calculation and
Tenant shall be responsible to pay said surcharge as additional rent.
/s/ GW /s/ JPG
Landlord's Initials Tenant's Initials
/s/ MRB
Landlord Initials Tenant's Initials