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EXHIBIT 10.28
US BANK BUILDING
LEASE
THIS LEASE dated this 15th day of November, 1996, is between WEST RIVERSIDE
INVESTORS, a general partnership (the Owner) and NATIOINAL SECURITIES. a
Washington corporation (the Tenant).
1. PREMISES. Owner leases to Tenant and Tenant leases from Owner the
space (the Premises), known as Suite 1300, consisting of approximately 4.583
useable square feet (as per Floor Plan attached as Exhibit A) of the US Bank
Building located at West 000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000.
The Premises are located on the following property (the Property):
Lot Six (6) and the West forty (40') feet of Lot Seven (7) in Block
Sixteen (16) of RESURVEY AND ADDITION TO SPOKANE FALLS (now Spokane),
all situate in the City of Spokane, County of Spokane, State of
Washington.
2. TERM. The term of this Lease shall be SIX- (6) years and ZERO (0)
months, commencing DECEMBER l, 19 96, and ending DECEMBER 31, 20 02 (the Term).
Acceptance by Owner of rent for a period after the end of the Term shall not
extend the Term, but shall evidence a month-to-month tenancy.
3. RENT. [Tenant agrees to pay Owner for the Premises in advance on the
first day of each calendar month of the Term, a minimum monthly rental of
___________ DOLLARS ($________) for the term of the Lease, together with any
adjustments as provided for below.]
Owner may, in its sole discretion, elect to increase the monthly rental
payable hereunder, subject to the percentage limitation set forth below. In
the event Owner so elects to increase the monthly rental payable hereunder,
Owner shall notify Tenant in writing of the adjusted rental to apply. Said
notice shall be given not less than thirty (30) days in advance of the calendar
month for which the new rental shall become effective. Said rental adjustment
shall be limited to not more than one (1) increase within any twelve (12) month
interval. The first rental adjustment shall not occur prior to ______________.
Each monthly rental adjustment as called for above shall be limited to
a maximum increase per each adjustment of (___%) ____ percent per month of the
minimum monthly rental for the month prior to adjustment. In no event shall
the monthly rental payable hereunder be decreased.
THE RENTAL SCHEDULE SHALL BE AS FOLLOWS:
MONTH 1 $0
MONTHS 2-13 $5,347.00/PER MONTH
MONTHS 14-25 $5,633.00/PER MONTH
MONTHS 26-37 $5,920.00/PER MONTH
MONTHS 38-49 $6,206.00/PER MONTH
MONTHS 50-61 $6,493.00/PER MONTH
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MONTHS 62-73 $6.779.00/PER MONTH
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The rental shall be paid at the office of the Owner's agent, Kiemle &
Xxxxxx Company, West 000 Xxxx Xxxxxx, Xxxxxxx. Xxxxxxxxxx 00000, or at such
other place as Owner may from time-to-time designate in writing.
Tenant acknowledges that late payment by Tenant to Owner of the fixed
minimum rent will cause Owner to incur costs not contemplated by this Lease,
the exact amount of such costs being extremely difficult and impracticable to
fix. Such costs include, without limitation, processing and accounting
charges, and late charges that may be imposed on Owner by the terms of any
encumbrance and note secured by any encumbrance covering the leased Premises.
Therefore, if any installment of rent due from Tenant is not received by Owner
by the 10TH day of each and every month, Tenant shall pay to Owner an
additional sum of FIVE PERCENT (5%) of the overdue minimum as a surcharge. The
parties agree that this surcharge represents a fair and reasonable estimate of
the costs that Owner will incur by reason of late payment by Tenant.
Acceptance of any surcharge shall not constitute a waiver of Tenant's default
with respect to the overdue amount, or prevent Owner from exercising any of the
other rights and remedies available to Owner.
4. BUSINESS PURPOSE. [The Premises are to be used for conducting therein
a SECURITIES SALES and for no other business or purpose without the prior
written consent of the Owner.]
TENANT SHALL USE AND OCCUPY THE PREMISES FOR TENANT'S AND TENANT'S
PERMITTED OCCUPANTS' EXECUTIVE, ADMINISTRATIVE, ACCOUNTING, PURCHASING, SALES
AND GENERAL OFFICES AND FOR ANY OTHER LAWFUL OFFICE USE INCIDENTAL TO THE
PRINCIPAL USE OF THE PREMISES AS A SECURITIES BROKER-DEALER AND FOR NO OTHER
PURPOSE.
5. ASSIGNMENT. Tenant may not assign this Lease nor sublet the Premises
nor any part thereof without the prior written approval of Owner. If Owner
should once approve an assignment or subletting, Owner shall not be barred from
thereafter refusing to consent to any further assignment or to subletting.
Owner shall not unreasonably withhold consent to assignment or to subletting.
NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS XXXXXXXXX XX. 0 XXXXX XX
CONSTRUED TO PROHIBIT TENANT FROM LICENSING SPACE IN THE PREMISES TO SECURITIES
BROKERS FOR THE CONDUCT OF TENANT'S BUSINESS.
6. SERVICES AND UTILITIES. As long as Tenant is not in default hereunder,
Owner shall furnish customary janitor service, electricity for lighting and
operation of [low power usage office machines] OFFICE MACHINES CUSTOMARILY USED
IN THE OPERATION OF A BROKER-DEALER, heat, normal office air conditioning and
elevator service, when they are reasonably necessary during the ordinary
business hours of the building. Owner shall not be liable for any loss or damage
caused or resulting from such services or utilities or any variation,
interruption or failure thereof due to any cause whatsoever. No temporary
interruption or failure of any such service or utility incident to the making of
repairs, alterations, or improvements, UNLESS SUCH INTERRUPTION OR FAILURE SHALL
CONTINUE FOR LONGER THAN SEVEN (7) DAYS AND IS THE PRODUCT OF OWNER'S
NEGLIGENCE, or due to accident or strike or other condition reasonably beyond
Owner's control shall be deemed as an eviction of Tenant or relieve Tenant from
any of its obligations hereunder.
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7. CARE OF PREMISES. Tenant has examined the Premises and, subject to
such alterations as may be specifically set forth herein, accepts them in their
present condition and will at all times keep and maintain the Premises neat,
clean and in a sanitary condition. If this Lease is entered into prior to
completion of specific improvements for Tenant, the acceptance of Premises by
Tenant shall be deferred until notice from Owner to Tenant of such completion.
Unless within thirty (30) days thereafter Tenant shall have inspected the
Premises and advised Owner in writing to the contrary, Tenant shall be deemed
to have accepted the Premises in their then condition. At the expiration or
earlier termination of this Lease, Tenant shall surrender the Premises to Owner
in their condition as accepted hereunder, or as they may be altered or improved
pursuant to Section 8, subject only to ordinary wear and tear and damage by act
of God OR BY ANY OTHER CAUSE WHICH IS NOT DUE TO THE FAULT OR NEGLECT OF TENANT
OR TENANT'S PERMITTED OCCUPANTS.
8. ALTERATIONS AND IMPROVEMENTS. Tenant shall not make any alterations,
additions or improvements to the Premises without the prior written consent of
Owner. Unless otherwise provided for, all such alterations, additions and
improvements shall be at the sole cost and expense of Tenant, and shall become
the property of Owner and shall remain as part of the Premises at the
termination or expiration of this Lease. Tenant agrees to save Owner harmless
from any damage arising out of any such work. Owner reserves the right to make,
from time-to-time, at its expense, such alterations and improvements to
Premises and Property as it deems appropriate.
9. INSURANCE AND WAIVER OF SUBROGATION.
A. Tenant. Tenant shall, at its sole cost and expense, cause
to be placed in effect immediately upon commencement of the terms of this
Lease, and shall maintain in full force and effect during such term:
(i) A fire and extended coverage insurance policy covering all
Tenant's improvements, and its fixtures, equipment, furniture and inventory in
the Premises, on a full replacement cost basis (no deductions for
depreciation), insuring against risks covered by an extended coverage form
policy;
(ii) Bodily injury and property damage comprehensive public
liability insurance for the combined single limit coverage of not less than
$1,000,000.00.
Tenant shall deliver to Owner a duplicate original of each such
policy, or in lieu thereof, a certificate evidencing such coverage issued by
the Tenant's insurer. Each such policy or certificate shall provide that the
same shall not be canceled without at least ten (10) days prior written notice
to Owner, and shall name Owner and Owner's designee as an additional insured
thereunder.
B. Owner. Owner shall cause to be placed in effect immediately
upon commencement of the term of this Lease, and shall maintain in full force
and effect during such term:
(i) A fire and extended coverage insurance policy covering all
improvements, structures and contents in the entire property of which the
Premises are a part, but not including Tenant's leasehold improvements,
equipment, fixtures, furniture and inventory, on a basis satisfactory to
Owner's permanent lender or the holder of the first lien mortgage or deed of
trust on the Land and Building, insuring against risks covered by an extended
coverage form policy;
(ii) Bodily injury and property damage comprehensive public
liability insurance for the combined single limit coverage of not less than
$1,000,000.00.
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C. Owner and Tenant hereby release each other from responsibility
for and waive their entire claim of recovery for any insured loss or damage to
the property of either located in or about the Premises, including the Property
and Premises, arising out of the occurrence of any of the perils which are
covered by the fire and extended coverage insurance in effect at the time
thereof, and (b) insured loss resulting from business interruption at Premises
or loss of rental income from the Property, arising out of the occurrence of
any such peril.
10. ACCIDENTS. Tenant shall save and hold Owner harmless from all loss,
damage and liability resulting from any injury to any person or any loss of or
damage to any property, including the Property and Premises, caused by or
resulting from any act or omission of Tenant or any officer, agent, employee,
guest, invitee, or visitor of Tenant in or about the Premises or Property. Owner
shall not be liable for any loss or damage to person or property sustained by
Tenant or any other person, which may be caused by the Premises [or Property] or
any part thereof being out of repair, or by the bursting or leakage or
malfunction of any apparatus, equipment or pipe, or by theft or by any act or
neglect of any person or any other cause of whatsoever nature unless caused by
the [willful act of Owner] NEGLIGENCE OF OWNER OR ANY EMPLOYEE OR AGENT OR
CONTRACTOR OF OWNER.
11. ACCESS. Owner shall have the right to inspect the Premises at all
reasonable times UPON REASONABLE ADVANCE NOTICE (EXCEPT IN CASE OF ANY SUCH
ENTRY FOR EMERGENCY REPAIRS) and to THEN enter the same for the purpose of
cleaning, repairing, altering or improving the PREMISES. [same on the Property,
but nothing contained in this Lease shall be construed as to require Owner to
make any repairs, alterations, or improvements.]
12. SIGNS OR ADVERTISING. Tenant shall not inscribe any inscription or
post, place, or in any manner display any sign, notice, or any advertising
matter whatsoever anywhere in or about the Premises or Property without first
obtaining Owner's written consent thereto. NOTWITHSTANDING THE FOREGOING,
OWNER CONSENTS TO TENANT'S PLACEMENT OF ITS CORPORATE LOGO IN THE RECEPTION
AREA OF THE PREMISES.
13. UNLAWFUL USE. Tenant will not disturb other occupants of the Property
and will not do nor permit to be done in or about the Premises or Property
anything which is illegal or which may be dangerous to life or limb or will
increase any insurance rate upon Property or Premises. Tenant will comply with
all governmental rules, orders, regulations, or requirements relating to the
use and occupancy of the premises.
14. SUCCESSORS. All the covenants, agreements, terms and conditions of
this Lease shall bind Owner and Tenant and their respective heirs, executors,
administrators, successors and assigns.
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15. POSSESSION. If Owner is unable to deliver possession of Premises or
any part thereof at the time of commencement of this Lease, Owner shall not be
liable for any damage nor shall this Lease become void or voidable, nor shall
the term be in any way extended, but in such event Tenant shall nor be liable
for any rental, or in the event of inability to deliver possession of part of
the Premises, for the appropriate pro- rata part of the rental, until such time
as Owner can deliver possession. Should Tenant accept the Premises prior to
commencement of the Lease, Tenant shall be bound by all the provisions of the
Lease during such prior period and shall pay rental at the above prescribed
monthly rate prorated for such period.
16. NOTICES. All notices under this Lease shall be in writing and
delivered in person or sent by United States mail to Owner at the same place
rent payments are made, and to Tenant at the leased Premises. Owner and Tenant
may hereafter designate any change of address as each may wish. Notices mailed
shall be deemed given on the date of mailing.
17. LIENS AND INSOLVENCY. Tenant shall keep the Premises free from any
liens or other encumbrances arising out of any work performed, materials
furnished, or obligations incurred by Tenant. In the event Tenant becomes
insolvent, or if a receiver, assignee or other liquidating officer is appointed
for the business of Tenant or the Premises, Owner may cancel this Lease at its
option.
18. DEFAULT AND REENTRY. If Tenant fails to pay rent as herein required
or to perform any other covenant of this Lease, Owner may renter and take
possession of the Premises and shall have all the rights of a landlord under
the laws of the State of Washington. Notwithstanding such retaking of
possession by Owner, Tenant shall remain liable for the rental for the balance
of the term and without terminating this Lease, Owner may relet all or any part
of the Premises upon such terms and conditions as Owner may deem advisable, in
which event the rents received shall be applied first to the expenses of
reletting and collection, including necessary renovation and alteration of the
Premises, reasonable attorneys' fees and real estate commissions paid, and
thereafter to all sums to become due hereunder, and Tenant shall pay Owner
monthly any deficiency resulting therefrom.
19. REMOVAL OF PROPERTY. In the event of reentry or taking possession of
the Premises, Owner shall have the right, but not the obligation, to remove
therefrom all property located therein and may store the same in any place
selected by Owner, including, but not limited to, a public warehouse at the
expense and risk of Tenant, with the right to sell such property without notice
to Tenant after it has been stored for a period of thirty (30) days. The
proceeds of such sale shall be applied first to the cost of sale, second to the
payment of storage charges, and third to the payment of any other sums which
may then be due to Owner from Tenant, with any balance to be paid to Tenant.
20. HOLDOVER. If Tenant shall, with written consent of Owner, holdover
after the expiration of this Lease, such shall be a month-to-month tenancy for
an indefinite period of time, which tenancy may be terminated as provided by
the laws of the State of Washington. During such tenancy, Tenant agrees to pay
Owner the same rental as set forth herein and to be bound by all the terms,
covenants and conditions of this Lease.
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21. ATTORNEYS' FEES. In the event of any action at law or in equity
between Owner and Tenant to enforce any of the provisions, rights or
obligations hereunder, the unsuccessful party to such litigation agrees to pay
to the successful party all costs and expenses, including reasonable attorneys'
fees, incurred therein by the successful party, and if such successful party
shall recover judgment in any such action or proceeding, such costs and
expenses and attorneys' fees shall be included in and as a part of such
judgment. Venue shall be in Spokane County, Washington.
22. NON-WAIVER OF BREACH. The failure of Owner to insist upon strict
performance of any of the covenants or terms of this Lease or to exercise any
option or right herein conferred shall not be construed as a waiver of any such
right to so act in the future, but the same shall remain in full force and
effect.
23. SUBORDINATION. Tenant agrees that this Lease shall be subordinate to
any mortgage or deed of trust now existing or hereafter placed upon the
Property or the Premises created by or under the direction of the Owner, and to
any or all advances to be made thereunder, and to interest thereon and all
modifications, renewals and replacements or extensions thereof. Tenant agrees
to execute any documents required by Owner from time-to-time to evidence
Tenant's subordination of Tenant's interest under Tenant's Lease to any
existing or future security interests. In the event of the enforcement of a
security interest by the secured party or by the trustees for the secured party
by the use of any remedies provided for by law or by documents evidencing the
debt and the security interest, the Tenant will, if requested by the secured
party or by any persons succeeding to the interest of the Owner as a result of
that enforcement, automatically become the Tenant of any successor in interest,
without any change in the terms and other provisions of the respective Lease;
provided, however, that the successor in interest shall not be bound by (a) any
payment of rent or additional rent for more than one month in advance, except
prepayment in the nature of security for the performance by the Tenant of its
obligation under the Lease not in excess of an amount equal to one month's
rental, or (b) any amendment or modification of the Lease made without consent
of beneficiary or any successor in interest. Upon request by the successor in
interest, the Tenant shall execute and deliver an instrument or instruments
confirming its attornment.
24. BUILDING RULES AND REGULATIONS. Tenant agrees to be bound by all
rules and regulations which Owner may from time to time promulgate with respect
to the entire Property, and acknowledges receipt of a copy of the present rules
and regulations.
25. ENTIRE AGREEMENT. This Lease contains all covenants and agreements
between Owner and Tenant relating in any manner to the leasing, use and
occupancy of the Premises and other matters set forth in this Lease. No prior
agreements or understandings pertaining to the same 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 Owner and Tenant.
26. 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 hereof and the remaining provisions hereof shall nevertheless remain
in full force and effect.
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27. ESTOPPEL CERTIFICATES. Tenant shall, from time to time, upon written
request of Owner, execute, acknowledge and deliver to Owner or its designee a
written statement stating: The date this Lease was executed and the date it
expires; the date the term commenced and the date Tenant accepted the Premises;
the amount of minimum monthly rent and the date to which such rent has been
paid; and certifying: That this Lease is in full force and effect and has not
been assigned, modified, supplemented or amended in any way (or specifying the
date and terms of agreement so affecting this Lease); that this Lease
represents the entire agreement between the parties as to this leasing; that
all conditions under this Lease to be performed by the Owner have been
satisfied, including, but without limitation, that any required contributions
by Owner to Tenant on account of Tenant's improvements have been received; that
on this date there are no existing claims, defenses or offsets which the Tenant
has against the enforcement of this Lease by the Owner; that no rent has been
paid more than one month in advance; and that no security has been deposited
with Owner (or, if so, the amount thereof). It is intended that any such
statement delivered pursuant to this paragraph may be relied upon by a
prospective purchaser of Owner's interest or any holder or assignee of any
mortgage upon Owner's interest in the Property. If Tenant shall fail to
respond within ten (10) days of receipt by Tenant of a written request by Owner
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 Owner to a prospective purchaser or
mortgagee and that this Lease is in full force and effect, that there are no
uncured defaults in Owner's performance, that any security deposit is as stated
in the Lease, and that not more than one month's rent has been paid in advance.
28. TAX ON RENTALS. Should there presently be in effect or should there
be enacted during the term of this lease any law, statute or ordinance levying
any tax (other than Federal or State income taxes) upon rents or the income
from real estate or rental property, or increasing any such tax, Tenant shall
reimburse Owner monthly and at the same time as fixed minimum rental payments
are due hereunder, for the actual amount of all such taxes paid, as additional
consideration for the execution of this lease.
29. REAL ESTATE LICENSE DISCLOSURE. Tenant acknowledges that Xxxxxx X.
Xxxxxx and Xxxxxx X. Xxxxxx are partners of the managing partnership within the
partnership that own the subject property, and that they are licensed real
estate Brokers in the State of Washington.
30. BROKER REPRESENTATION / LEGAL ADVICE. Tenant acknowledges that KIEMLE
& XXXXXX COMPANY, Leasing Agent(s), represented the Owner in this transaction.
Each party signing this document confirms that prior oral and/or written
disclosure of agency was provided to him/her in this transaction.
This Lease has been prepared for submission to your attorney for
his/her approval. No representation or recommendation is made by KIEMLE &
XXXXXX COMPANY or its agents or employees as to the legal sufficiency, legal
effect or tax consequences of this Lease.
THE TENANT AND OWNER ACKNOWLEDGE THAT XXXX X. XXXXXXX OF KIEMLE &
XXXXXX COMPANY REPRESENTED THE SOLE INTERESTS OF THE TENANT IN THIS LEASE
NEGOTIATION. THE TENANT AND OWNER ADDITIONALLY ACKNOWLEDGE AND APPROVE THAT
KIEMLE & XXXXXX COMPANY HAS ACTED AS A DUAL AGENT IN THIS LEASE NEGOTIATION.
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31. RIDERS. A copy of the Building Rules and Regulations and Exhibit "A"
have been added and made a part of this Lease hereto. Paragraph Nos. 3, 4, 5,
6, 7, 10, 11 and 30 have been modified and made a part of this Lease hereto.
Paragraph Nos. 33, 34 and 35 have been added in their entirety and made a part
of this Lease hereto.
32. APPROVAL OF TENANT FINANCIAL CONDITION. Tenant acknowledges that
acceptance of this Lease by Owner is subject to Owner's financial status and
condition and Owner's approval thereof. Approval shall be deemed as having been
granted upon Owner's execution of this document. Should Owner not grant
approval of tenant's financial condition, all sums paid by Tenant to Owner as
security or rental payments shall be immediately returned and this Lease shall
become null and void, with neither party having any further liability to the
other.
33. ALTERATIONS AND IMPROVEMENTS. The Owner shall construct the
improvements as preliminarily outlined on the floor plan form Northwest
Architectural Company dated August 19, 1996 and attached hereto as Exhibit "B"
and letter of estimates outlining the scope of work from Construction
Associates dated September 13, 1996. The Owner shall provide a carpet allowance
of $12.00 per square yard for the cost of carpet, including taxes. The Owner
shall also switch the existing men's and women's restrooms on the 13th floor.
34. EXPANSION OPTION. The Tenant shall have the option to lease any
unleased adjoining vacant space on the 13th floor by providing thirty (30) days
written notice to Owner. In addition, if the Owner has an interested party to
lease said adjoining space, the Owner will notify Tenant, in writing, and
Tenant will have five (5) business days to notify the Owner of their intent to
occupy the adjoining space. In the event of further expansion, the Lease shall
be amended to incorporate the new Premises and the rental for the Expansion
Premises shall be based upon the then per square foot rent being paid by
Tenant. The Owner shall provide an Improvement Allowance commensurate with that
provided on the original Lease and if Tenant expands, the Lease shall be
extended to have a minimum of five (5) years remaining.
35. CANCELLATION OPTION. Provided that Tenant is not in default of any of
the terms herein, Tenant shall have the one-time right to terminate this Lease
on December 31, 2001 by providing one hundred eighty (380) days prior written
notice to the cancellation date and paying a cancellation fee of seventy
thousand ($70,000.00) dollars.
IN WITNESS THEREOF, the parties hereto have executed this Lease the day and
year first above written.
OWNER: TENANT:
WEST RIVERSIDE INVESTORS NATIONAL SECURITIES,
a general partnership a Washington corporation
By: KHR Investment Company By:______________________________
Managing Partner Xxxxxx X. Xxxxxxx, President
By:______________________________ By:______________________________
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Partner
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