Exhibit 10.2
Page 1
LEASE
THIS LEASE is made this ___ day of February, 2004, by and between PLAZA 305
ASSOCIATES, a Washington partnership, hereinafter called "Landlord", and
eACCELERATION CORPORATION, hereinafter called "Tenant".
1. BASIC LEASE TERMS
A. DATE OF LEASE EXECUTION: MARCH 12, 2004
B. TENANT: EACCELERATION CORP.
ADDRESS: ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ #▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
C. LANDLORD: PLAZA 305 ASSOCIATES C/O ▇▇▇▇▇▇▇ ▇▇▇▇▇, INC.
ADDRESS: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
D. PREMISES: ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇
E. SQUARE FOOTAGE: PREMISES RENTABLE SQUARE FOOTAGE: APPROXIMATELY 2,472
SQUARE FEET
BUILDING RENTABLE SQUARE FOOTAGE: APPROXIMATELY 30,696
SQUARE FEET
F. TENANT'S PERCENTAGE: 8.05%
G. COMMENCEMENT DATE: APRIL 1, 2004 OR UPON OCCUPANCY OF THE PREMISE,
WHICHEVER OCCURS FIRST.
H. LEASE TERM: THREE (3) YEARS
I. OPTION TO EXTEND: THREE (3) ONE (1) YEAR OPTIONS
J. BASE RENT: $1,800.00 NNN PER MONTH
K. RENT ADJUSTMENT: ANNUAL CPI ADJUSTMENTS NOT TO EXCEED 4%
L. SECURITY DEPOSIT: $1,800.00
M. USE OF PREMISES: OFFICE/ADMINISTRATIVE OPERATIONS NOT TO EXCEED USING
13 PARKING SPACES. THE TENANT ACKNOWLEDGES THAT
LANDLORD SHALL HAVE UNENCUMBERED ACCESS AT
ALL TIMES TO THE FIRE SPRINKLER ROOM LOCATED
WITHIN SUITE 160.
N. BROKERS: ▇▇▇▇▇▇▇ ▇▇▇▇▇, INC. & Windermere Commercial
O. PARKING: MAXIMUM OF TEN (13) PARKING SPACES, WHICH ARE NOT
ASSIGNED. EMPLOYEE PARKING IS LIMITED TO THE SOUTH END
OF THE BUILDING.
P. ENUMERATION OF EXHIBITS:
The exhibits enumerated in this Section and attached to this Lease are
incorporated herein by reference and are to be construed as a part of this
Lease. Each party agrees to perform any obligations on its part stated in any
and all such Exhibits.
Exhibit A - Site Plan
Exhibit A-1 - Legal Description
Exhibit B - Description of Landlord's and Tenant's Work
Exhibit C - Demising Plan of Premises
Exhibit D - Signage Criteria
Exhibit E - Broker's Disclosure
LANDLORD ______ LANDLORD ______ LANDLORD ______ LANDLORD______ TENANT _______
Page 2
Exhibit F - Personal Guaranty
Exhibit G - Corporate Resolution of Tenant
Section 1 represents a summary of the basic terms of this Lease. In the event of
any inconsistency between the terms contained in Section 1 and any other clause
of this Lease, the terms of that clause shall prevail.
2. PREMISES AND COMMON AREA LEASED
A. DEFINITIONS.
1. Landlord hereby leases to Tenant and Tenant leases from Landlord those
certain premises described in Section 1 and in Exhibit "A" attached
hereto (the "Premises").
2. The Premises are contained within a building (the "Building"), which
is located at the address designated in Section 1, and Legally described
on Exhibit "A-1" attached hereto (the "Property"). The term "Building"
shall include all of the rentable square feet and the Common Areas as
defined herein.
3. "Common Areas" shall be defined as areas appurtenant to the Premises
which are not a part of a premises for any other tenant in the Building,
including, but not limited to; entrances, hallways, elevators, stairways,
common ducts, conduits, wires and appurtenant equipment serving the
Premises, trash areas, parking areas, roadways, sidewalks walkways, and
landscaped areas and similar areas and facilities on the Property which
are appurtenant to the Building.
B. USE OF BUILDING COMMON AREAS.
Tenant shall have the nonexclusive right to use in common with other tenants in
the Building, the Common Areas subject to the Rules and Regulations, which may
be promulgated by Landlord from time to time (the "Rules and Regulations").
C. RESERVATION.
Landlord reserves the right from time to time without unreasonable interference
with Tenant's use:
1. To install, use, maintain, repair and replace pipes, ducts, conduits,
wires and appurtenant meters and equipment included in central core
areas, and to relocate any pipes, ducts, conduits, wires and appurtenant
meters and equipment included in the Premises which are located in the
Premises or located elsewhere outside the Premises, and to expand the
Building; and
2. To make changes, additions or deletions to the Common Areas,
including, without limitation, changes in the location, size, shape and
number of driveways, entrances, parking spaces, parking areas, loading
and unloading areas, ingress, egress, direction of traffic, landscaped
areas and hallways; and specifically but without limitation to modify the
surface parking area; and
3. To temporarily close any of the Common Areas for maintenance purposes
so long as reasonable access to the Premises remains available; and
4. To add additional buildings and improvements to the Common Areas; and
5. To use the Common Ares while engaged in making additional
improvements, repairs or alterations to the Building, or any portion
thereof;
6. To perform such other acts and make such other changes in, to or with
respect to the Common Areas and the Building as Landlord may, in the
exercise of sound business judgment, deem to be appropriate.
D. COMMENCEMENT DATE.
The Lease Term shall be for the period designated in Section 1, commencing on
the date specified in Section 1, and ending on the expiration of such period,
unless the Lease Term shall be sooner terminated as provided in this Lease. The
date upon which the Lease commences shall be Commencement Date. Reference in
this Lease to a "Lease Year" shall mean each twelve-month period commencing with
the first day of the calendar month in which the term of this Lease commences.
LANDLORD ______ LANDLORD ______ LANDLORD ______ LANDLORD______ TENANT _______
Page 3
E. OPTION TO EXTEND.
In the event Tenant is not in default and has not been in default at any time
during the Lease Term, Tenant shall have the right to extend the Lease Term for
a period as set forth in Section 1, on the terms and conditions set forth herein
("Option"). In the event Tenant wishes to exercise its Option to extend, Tenant
shall notify Landlord in writing no later than ninety (90) days before the
expiration of the Lease Term. In the event Tenant provides such notice, and is
not and has not been in default at any time during the Lease Term then Landlord
and Tenant shall be bound to extend the Lease Term for the Premises on the same
terms and conditions of the Lease except for:
1. The base rent for the first year of the option period as set in
Section 1, shall be negotiated. In the event Landlord and Tenant are
unable to agree upon a proper rental for the extended term, then each of
the parties hereto shall appoint an arbitrator, and in case the
arbitrators are unable to agree on a property rental for the extended
term, they shall jointly appoint a third arbitrator. If they should be
unable to agree on a third arbitrator, then the third arbitrator shall be
appointed by the Presiding Judge of the Superior Court of Kitsap County,
Washington. The decision of any two such arbitrators shall be finding
upon the parties hereto. The costs and expenses of the arbitration
proceeding shall be borne equally by the parties, except that each party
shall be responsible for its own attorneys' fees and costs, unless the
arbitrators' award is otherwise. In no event shall the base rent be less
than the base rent for the last year of the initial lease term.
2. The monthly rental rate shall be adjusted per the terms of Section 4
B.
3. POSSESSION
A. DELIVERY OF POSSESSION.
Landlord shall deliver possession to Tenant on or before the Commencement Date
as set forth in Section 1. If Landlord, for any reason whatsoever, cannot
deliver possession of the Leased Premises to Tenant at the commencement of the
term of this Lease, this Lease shall not be void or voidable, nor shall Landlord
be liable to Tenant for any loss or damage resulting therefrom, but in that
event there shall be a proportionate reduction of rent covering the period
between the commencement of the term and the time when Landlord can deliver
possession. The term of this Lease shall be extended by such delay. If Tenant
occupies the premises prior to said commencement date, such occupancy shall be
subject to all provisions hereof, such occupancy shall not advance the
termination date, and Tenant shall pay rent for such period at the initial
monthly rates as set forth below.
B. TENANT IMPROVEMENTS.
Tenant hereby acknowledges that Tenant shall complete the Tenant Improvements
delineated on Exhibit "B" prior to Tenant's occupancy.
4. BASE RENT
A. BASE RENT.
Tenant hereby covenants and agrees to pay Landlord as Base Rent for the Premises
the sum as provided in Section 1 above (subject to adjustment as hereinafter
provided), in advance, on the first day of each calendar month from the
Commencement Date. If the Lease Term commences or ends on any day other than the
first day of a calendar month, then the Base Rent for such month shall be
prorated. In addition to the Base Rent, Tenant agrees to pay the Additional Rent
required by this Lease. All Rent shall be paid to Landlord at the address set
forth in Section 1, without prior demand and without any deduction or offset, in
lawful money of the United States of America, at the address of Landlord
designated in Section 1 or to such other person or at such other place as
Landlord may from time to time designate in writing.
B. RENT ADJUSTMENT.
The monthly rental rate shall be adjusted at each annual anniversary date by
using the revised Consumer Price Index (CPI) for all urban consumers as
published by the United States Department of Labor for Seattle/Tacoma Average,
all items (1982-84=100) or a comparable CPI index that is reasonably available
and appropriate, as may be determined by the Landlord. The index used shall be
for the most current period preceding the month of the anniversary date. The
percentage of change from the earlier index to the later index shall be
multiplied by the monthly rental rate at the beginning of the lease year and the
result added to the said beginning rate to arrive at the adjusted rate, which
will apply to each of the twelve (12) months of the
LANDLORD ______ LANDLORD ______ LANDLORD ______ LANDLORD______ TENANT _______
Page 4
succeeding lease year, except in no event shall the increase in the rental rate
be more than percentage set forth in Section 1. Notwithstanding other provisions
of this paragraph, the Base Rent payable by Tenant shall in no event be less
than the Base Rent as may have been previously adjusted upward, except in no
event shall the increase in the rental rate be more than 4%.
C. LATE CHARGES AND INTEREST.
In the event Tenant fails to pay Rent within ten (10) days of the date when due
or in the event Tenant fails to make any other payment for which Tenant is
obligated under this Lease when due, the Tenant shall pay to Landlord a late
charge equal to five percent (5%) of the amount due to compensate Landlord for
the extra costs incurred as a result of such late payment. Additionally, all
such delinquent Rent or other sums, plus late charges, shall bear interest from
the date due until paid, at the prime commercial rate of interest in effect at
the time such obligation becomes delinquent as published from time to time by
Bank of America, Regional Office, Seattle, Washington, plus two percent (2%).
Any payments of any kind returned for insufficient funds will be subject to an
additional charge of $50.00. The provisions set forth herein shall be in
addition to and shall not limit Landlord's remedies in the event of Tenant's
failure to pay Rent.
D. DEFINITION.
Any reference to "Rent" or "Rental" in this Lease shall mean both Base Rent and
Additional Rent as defined herein.
E. PAYMENT WITH LEASE
The amount of base rent set forth in Section 1 is paid herewith to Landlord upon
the execution of this Lease, receipt of which is hereby acknowledged, which
shall represent the first month's rent.
5. ADDITIONAL RENT
A. DEFINITION.
In addition to the base Rent, Tenant shall pay Tenant's Percentage of Additional
Rent as specified in Section 1F, which shall be comprised of the Property Taxes
and Operating Expenses defined as follows:
1. PROPERTY TAXES.
The term "Property Taxes" shall include all real and personal property
taxes, assessments, license fees, license tax, rental tax, levy, or tax
on net income imposed by any governmental authority or agency on the
Property and on all other improvements, fixtures, equipment and other
property of Landlord located in or used in connection with the operation
of the Property.
2. OPERATING EXPENSES.
The term "Operating Expenses" shall include the total amounts paid or
payable by Landlord or others on behalf of Landlord in connection with
the ownership, maintenance, repair and operation of the Building and the
Property and shall include, but not be limited to the following; (a)
total charges of Landlord or any independent contractors employed in the
care and operation, common area janitorial, management, maintenance and
repair of the Property and/or the Building; (b) cost of the fire alarm
system; (c) landscaping; (d) trash removal; (e) the amount paid for all
supplies, tools, equipment and necessities which are occasioned by every
day wear and tear; (f) the cost of all utilities which are not separately
metered including electricity, gas, water and sewer charges; (g) the
amount paid for premiums of all insurance required from time to time by
Landlord and Landlord's mortgagee and other items as are now or hereafter
customarily included in the cost of managing, operating, maintaining, and
repairing.
B. PAYMENT OF ADDITIONAL RENT.
1. Tenant share of the costs and expenses referred to in Section 5.A.
hereof, shall be paid as additional rent at the end of each month.
Landlord shall furnish Tenant a statement in reasonable detail of the
actual cost and expenses paid or incurred by Landlord which are
chargeable to Tenant, to the end that Landlord shall receive the entire
amount of Tenant's share of such costs and expenses, or
2. Landlord at their discretion may estimate the Additional Rent for each
Lease Year and Tenant shall pay one-twelfth (1/12) of such estimated
amount as Additional Rent on the 1st day of each month. Landlord shall
give written notice of such estimated amount prior to the commencement of
a Lease Year. Additional Rent shall be due and payable from date of
occupancy.
C. ACCOUNTING.
If Landlord chooses option B.2. then Landlord shall furnish within ninety (90)
days of the end of each Calendar Year an accounting of the actual costs with
respect
LANDLORD ______ LANDLORD ______ LANDLORD ______ LANDLORD______ TENANT _______
Page 5
to the Property Taxes and Operating Expenses for the current Lease Year,
including the calculation to determine the Additional Rent. In the event that
Landlord shall, for any reason, be unable to furnish the accounting for any
Lease Year by such date, Landlord may furnish such an accounting as soon
thereafter as is practicable, with the same force and effect as if such
statement had been delivered within ninety (90) days of said year. Within thirty
(30) days of Landlord's delivery of such accounting, Tenant shall pay to
Landlord the amount of any underpayment of Additional Rent. If, in any Lease
Year, the actual amount of Tenant's Percentage of Additional Rent is less than
the estimated amount for that year, then upon receipt of Landlord's statement,
any over-payment made by Tenant shall be credited towards the next Rent
payment(s) falling due. If the Lease Term has expired and Tenant has vacated the
Premises, upon the final determination of Tenant's Percentage of Additional Rent
for the year in which this Lease terminates, Tenant shall immediately pay any
increase due over the estimated expenses paid and, conversely, any over-payment
made shall be rebated immediately by Landlord to Tenant.
D. SEPARATELY METERED UTILITIES AND SERVICES PROVIDED WITHIN LEASES PREMISES.
Tenant shall be liable for and shall pay before delinquency all separately
metered utilities and services. Services, such as janitorial and maintenance
services, provided within the leased premises shall be the sole responsibility
of the Tenant.
E. INTENT.
The intent of this section is to require Tenant to pay its proportionate share
of the Property Taxes and Operating Expenses and is intended to pass onto Tenant
and cause to be reimbursed to Landlord all direct costs of operating, repairing
and managing the Property, Common Areas, Building, and the Premises.
Notwithstanding anything contained in this paragraph, the Rent payable by Tenant
shall in no event be less than the Base Rent.
6. SECURITY DEPOSIT
Upon the execution of this Lease, Tenant shall deposit with Landlord the amount
of the security deposit ("Security Deposit") set forth in Section 1 in part as
security for the performance by Tenant of the provisions of this Lease. If
Tenant is in default, Landlord can use the Security Deposit or any portion of it
to cure the default or to compensate Landlord for all damage sustained by
Landlord resulting from Tenant's default. Upon demand, Tenant shall immediately
pay to Landlord a sum equal to the portion of the Security Deposit expended or
applied by Landlord to maintain the Security Deposit in the amount initially
deposited with Landlord. If Tenant is not in default at the expiration or
termination of this Lease, Landlord shall return the entire Security Deposit to
Tenant. Landlord's obligations with respect to the deposit are those of a debtor
and not of a trustee, and Landlord can commingle the Security Deposit with
Landlord's general funds. Landlord is not required to pay Tenant interest on the
deposit. Landlord shall be entitled to immediately endorse and cash Tenant's
Security Deposit; however, such endorsement and cashing shall not constitute
Landlord's acceptance of this Lease. In the event Landlord does not accept this
Lease, Landlord shall return said Security Deposit to Tenant. Should Landlord
sell its interest in the Property during the Lease Term and if Landlord deposits
with the purchaser the Security Deposit deposited by Tenant, Landlord shall be
discharged from any further liability to Tenant with respect to the Security
Deposit.
7. USE
A. Tenant shall use the Premises for the purposes stated in Section 1 and shall
not use or permit the Premises to be used for any other purpose without the
prior written consent of Landlord. Tenant shall not use or occupy the Premises
in violation of law or of the Certificate of Occupancy issued for the Building,
and shall, upon written notice from Landlord, discontinue any use of the
Premises which is declared by any governmental authority having jurisdiction to
be a violation. Tenant shall not do or permit anything to be done in or about
the Premises which will in any way obstruct or interfere with the rights of
other tenants or occupants of the Building, or injure or annoy them, or use or
allow the Premises to be used for any improper, immoral, unlawful or
objectionable purpose, nor shall Tenant cause, maintain or permit any nuisance
in, on or about the Premises. Tenant shall not commit or suffer to be committed
any waste in or upon the Premises and shall keep the Premises in a "boom clean"
condition. Tenant shall be responsible for all structural engineering required
to determine structural load. Additional restrictions and regulations regarding
Tenant's use of the Premises and Building shall be set forth in the Rules and
Regulations.
B. SUITABILITY. Tenant acknowledges that neither Landlord nor any agent of
Landlord has made any representation or warranty with respect to the premises or
the building of which the premises may be a part or with respect to the
suitability of either for the conduct of the Tenant's business, nor has Landlord
agreed to undertake any modification, alteration or improvement of the premises
except as provided in this Lease.
LANDLORD ______ LANDLORD ______ LANDLORD ______ LANDLORD______ TENANT _______
Page 6
8. NOTICES
Any notice required or permitted to be given hereunder must be in writing and
may be given by personal delivery or by mail, and if given by mail shall be
deemed sufficiently given if mailed by registered or certified mail addressed to
Tenant at the Building, or to Landlord at the address designated in Section 1.
Either party may specify a different address for notice purposes by written
notice to the other, except that the Landlord may in any event use the Premises
as Tenant's address for notice purposes. Notice shall be deemed received two (2)
business days after deposit in the U.S. mail, postage prepaid.
9. HOLDING OVER
If Tenant holds over after the expiration or earlier termination of the Lease
Term without the express written consent of Landlord, Tenant shall become a
Tenant at sufferance only, at a rental rate equal to a Base Rent of one hundred
fifty percent (150%) of the Base Rent in effect upon the date of such expiration
and Additional Rent as calculated herein, prorated on a daily basis, and shall
be subject to the terms, covenants and conditions of this Lease. Acceptance by
Landlord of Rent after such expiration or earlier termination shall not result
in a renewal or extension of this Lease. The foregoing provisions of this
Section are in addition to and do not affect Landlord's rights specified herein
or any rights of Landlord provided by law for such holding over. If Tenant fails
to surrender the Premises upon the expiration of this Lease despite demand to do
so by Landlord, Tenant shall indemnify and hold Landlord harmless from all loss,
claim or damage Landlord incurs, including without limitation, a claim made by a
successor tenant for failure to provide possession of the Premises and any
attorney's fees and costs incurred by Landlord related thereto.
10. TAXES ON TENANT'S PROPERTY
Tenant shall be liable for and shall pay, at least ten (10) days before
delinquency, all taxes levied against any personal property or trade fixtures
placed by Tenant in or about the Premises. If any such taxes on Tenant's
personal property or trade fixtures are levied against Landlord or Landlord's
property or if the assessed value of the Premises is increased by the inclusion
therein of a value placed upon such personal property or trade fixtures of
Tenant and if Landlord, after written notice to Tenant, pays the taxes based
upon such increased assessment, which Landlord shall have the right to do
regardless of the validity thereof, but only under proper protest if requested
by Tenant, Tenant shall, upon demand, repay to Landlord the taxes so levied
against Landlord, or the portion of such taxes resulting from such increase in
the assessment.
11. CONDITION OF PREMISES
A. ACCEPTANCE.
The taking of possession of the Premises by Tenant shall conclusively establish
that the Premises and the Building were in satisfactory condition at such time,
subject to punch list items agreed to by Landlord and Tenant in writing prior to
Tenant's taking of possession.
B. LANDLORD'S OBLIGATION.
Landlord's sole construction obligation under this Lease shall be those
obligations set forth in Exhibit "B".
12. ALTERATIONS AND IMPROVEMENTS
A. CONSTRUCTION IMPROVEMENTS.
Tenant shall make no alterations, additions or improvements in or to the
Premises without Landlord's prior written consent, and then only by contractors
or mechanics approved by Landlord in writing. Tenant shall submit to Landlord
plans and specifications for any proposed alterations, additions or improvements
to the Premises, and Tenant may not make such alterations, additions or
improvements except in accordance with the plans and specifications approved by
Landlord, and shall not amend or modify such plans and specifications without
Landlord's prior written consent. Tenant agrees that there shall be no
construction of partitions or other improvements which might interfere with
Landlord's free access to mechanical installations or service facilities of the
Building or interfere with the moving of Landlord's equipment to or from the
enclosures containing said installations. All such work shall be done at such
times and in such manner as Landlord may from time to time designate and also
shall comply with all applicable provisions of this Lease and the Rules and
Regulations. Tenant covenants and agrees that all work done by Tenant shall be
performed in full compliance with all laws, rules, orders, ordinances,
regulations and requirements of all governmental agencies, offices and boards
having jurisdiction over the
LANDLORD ______ LANDLORD ______ LANDLORD ______ LANDLORD______ TENANT _______
Page 7
Premises. Before commencing any work, Tenant shall give Landlord at least ten
(10) days written notice of the proposed commencement of such work and shall, if
required by Landlord, secure at Tenant's own cost and expense, a completion and
lien indemnity bond satisfactory to Landlord for said work. Tenant further
covenants and agrees that any liens filed against the Property, the Premises, or
the Building for work claimed to have been done for or materials claimed to have
been furnished to Tenant, will be discharged by Tenant, by bond or otherwise,
within ten (10) days after the filing thereof, at the cost and expense of
Tenant. All alterations, additions or improvements upon the Premises shall
become the property of Landlord, and shall remain upon, and be surrendered with
the Premises as a part thereof, at the end of the Lease Term.
B. REMOVAL OF TENANT'S PROPERTY.
All articles of personal property and all business and trade fixtures, machinery
and equipment, furniture and movable partitions owned by Tenant or installed by
Tenant at its expense in the Premises shall be and remain the property of Tenant
and may be removed by Tenant at any time during the Lease Term as long as: (i)
such removal is made prior to the expiration of the Lease Term; (ii) Tenant
immediately repairs all damage caused by or resulting from such removal; and
(iii) Tenant is not in default hereunder. Such installation, location and
movement shall further be subject to the Rules and Regulations. If Tenant shall
fail to remove all of its personal property fixtures from the Premises upon
termination of this Lease for any cause whatsoever, Landlord may, at its option,
remove the same in manner that Landlord shall choose, and store said effects
without liability to Tenant for loss thereof. In such event, Tenant agrees to
pay Landlord upon demand any and all expenses incurred in such removal,
including court costs and attorney's fees and storage charges on such effects,
for any length of time that the same shall be in Landlord's possession. If
Tenant fails to pay for the cost of said storage after it has been stored for a
period of thirty (30) days or more, Landlord may, at its option, sell said
effects, or any of the same at private sale and without legal process, for such
price as Landlord may obtain and apply the proceeds of such sale upon any
amounts due under this Lease, including but not limited to attorney fees and the
costs associated with the sale of the personal property and fixtures.
13. REPAIRS
A. TENANT'S OBLIGATION.
By entry hereunder, Tenant accepts the Premises as being in good and sanitary
order, condition and repair. Tenant shall keep, maintain and preserve the
Premises in the same condition as it was when delivered to Tenant and shall, at
Tenant's sole cost and expense, maintain and make all repairs to the Premises
which maintenance and repairs includes but are not limited to plumbing and
plumbing fixtures, light fixtures including bulbs and ballasts, doors, windows
and glass which shall be made in accordance with this Lease. Tenant shall, upon
the expiration of the Lease Term surrender the premises to Landlord in the same
condition as when received, usual and ordinary wear and tear excepted. Landlord
shall have no obligation to alter, remodel, improve, repair, decorate or pain
the Premises or any part thereof. The parties hereto affirm that Landlord has
made no representations to Tenant respecting the condition of the Property, the
Common Areas, the Premises, or the Building. Tenant shall not be responsible for
any expense nor required to make any repairs or replacements, which may be
necessary as a result of damage or destruction caused, solely by Landlord's
negligence or default.
B. LANDLORD'S OBLIGATION.
Landlord shall repair and maintain the structural portions of the Building
including roof, exterior walls and foundation. If the maintenance and repairs
are cuased in part or in whole by the act, neglect or omission of any duty by
Tenant, its agents, employees, subtenants, licensees, or invitees, Tenant shall
reimburse Landlord, as Additional Rent, that portion of the cost of such
maintenance and repairs attributable to the act, neglect, or omission of Tenant,
its agents, employees, subtenants, licensees or invitees. Landlord shall not be
liable for any failure to make any such repairs or to perform any maintenance
unless it fails to commence any such repairs within a reasonable time not to
exceed thirty (30) days after written notice of the need of such repairs or
maintenance is given to Landlord by Tenant. There shall be no abatement of Rent
and no liability of Landlord by reason of any injury to or interference with
Tenant's business arising from the making of or failure to make any repairs,
alterations or improvements in or to any portion of the Building or the Premises
or in or to fixtures, appurtenances and equipment therein. Tenant may not offset
against or obtain a refund from its Rent obligations for the cost of any and all
repairs made by Tenant.
14. LIENS
Tenant shall not permit any mechanics', materialmen's or other liens to be filed
against the Property, the Building or against Tenant's leasehold interest in the
Premises. If any such liens are filed, Tenant shall have ten (10) days from the
date of such filing in which to either remove such liens or to provide a bond
indemnifying Landlord from and removing said lien in the amount of one hundred
twenty-five percent (125%) of the claimed lien amount or to provide other
security satisfactory to Landlord. If Tenant fails to take such measures in the
time allowed, Landlord may, without waiving any of its rights and
LANDLORD ______ LANDLORD ______ LANDLORD ______ LANDLORD______ TENANT _______
Page 8
remedies based on such breach of Tenant and without releasing Tenant from any of
its obligations, cause such liens to be released by any means it shall deem
proper, including payments in satisfaction of the claim giving rise to such
lien. Tenant shall pay to Landlord at once, upon notice by Landlord, any sum
paid by Landlord to remove such liens, together with interest at a rate equal to
the prime commercial rate of interest in effect at the time such obligation is
paid by Landlord as published from time to time by Bank of America, Head Office,
Seattle, Washington, plus two percent (2%) which interest rate shall apply from
the date of such payment by Landlord.
15. ENTRY BY LANDLORD
Landlord reserves the following rights, exercisable without liability to Tenant,
for (i) damage or injury to property, person or business, (ii) causing an actual
or constructive eviction from Leased Premises, or (iii) disturbing Tenant's use
or possession of Leased Premises:
(a) To change the name or street address of Building and/or Project;
(b) To install and maintain signs on exterior and interior of Building
and/or Project;
(c) To have passkeys to Leased Premises and all doors within Leased
Premises, excluding Tenant's vaults and safes;
(d) At any time after reasonable notice to Tenant, to inspect Leased
Premises, to show Leased Premises to any prospective purchaser, mortgagee, or to
any assignee of mortgagee on Building or Project, or to others having an
interest in Building, Project or Landlord;
(e) During the last six months of the Term, to show Leased Premises to
prospective tenants thereof; and (f) To enter Leased Premises for inspection,
repair, alteration, addition or improvement to Leased Premises or
Building (including, without limitation, checking, calibrating, adjusting or
balancing controls or other parts of HVAC systems), or for safety, protection,
maintenance or preservation of Leased Premises, Building or Landlord's interest
therein, or as may be necessary or desirable for operation or improvement of
Building or to comply with laws or requirements of governmental or other
authority. Landlord agrees to use its best effort (except in an emergency) to
minimize interference with Tenant's business in Leased Premises in the course of
any such entry.
(g) Landlord shall have the right to use any and all means which Landlord
may deem proper to open door and to enter the Premises in an emergency. Any such
entry to the Premises by Landlord by any means shall not be construed or deemed
to be a forcible or unlawful entry into the Premises, or an eviction of Tenant
from the Premises or any portion thereof, and any damages caused on account
thereof shall be paid by Tenant.
(h) It is understood and agreed that no provision of this Lease shall be
construed as obligating Landlord to perform any repairs, alterations or
improvements except as otherwise expressly agreed herein by Landlord.
16. UTILITIES AND SERVICES
Tenant hereby acknowledges that Landlord has provided to the Premises separately
metered water service for restrooms and electric service for normal lighting and
fractional horsepower office machines, utilities and heating, ventilation and
cooling. The failure of such services if caused by (A) accident, breakage or
repairs; (B) strikes, lockouts or other labor disturbance or labor dispute of
any character; (C) governmental regulation, moratorium or other governmental
action; (D) inability despite the exercise of reasonable diligence to obtain
electricity, water or fuel; or by (E) any other cause beyond Landlord's
reasonable control, shall not result in any liability to Landlord. In addition,
Tenant shall not be entitled to any abatement or reduction of Rent by reason of
such failure, and no eviction of Tenant shall result from such failure.
17. BANKRUPTCY
If Tenant shall file a petition in bankruptcy under any provision of the
bankruptcy Code as then in effect, or if Tenant shall be adjudicated a bankrupt
in involuntary bankruptcy proceedings and such adjudication shall not have been
vacated within sixty (60) days from the date thereof, or if a receiver or
trustee shall be appointed for Tenant's property and the order appointing such
receiver or trustee shall not be set aside or vacated within sixty (60) days
after the entry thereof, or if Tenant shall assign Tenant's estate or effects
for the benefit of creditors, or if this Lease shall, by operation of law or
otherwise, pass to any person or persons other than Tenant without the prior
written consent of Landlord, then in any such event Landlord may terminate this
Lease, if Landlord so elects, with or without notice of such election and with
or without entry or action by Landlord.
LANDLORD ______ LANDLORD ______ LANDLORD ______ LANDLORD______ TENANT _______
Page 9
18. INDEMNIFICATION OF LANDLORD
A. TENANT'S INDEMNIFICATION.
Subject to this Section, Tenant shall indemnify, defend and hold Landlord, its
trustees, general partners, limited partners, agents, employees or contractors,
harmless from all claims (1) arising from Tenant's use of the Premises; (2)
arising from the conduct of Tenant's business or from any activity, work or
thing done, permitted or suffered by Tenant in or about the Premises, the
Property, the Building or the Common Areas and (3) arising from the act,
omission, or negligence of any agent, employee, subtenants, licensee or invitee
of Tenant, in or about the Property, the Premises, Building or the Common Areas.
Tenant shall further indemnify, defend and hold Landlord, its trustees, general
partners, limited partners, agents, employees or contractors, harmless from all
claims arising from any breach or default in the performance of any obligation
to be performed
by Tenant under the terms of this Lease including Tenant's obligation to comply
with the Rules and Regulations and Covenants, Conditions and Restrictions and
from and against all costs, attorneys' fees, expenses and liabilities incurred
in connection with any claim or any action or proceeding which is brought
against Landlord, its trustees, general partners, limited partners, agents,
employees or contractors. In case any action or proceeding shall be brought
against Landlord by reason of any such claim, Tenant, upon notice from Landlord,
shall defend the same at Tenant's expense by counsel approved in writing by
Landlord. Tenant, as a material part of the consideration to Landlord, hereby
assumes all risk of damage to property or injury to persons in, upon or about
the Property, Premises, Building, or the Common Areas from any cause whatsoever
except that which is caused by the failure of Landlord, its general; partners,
limited partners, agents, employees or contractors, to observe any of the terms
and conditions of this Lease where such failure has persisted for an
unreasonable period of time after written notice of such failure to Landlord.
Tenant hereby waives all its claims in respect thereof against Landlord, its
general partners, limited partners, agents, employees or contractors.
B. LIMITATION.
Notwithstanding this Section, in the event of concurrent negligence of Tenant,
its agents, employees, subtenants, invitees, licensees or contractors on the one
hand, and that of Landlord, its trustees, general partners, limited partners,
agents, employees, or contractors on the other hand, which concurrent negligence
results in injury or damage to persons or property and relates to the
construction, alteration, repair, addition to, subtraction from, improvement to
or maintenance of the Property, the Premises, Common Areas, or the Building,
Tenant's obligation to indemnify Landlord as set forth in this Section shall be
limited to the extent of Tenant's negligence, and that of its agents, employees,
subtenants, invitees, licensees or contractors, including Tenant's proportional
share of costs, attorneys' fees and expenses incurred in connection with any
claim, action or proceeding brought with respect to such injury or damage.
C. EXCEPTION.
Neither Landlord nor its trustees, general partners, limited partners, agents,
employees or contractors of Landlord shall be liable (1) for any such damage
caused by other tenants or persons in or about the Building; or (2) caused by
public or quasi-public works; or (3) for consequential damages arising out of
any loss of the use of the Premises or of any equipment or facilities therein by
Tenant or any person claiming through or under Tenant, except to the extent
caused solely by the gross negligence or willful misconduct of Landlord.
19. DAMAGE TO TENANT'S PROPERTY
Notwithstanding the provisions of the preceding Section to the contrary (except
in the event of concurrent negligence by Landlord and Tenant as governed above),
Landlord, its trustees, general partners, limited partners, agents, employees or
contractors, shall not be liable for (A) any damage to any property entrusted to
employees of the Landlord, (B) loss or damage to any property by theft or
otherwise, or (C) any injury or damage to persons or property resulting from
fire, earthquake, explosion, falling plaster, steam, gas, electricity, water or
rain which may leak from any part of the Building or from the pipes, appliances
or plumbing work therein or from the roof, street or sub-surface or from any
other place or resulting from dampness or any other cause whatsoever. Landlord,
its trustees, general partners, limited partners, agents, employees or
contractors, shall not be liable for interference with light or other
incorporeal hereditaments, nor shall Landlord, its trustees, general partners,
limited partners, agents, employees or contractors, be liable for any latent
defect in the Premises or in the Building. Tenant shall give prompt notice to
Landlord in case of fire or accidents in the Premises or in the Building or of
defects therein or in the fixtures or equipment.
LANDLORD ______ LANDLORD ______ LANDLORD ______ LANDLORD______ TENANT _______
Page 10
20. INSURANCE
A. TENANT'S INSURANCE.
Tenant shall, during the term hereof and any other period of occupancy, at its
sole cost and expense, keep in full force and effect the following insurance:
1. Standard form property insurance insuring against the perils of fire,
extended coverage, vandalism, malicious mischief, special extended
coverage ("All-Risk") and sprinkler leakage. This insurance policy shall
be upon all property owned by Tenant, for which Tenant is legally liable
or that was installed at Tenant's expense, and which is locate din the
Building including, without limitation, furniture, fittings,
installations, fixtures (other than Tenant Improvements installed by
Landlord), and any other personal property, in an amount not less than
ninety percent (90%) of the full replacement cost thereof. In the event
that there shall be a dispute as to the amount, which comprises full
replacement cost, the decision of Landlord or any Mortgagees of Landlord
as defined in this Lease shall be conclusive. This insurance policy shall
also cover direct or indirect loss of Tenant's earnings attributable to
Tenant's inability to use fully or obtain access to the Premises or
Building in an amount as will properly reimburse Tenant. Such policy
shall name Landlord and any Mortgagees of Landlord as insured parties, as
their respective interests may appear;
2. Comprehensive General Liability Insurance insuring Tenant against any
liability arising out of the lease, use, occupancy or maintenance of the
Premises and all areas appurtenant thereto. Such insurance shall be in
the amount of at least $1,000,000 Combined Single Limit for Injury to, or
death of one or more persons in an occurrence, and for damage to tangible
property (including loss of use) in an occurrence, such liability amount
may be adjusted by Landlord from time to time upon written notice to
Tenant. The Policy shall insure the hazards of the Premises and Tenant's
operations thereon, independent contractors, contractual liability
(covering the indemnity contained in Section 18 hereof) and shall; (a)
name Landlord as an additional insured; (b) contain a cross liability
provision; and (c) contain a provision that the insurance provided the
Landlord hereunder shall be primary and non-contributing with any other
insurance available to the Landlord;
3. Workers' Compensation and Employer's Liability insurance as required
by state law;
4. Any other form or forms of insurance as Tenant or Landlord or any
Mortgagees of Landlord may reasonably require from time to time in order
to protect Landlord, other tenants of the Building, or any mortgagee of
Landlord, or if required by law or regulation.
B. FORM.
All insurance policies shall be written in a form and with an insurance company
reasonably satisfactory to Landlord. Within ten (10) days after Tenant takes
possession of the Premises, Tenant shall deliver to Landlord copies of policies
or certificates evidencing the existence of the amounts and forms of coverage
required by this Lease. Tenant shall, within ten (10) days prior to the
expiration of such policies, furnish Landlord with renewals or "binders"
thereof, or Landlord may order such insurance and charge the cost thereof to
Tenant as Additional Rent. If Landlord obtains any insurance that is the
responsibility of Tenant under this Section, Landlord shall deliver to Tenant a
written statement setting forth the cost of any such insurance and showing in
reasonable detail the manner in which it has been computed.
C. LANDLORD'S INSURANCE.
During the Lease Term, Landlord shall insure the Building (excluding any
property which Tenant is obligated to insure) against damage with All-Risk
Insurance and Public Liability Insurance, all in such amounts and with such
deductions, as Landlord considers appropriate. Landlord may, but shall not be
obligated to, obtain and carry any other form or forms of insurance as it or
Landlord's Mortgagees may determine advisable. Notwithstanding any contribution
by Tenant to the cost of insurance premiums, as provided herein, Tenant
acknowledges that it has no right to receive any proceeds from any insurance
policies carried by Landlord.
D. DUTY OF TENANT.
Tenant will not keep, use, sell or offer for sale in or upon the Premises any
article, which may be prohibited by any insurance policy periodically in force
covering the Building. If Tenant's occupancy, use, or business in, or on the
Premises, whether or not Landlord has consented to the same, results in an
increase in premiums for the insurance periodically carried by Landlord with
respect to the Building, Tenant shall pay any such increase in premiums as
Additional Rent within ten (10) days after being billed therefore by Landlord.
In determining whether increased premiums are a result of Tenant's use of the
Premises, a schedule issued by the organization computing the insurance rate on
the Building or the Tenant Improvements
LANDLORD ______ LANDLORD ______ LANDLORD ______ LANDLORD______ TENANT _______
Page 11
showing the various components of such rate, shall be conclusive evidence of the
several items and charges which make up such rate. Tenant shall promptly comply
with all reasonable requirements of any present or future insurer relating the
Premises.
E. CANCELLATION.
If any of Landlord's insurance policies shall be canceled or cancellation shall
be threatened or the coverage thereunder reduced or threatened to be reduced in
any way because of the use of the Premises or any part thereof by Tenant, its
agents, employees, agents or invitees or any assignee or subtenant of Tenant or
by anyone Tenant permits on the Premises and, if Tenant fails to remedy the
condition giving rise to such cancellation, threatened cancellation, reduction
of coverage threatened reduction of coverage, increase in premiums, or
threatened increase in premiums, within forty-eight (48) hours after notice
thereof, Landlord may, at its option, either terminate this Lease or enter upon
the Premises and attempt to remedy such condition, and Tenant shall promptly pay
the costs thereof to Landlord as Additional Rent. In such event, Landlord shall
not be liable for any damage or injury caused to any property of Tenant or of
others and Landlord shall have all of the remedies provided for in this Lease in
the event of a default by Tenant. Notwithstanding the foregoing provisions of
this Section, if Tenant fails to remedy as aforesaid, Tenant shall be in default
of its obligation hereunder and Landlord shall have no obligation to remedy such
default.
F. SUBROGATION.
All policies of insurance required hereunder shall include a clause or
endorsement denying the insurer any rights of subrogation against the other
party to the extent rights have been waived by the insured before the occurrence
of injury or loss. Landlord and Tenant waive any rights of recovery against the
other for injury or loss due to hazards covered by policies of insurance
containing such a waiver of subrogation clause or endorsement to the extent of
the injury or loss covered thereby.
21. DAMAGE OR DESTRUCTION
A. TOTAL DESTRUCTION.
In the event of the total destruction of the Premises and/or the Building
(defined as destruction equal to or exceeding 25% of the full insurable value of
the Premises and/or Building), Landlord shall, at Landlord's sole option, either
(1) commence repair, reconstruction and restoration of the Building and/or the
Premises as soon as reasonably possible and prosecute the same diligently to
completion, in which event this Lease shall remain in full force and effect; or,
(ii) within sixty (60) days after such destruction, elect not to so repair,
reconstruct or restore the Building and/or the Premises, in which event this
Lease shall terminate. In either event, Landlord shall give Tenant written
notice of its intention within said sixty (60) day period. In the event Landlord
elects not to restore the Building and/or the Premises, this Lease shall be
deemed to have terminated as of the date of such total destruction.
B. PARTIAL DESTRUCTION.
In the event of a partial destruction of the Building and/or Premises (defined
as destruction of less than twenty-five percent (25%) of the full insurable
value of the Premises and/or Building) and if the damage thereto is such that
the Building and/or the Premises may be repaired, reconstructed or restored
within a period of ninety (90) days from the date of the happening of such a
casualty, and if Landlord shall commence and proceed diligently with the work of
repair, reconstruction and restoration and this Lease shall continue in full
force and effect. If such work of repair, reconstruction and restoration shall
require a period longer than ninety (90) days or if Landlord will not receive
insurance proceeds sufficient to cover the cost of all such repairs, then
Landlord either may elect to so repair, reconstruct or restore and the Lease
shall continue in full force and effect or Landlord may elect not to repair,
reconstruct or restore and the Lease shall then terminate. Under any of the
conditions of this Section, Landlord shall give written notice to Tenant of its
intention within sixty (60) days of the partial destruction. In the event
Landlord elects not to restore the Common Areas and/or the Premises, this Lease
shall be deemed to have terminated as of the date of such partial destruction.
C. TERMINATION.
Upon any termination pursuant to the terms of this Paragraph 21, the parties
shall be released without further obligation to the other from the date
possession of the Premises is surrendered to Landlord except for items which
have therefore accrued and are then unpaid. Notwithstanding the provisions of
Sections 21 A and B above, if total or partial destruction is due to any cause
other than fire or other peril covered by extended coverage insurance, Landlord
may elect to terminate this Lease.
LANDLORD ______ LANDLORD ______ LANDLORD ______ LANDLORD______ TENANT _______
Page 12
D. ABATEMENT.
In the event of repair, reconstruction and/or restoration by Landlord as herein
provided, the Rental payable under this Lease shall be abated proportionately
with the degree to which Tenant's use of the Premises is impaired during the
period of such repair, reconstruction or restoration; provided that there shall
be no abatement of Rent if such damage is the result of Tenant's act, omission
or negligence or that of its agents, employees, subtenants, invitees, or
licensees. In the event of concurrent negligence, Tenant's Rent shall be abated
proportionately in an amount equal to the extent Tenant is not negligent. Tenant
shall not be entitled to any compensation or damages for loss in the use of the
whole or any part of the Premises and/or any inconvenience or annoyance
occasioned by such damage, repair, reconstruction or restoration.
E. DELAYS.
Tenant shall not be released from any of its obligations under this Lease except
to the extent and upon the conditions expressly stated in this Section.
Notwithstanding anything to the contrary contained this Section, if Landlord is
delayed or prevented from repairing or restoring the damaged Building, Common
Areas and/or Premises within one (1) year after the occurrence of such damage or
destruction by reason of acts of God, war, governmental restrictions, inability
to procure the necessary labor or materials, or other cause beyond the
reasonable control of Landlord, Landlord may terminate this Lease, whereupon
Landlord shall be relieved of its obligation to make such repairs or restoration
and Tenant shall be released from its obligations under this lease as of the end
of said one (1) year period.
F. EXTENT.
If Landlord is obligated to or elects to repair or restore as herein provided,
Landlord shall be obligated to make repair or restoration only of those portions
of the Building, Common Areas and/or the Premises which were originally provided
at Landlord's expense, and the repair and restoration of items not provided at
Landlord's expense shall be the obligation of Tenant.
G. LIMITATION.
Notwithstanding anything to the contrary contained in this Section, Landlord
shall not have any obligation whatsoever to repair, reconstruct or restore the
Building and/or Premises when the damage resulting from any casualty covered
under this Section occurs during the last twelve (12) months of the term of this
Lease or any extension thereof.
H. WAIVER.
Landlord and Tenant hereby waive the provisions of any statutes or court
decisions, which relate to the abatement or termination of leases when leased
property is damaged or destroyed and agree that such event shall be exclusively
governed by the terms of this Lease.
22. EMINENT DOMAIN
In case all of the Property, the Premises, Building, or such part thereof as
shall substantially interfere with either Landlord's or Tenant's use and
occupancy thereof, shall be taken for any public or quasi-public purpose by any
lawful power or authority by exercise of the right of appropriation,
condemnation or eminent domain, or sold to prevent such taking, either party
shall have the right to terminate this Lease effective as of the date possession
is required to be surrendered to said taking authority. Also, Landlord
determines, in the event of a taking of all or a part of the Common Areas that
any such taking will prohibit or inhibit ingress or egress to the Premises or
the Building, or will interfere with parking in the Building or areas necessary
for or to operation of the Building, Landlord shall have the right to terminate
this Lease effective as of the date possession is required to be surrendered to
said taking authority. Tenant shall not assert any claim against Landlord for
any compensation because of such taking, and Landlord shall be entitled to
receive the entire amount of any award resulting from said taking without
deduction for any estate or interest of Tenant. In the event the amount of
property and type of estate taken shall not substantially interfere with the
conduct of Tenant's business, or, with respect to the Common Areas, Landlord
determines it will not interfere wit ingress and egress to the Building, parking
or areas necessary to the operation of the Building, and Landlord determines in
its sole discretion Landlord is economically able to restore the Premises and/or
the Building to an operating entity comparable to that which existed prior to
the taking, Landlord shall restore the area affected by the taking. If a portion
of the Premises was affected by such taking, a proportionate allowance shall be
made to Tenant for the Rent corresponding to the time during which, and to the
part of the Premises which Tenant shall be so deprived on account of such taking
and restoration. In the event of partial taking of Leased Premises not resulting
in termination, Landlord shall restore remaining portion of Leased Premises as
nearly as practicable to condition prior to taking, but only to the extent of
Building Standard Work. Tenant shall be responsible for repair, restoration and
replacement of Leasehold Improvements and Tenant Property. Tenant however, shall
have the right, to the extent that Landlord's award is not reduced or
prejudiced, to claim
LANDLORD ______ LANDLORD ______ LANDLORD ______ LANDLORD______ TENANT _______
Page 13
from the condemning authority (but not from Landlord) such compensation as may
be recoverable by Tenant in its own right for relocation expenses and damage to
Tenant's personal property.
23. DEFAULTS AND REMEDIES
A. EVENTS OF DEFAULT.
The occurrence of any one or more of the following events shall constitute a
default hereunder by Tenant:
1. The vacation or abandonment of the Premises by Tenant;
2. The failure by Tenant to pay Rent or make any other payment required
to be made by Tenant hereunder, within ten (10) days of written notice of
the date when due;
3. The failure by Tenant to observe or perform any of the express or
implied covenants or provisions of this Lease and Rules and Regulations
to be observed or performed by Tenant, where such failure shall continue
for a period of ten (10) days after written notice thereof from Landlord
to Tenant. If the nature of Tenant's default is such that more than ten
(10) days are reasonably required, in the Landlord's sole discretion, for
its cure, then Tenant shall not be deemed to be in default if Tenant
shall commence such cure within said ten (10) day period and thereafter
diligently prosecute such cure to completion, which completion shall
occur not later than sixty (60) days from the date of such notice from
Landlord.
4. (a) The making by Tenant of any general assignment for the benefit of
creditors; (b) the filing by or against Tenant of a petition to have
Tenant adjudged a bankrupt or a petition for reorganization or
arrangement under any law relating to bankruptcy (unless, in the case of
a petition filed against Tenant, the same is dismissed within sixty (60)
days); (c) the attachment, execution or other judicial seizure of
substantially all of Tenant's assets located at the Premises of Tenant's
interest in this Lease where seizure is not discharged within thirty (30)
days; or (d) the appointment of a receiver for Tenant or any of Tenant's
assets;
B. REMEDIES.
In the event of any such default by Tenant, in addition to any other remedies
available to Landlord at law or in equity (including those set forth in
Subparagraphs C, D and E below), Landlord shall have the immediate option to
terminate the rights of Tenant hereunder. In the event that Landlord shall elect
to so terminate the rights of Tenant then Landlord may recover from Tenant:
1. Any unpaid Rent which had been earned at the time of such termination;
plus
2. The amount of unpaid Rent for the balance of the then current Lease
Term, which sum shall be payable monthly as required by the terms hereof,
less any amounts collected from any new tenant of the Premises, plus
3. Any other amount necessary to compensate Landlord for all the damages
proximately caused by Tenant's failure to perform Tenant's obligations
under this Lease. The amounts shall include attorney's fees and costs,
real estate commissions, advertising expenses, interest charges on loans
utilized to remodel for a replacement tenant and all costs of permitting
alteration or improvement for a replacement tenant.
C. RE-ENTRY.
In the event of any such default by Tenant, Landlord shall also have the right,
without notice to re-enter the Premises and remove all persons and property from
the Premises; such property may be removed and stored in a public warehouse or
elsewhere at the cost of and for the account of Tenant. No re-entry or taking
possession of the Premises by Landlord pursuant to this Section shall be
construed as an election to terminate this Lease unless a written notice of such
intention is given to Tenant or unless the termination thereof is decreed by a
court of competent jurisdiction.
D. ABANDONMENT.
In the event of the vacation or abandonment of the Premises by Tenant or in the
event that Landlord shall elect to re- enter as provided in Section 23C above or
shall take possession of the Premises pursuant to legal proceeding or pursuant
to any notice provided by law, then Landlord may from time to time, either
recover all Rent as it becomes due or re-let the Premises or any part thereof
for the term of this Lease on terms and conditions as Landlord in its sole
discretion may deem advisable with the right to make alterations and repairs to
the Premises and recover the sums set forth in Subparagraph B above. In
addition, the
LANDLORD ______ LANDLORD ______ LANDLORD ______ LANDLORD______ TENANT _______
Page 14
Landlord shall be entitled to change the locks without said revision being
considered a violation or termination of this lease or a termination of the
Tenants responsibilities hereunder.
E. RELETTING.
In the event that Landlord shall elect to so re-let, then Rentals received by
Landlord from such re-letting shall be applied first, to the payment of any
indebtedness other than Rent due hereunder from Tenant to Landlord; second, to
the payment of any cost of such re-letting; third, to the payment of the cost of
any alterations and repairs to the Premises; fourth, to the payment of Rent due
and unpaid hereunder and the residue, if nay, shall be held by Landlord and
applied to payment of future Rent as the same may become due and payable
hereunder. Should the portion of such Rentals received from such re-letting
during any month, which is applied to the payment of Rent hereunder, be less
than the Rent payable during that month by Tenant hereunder, then Tenant shall
pay such deficiency to Landlord immediately upon demand therefore by Landlord.
F. CUMULATIVE REMEDIES.
All rights, options and remedies of Landlord contained in this Lease shall be
construed and held to be cumulative, and no one of them shall be exclusive of
the other, and Landlord shall have the right to pursue any one or all of such
remedies or any other remedy or relief which ay be provided by law, whether or
not stated in this Lease.
24. ASSIGNMENT AND SUBLETTING
This Lease shall not, nor shall any interest of Tenant, herein, be assignable by
Tenant or by operation of law except as follows:
(a) Tenant shall not, without prior written consent of Landlord, assign
or hypothecate Lease or any interest herein, or sublet Leased Premises or part
thereof, or permit use of Leased Premises by any party other than Tenant. Any of
the foregoing acts without such consent shall be void and shall, at the option
of Landlord, terminate Lease.
(b) If Tenant desires to assign Lease or sublet all or part of Leased
Premises, Tenant shall give written notice to Landlord setting forth all terms
and provisions of proposed assignment or sublease, and identities of proposed
assignee or subtenant. Tenant shall promptly supply information concerning
business background and financial condition of proposed assignee or subtenant as
Landlord may reasonably request. Landlord shall have the option, exercisable by
notice to Tenant within twenty (20) days after Tenant's notice is received,
either to sublet such space from Tenant at rental rate and other terms set forth
in the proposed sublease, or, in the case of an assignment, to terminate this
Lease. If Landlord does not exercise such option, Tenant may assign the Lease or
sublet such space to such proposed assignee or subtenant on the following
further conditions:
(1) Landlord shall have the right to approve proposed assignee or
subtenant, which approval shall not be unreasonably withheld. Landlord's
reasonable determination that assignment may harm or deteriorate value, income,
operation, integrity, or operation of Building shall be a valid, but not
necessarily the only, reason to disapprove;
(2) Assignment or sublease shall be on the same terms set forth in
notice given to Landlord;
(3) No assignment or sublease shall be valid and no assignee or
sublease shall take possession of Leased Premises until a fully approved and
executed assignment or sublease has been delivered to Landlord;
(4) No assignee or sublease shall have a further right to assign or
sublet except on terms herein contained; and
(5) Financial integrity, security, and general business acumen,
reputation, and resources of assignee or sub landlord, in the opinion of
Landlord's legal or fiscal counsel are not less than the assignor at the time of
execution of this Lease.
Except as specified herein, if Tenant is a corporation, any transfer of this
Lease from Tenant by merger, consolidation or liquidation, or any change in the
ownership of the corporation, shall constitute an Assignment for the purposes of
this Section. If Tenant is a partnership, any transfer of this Lease by
dissolution, or any change in the ownership of the Partnership, shall constitute
an Assignment for the purposes of this Section. No consent to an Assignment
shall constitute a further waiver of the provisions of this Section.
25. SUBROGATION
A. Without the necessity of any additional document being executed by Tenant for
the purpose of effective subordination, and at the election of Landlord or any
Mortgagee, this Lease shall be subject and subordinate at all times to:
1. All ground leases or underlying leases which may now exist or
hereafter be executed affecting the Building or the Property upon which
the Building is situated or both;
LANDLORD ______ LANDLORD ______ LANDLORD ______ LANDLORD______ TENANT _______
Page 15
2. The lien of any Mortgage or Deed of Trust which may now exist or
hereafter be executed in any amount for which the Building, Property,
underlying leases, or Landlord's interest or estate in any of said items
is specified as security.
B. Notwithstanding the foregoing, Landlord shall have the right to subordinate
or cause to be subordinated any such ground Leases or underlying leases or any
such liens to this Lease. In the event that any mortgage is foreclosed or a
conveyance in lieu of foreclosure is made for any reason, Tenant shall,
notwithstanding any subordination, attorn to and become the Tenant of the
successor-in-interest to Landlord. Tenant covenants and agrees to execute and
deliver, upon demand by Landlord and in the form requested by Landlord, any
additional documents evidencing the priority of subordination of this Lease with
respect to any such underlying leases or the lien of any such Mortgage. Should
Tenant fail to sign and return any such documents within twenty (20) business
days of request, Tenant shall be in default, and Landlord may, at Landlord's
option, terminate this Lease provided written notice of such termination is
received by Tenant prior to Landlord's receipt of such documents executed by
Tenant. Tenant hereby irrevocably appoints Landlord as attorney-in-fact of
Tenant to execute, deliver and record any such documents in the name and on
behalf of Tenant.
C. In the event of any such subordination of this Lease, Tenant's possession of
the Premises shall remain undisturbed and Tenant's rights under this Lease shall
be recognized and shall not be adversely affected so long as Tenant is not in
default under this Lease.
26. ESTOPPEL CERTIFICATES
A. Within ten (10) days following any written request which Landlord may make
from time to time, Tenant shall execute and deliver to Landlord a statement
certifying: (i) the Commencement Date of this Lease; (ii) the fact that this
Lease is unmodified and in full force and effect (or, if there have been
modifications hereto, that this Lease is in full force and effect, and stating
the date and nature of such modifications); (iii) the date to which the Rent and
other sums payable under this Lease have been paid; (iv) that there are no
current defaults under this Lese by either Landlord or Tenant except as
specified in Tenant's statement; and (v) such other matters as are requested by
Landlord. Landlord and Tenant intend that any statement delivered pursuant to
this Section may be relied upon by any Mortgagee, ground lessor, purchaser or
prospective purchaser of the Building, the Property or any interest therein.
B. Tenant's failure to deliver such statement within such time shall be
conclusive upon Tenant (i) that this Lease is in full force and effect, without
modification except as may be represented by Landlord, (ii) that there are no
uncured defaults in Landlord's performance; and (iii) that not more than one (1)
month's Rent has been paid in advance, and Tenant hereby irrevocably appoints
Landlord as attorney-in-fact of Tenant to execute, deliver and record estoppel
certificates in the name and on behalf of Tenant.
27. HAZARDOUS WASTE
A. Presence and Use of Hazardous Substances.
Tenant shall not, without Landlord's prior written consent, keep on or around
the Project, Property, Premises, Common Areas or Building, for use, disposal,
treatment, transportation, generation, storage or sale or any other purpose, any
substances designated as, or containing components designated as hazardous,
dangerous, infectious, toxic or harmful (collectively referred to as "Hazardous
Substances") and/or is subject to regulation by any federal state or local law,
regulation, statute or ordinance. With respect to any such Hazardous Substance,
Tenant shall:
1. Comply promptly, timely, and completely with all governmental
requirements for reporting, keeping and submitting manifests, and
obtaining and keeping current identification numbers;
2. Submit to Landlord true and correct copies of all reports, manifests
and identification numbers at the same time as they are required to be
and/or are submitted to the appropriate governmental authorities;
3. Within five (5) days of Landlord's request, submit written reports to
Landlord regarding Tenant's use, storage, treatment, transportation,
generation, disposal or sale of Hazardous Substances and provide evidence
satisfactory to landlord of Tenant's compliance with the applicable
government regulations;
4. Allow Landlord or Landlord's agent or representative to come on the
Premises at all times to check Tenant's
LANDLORD ______ LANDLORD ______ LANDLORD ______ LANDLORD______ TENANT _______
Page 16
compliance with all applicable governmental regulations regarding Hazardous
Substances;
5. Comply with minimum levels, standards or other performance standards
or requirements which may be set forth or established for certain
Hazardous Substances (if minimum standards or levels are applicable to
Hazardous Substances present on the Premises, such levels or standards
shall be established by an on-site inspection by the appropriate
governmental authorities and shall be set forth in an Addendum to the
Lease); and
6. Comply with all applicable governmental rules, regulations and
requirements regarding the proper and lawful use, sale, transportation,
generation, storage, treatment, and disposal of Hazardous Substances. Any
and all costs incurred by Landlord and associated with Landlord's
inspection of Tenant's Premises and Landlord's monitoring of Tenant's
compliance with this Section 27 including Landlord's attorney's fees and
costs, shall be Additional Rent and shall be due and payable to Landlord
immediately upon demand by Landlord.
B. CLEANUP COSTS, DEFAULT AND INDEMNIFICATION.
1. Tenant shall be fully and completely liable to Landlord for any and
all cleanup costs, and any and all other charges, fees, penalties (civil
and criminal) imposed by any governmental authority with respect to
Tenant's use, disposal, storage, transportation, generation and/or sale
of Hazardous Substances, in or about the Project, Property, Premises,
Common Areas or Building.
2. Tenant shall indemnify, defend and save Landlord harmless from any and
all of the costs, fees, penalties and charges assessed against or imposed
upon Landlord (as well as Landlord's attorney's fees and costs) as a
result of Tenant's use, disposal, transportation, generation and/or sale
of Hazardous Substances.
3. Upon Tenant's default under this Section in addition to the rights and
remedies set forth elsewhere in this Lease, Landlord shall be entitled to
the following rights and remedies:
a. At Landlord's option, to terminate this Lease immediately; and/or
b. To recover any and all damages associated with the default,
including, but not limited to cleanup costs and charges, civil and
criminal penalties and fees, loss of business and sales by Landlord and
other tenants of the Building or Project, any and all damages and
claims asserted by third parties and Landlord's attorney's fees and
costs.
28. RULES AND REGULATIONS
Tenant shall faithfully observe and comply with the reasonable Rules and
Regulations, which may be promulgated by Landlord from time to time. Landlord
shall not be responsible to Tenant for the violation or non-performance by any
other tenant or occupant of the Building of any of said Rules and Regulations.
29. CONFLICT OF LAWS
This Lease shall be governed by and construed pursuant to the laws of the State
of Washington. Exclusive venue and jurisdiction of any dispute arising out of or
relating to the Lease, or Tenant's use and/or occupancy of the Premises, shall
be in the State Superior Court of Kitsap County, State of Washington.
30. SUCCESSORS AND ASSIGNS
Except as otherwise provided in this Lease, all of the covenants, conditions and
provisions of this Lease shall be binding upon and shall inure to the benefit of
the parties hereto and their respective heirs, personal representatives,
successors and assigns.
31. SURRENDER OF PREMISES
The voluntary or other surrender of this Lease by Tenant, or a mutual
cancellation thereof, shall not work a merger, and shall, at the option of
Landlord, operate as an Assignment to it of any or all subleases. Upon
expiration or termination of this Lease, Tenant shall peaceably surrender the
Premises and all alterations and additions thereto, broom clean the Premises,
remove all trade fixtures, leave the Premises in good order, repair and
condition, reasonable wear and tear excepted, and comply with the
LANDLORD ______ LANDLORD ______ LANDLORD ______ LANDLORD______ TENANT _______
Page 17
provisions herein. The delivery of keys to any employee of Landlord or to
Landlord's agent or any employee thereof shall not be sufficient to constitute a
termination of this Lease or surrender of the Premises.
32. PROFESSIONAL FEES
A. If Landlord should bring suit for possession of the Premises, for the
recovery of any sum due under this Lease, or because of the breach of any
provisions of this Lease, or for any other relief against Tenant hereunder, or
in the event of any other litigation between the parties with respect to this
Lease, or if Landlord incurs any legal or professional fees in its attempt to
enforce this Lease, whether or not such enforcement efforts proceed to the
filing of a lawsuit, then all reasonable costs and expenses, including without
limitation, its reasonable actual professional fees such as appraisers',
accountants', and attorneys' fees (including those on appeal), incurred therein
shall be paid by Tenant. If Landlord employs a collection agency to recover
delinquent charges, Tenant agrees to pay all reasonable collection agency fees
charged to Landlord in addition to Rent, late charges, interest and other
reasonable sums payable under this Lease.
B. If Landlord is named as a defendant in any suit brought against Tenant in
connection with or arising out of Tenant's occupancy hereunder, Tenant shall pay
to Landlord its costs and reasonable expenses incurred in such suit, including
without limitation, its actual reasonable professional fees such as appraisers',
accountants' and attorneys' fees.
33. PERFORMANCE BY TENANT
All covenants and agreements to be performed by Tenant under any of the terms of
this Lease shall be performed by Tenant at Tenant's sole cost and expense and
without any abatement of Rent except as specifically provided herein. If Tenant
shall fail to pay any sum of money owed to any party other than Landlord, for
which it is liable hereunder, or if Tenant shall fail to perform any other act
on its part to be performed hereunder, and such failure shall continue for ten
(10) days after notice thereof by Landlord, Landlord may, without waiving or
releasing Tenant from obligations of Tenant, but shall not be obligated to make
any such payment or perform any such other act to be made or performed by
Tenant. All sums so paid by Landlord and all incidental costs together with
interest thereon at the rate equal to the prime commercial rate of interest in
effect at the time of such payment as published from time to time by Bank of
America, Head Office, Seattle, Washington, plus two percent (2%), from the date
of such payment by Landlord, shall be payable by Tenant to Landlord on demand.
Tenant covenants to pay any such sums, and Landlord shall have (in addition to
any other rights or remedy of Landlord) all rights and remedies in the event of
the non-payment thereof by Tenant as are set forth in Section 23.
34. MORTGAGEES
If Tenant elects to terminate this Lease upon Landlord's default, Tenant must
notify any Mortgagee whose address shall have been furnished to Tenant, at least
ninety (90) days in advance of the proposed effective date of such termination.
For purposes of this lease, "Mortgagee" shall include all mortgages or holders
of a beneficial interest in a Deed of Trust constituting a lien on the Project
or any portion thereof. During this ninety (90) day period, the Mortgagee may
commence to curing the default. If the default cannot be cured within this
ninety (90) day period, the Lease shall to be terminated if the Mortgagee or
ground lessor have made diligent efforts to cure the default within said ninety
(90) day period and have made diligent efforts. If the default is one which is
not susceptible of cure by the Mortgagee within this ninety (90) day period
because the mortgagee is not in possession of the Building or property, this
ninety (90) day period shall be extended to include time needed to obtain
possession of the Premises by the Mortgagee by power of sale or a judicial
foreclosure or other legal means, provided that right to possession is pursued
with due diligence.
35. DEFINITION OF LANDLORD
The term "Landlord" as used in this Lease, so far as covenants or obligations on
the part of Landlord are concerned, shall be limited to mean and include only
the owner or owners, or a ground lessee, at the time in question, of the fee
title of the Premises. In the event of any transfer, assignment or other
conveyance or transfers of any such title, Landlord herein named (and in case of
any subsequent transfers or conveyances, the then grantor) shall be
automatically freed and relieved from and after the date of such transfer,
assignment or conveyance of all liability as respects the performance of any
covenants of this Lease, and the transferee(s), grantee(s) or assignee(s) shall
be deemed to have assumed and agreed to observe and perform any and all
obligations of Landlord hereunder. Landlord may assign or transfer its any and
all obligations of Landlord hereunder during its ownership of the Premises.
Landlord may transfer interest in the Premises without the consent of Tenant and
such transfer or subsequent transfer shall not be deemed a violation on
Landlord's part of any of the terms and conditions of this Lease.
LANDLORD ______ LANDLORD ______ LANDLORD ______ LANDLORD______ TENANT _______
Page 18
36. WAIVER
The waiver by Landlord or Tenant of any breach of any term, covenant or
condition herein contained shall not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant or condition herein contained,
nor shall any custom or practice which may grow up between the parties in the
administration of the terms hereof be deemed a waiver of or in any way affect
the right of Landlord to insist upon the performance by Tenant in strict
accordance with said terms. The subsequent acceptance by Landlord of Rent or
other payments due Landlord hereunder shall not be deemed to be a waiver of any
preceding breach by Tenant of any term, covenant or condition of this Lease,
other than the failure of Tenant to pay the particular Rent or other payment so
accepted regardless of Landlord's knowledge of such preceding breach at the time
of acceptance of such Rent. No acceptance by Landlord of a lesser sum than the
Rent or other sum then due shall be deemed to be other than on acount of the
earliest installment of such Rent or other sum then due, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such amount due or pursue any other remedy available to Landlord
pursuant to this Lease or otherwise. The consent or approval of Landlord to or
of any act by Tenant requiring Landlord's consent or approval shall not be
deemed to waive or render unnecessary Landlord's consent to or approval of any
subsequent similar acts by Tenant.
37. MEMORANDUM OF LEASE - RECORDATION:
Tenant shall not record this Lease without Landlord's prior written consent.
Both parties may make and record Memoranda of Lease, in form satisfactory to
Landlord's counsel, disclosing only names of parties, date of Lease, legal
description of Property and a sentence incorporating by reference all provisions
of this Lease. On termination, both parties each agree to cause an instrument ot
be recorded which terminates all of Tenant's right, title and interest in this
Lease.
38. PARKING
Tenant may park in the parking facilities upon the terms and conditions as may
from time to time be established by Landlord.
39. FORCE MAJEURE
Landlord shall have no liability whatsoever to Tenant on account of: (A) the
inability of Landlord to fulfill, or delay in fulfiling, any of Landlord's
obligations under this Lease by reason of strike, other labor trouble,
governmental preemption or priorities or other controls in connection with a
national or other public emergency, or shortages of fuel, supplies or labor
resulting therefrom or any other cause, whether similar or dissimilar to the
above, or acts of God, beyond Landlord's reasonable control; or (B) any failure
or defect in the supply, quantity or character of electricity, gas, water or any
other utility furnished to the Premises by reason of any requirements, act or
omission of any public or private utility or other entity furnishing the
Building with such utilities, or for any other reason, whether similar or
dissimilar to the above, beyond Landlord's reasonable control. If this Lease
specifies a time period for performance of an obligation of Landlord, that time
period shall be extended by the period of any delay in Landlord's performance
caused by any of the above-described or events of force majeure.
40. TERMS AND HEADINGS
The words "Landlord" and "Tenant" as used herein shall include the plural as
well as the singular. Words used in any gender include other genders. The
Section headings of this Lease are not a part of this Lease and shall have no
effect upon the construction or interpretation of any part hereof.
41. TIME
Time is of the essence with respect to the performance of every provision of
this Lease in which time of performance is a factor.
LANDLORD ______ LANDLORD ______ LANDLORD ______ LANDLORD______ TENANT _______
Page 19
42. PRIOR AGREEMENT OR AMENDMENTS
This Lease contains all of the agreements of the parties hereto with respect to
any matter covered or mentioned in the Lease and no prior agreement or
understanding pertaining to any such matter shall be effective for any purpose
unless contained in a writing executed by the party sought to be bound, on the
same date or a date subsequent to the execution of this Lease. No provisions of
this Lease may be amended or added to except by an agreement in writing signed
by the parties hereto or their respective successors-in-interest.
43. SEVERABILITY
Any provisions of this Lease which shall prove to be invalid, void or illegal in
no way affects, impairs or invalidates any other provisions hereof, and such
other provisions shall remain in full force and effect.
44. LIMITATION OF LIABILITY
In consideration of the benefits accruing hereunder, Tenant and all successors
and assigns covenant and agree that, in the event of an actual or alleged
failure, breach or default hereunder by Landlord:
1. The sole and exclusive remedy shall be against the Landlord's interest
in the Building and Property;
2. No trustee, partner, director, officer or shareholder of Landlord
shall be sued or named as a party in any suit or action (except as may be
necessary to secure jurisdiction of the partnership);
3. No service of process shall be made against any trustee, partner,
director, officer or shareholder of Landlord (except as may be necessary
to secure jurisdiction of the partnership or corporation);
4. No trustee, partner, director, officer or shareholder of Landlord
shall be required to answer or otherwise plead to any service of process;
5. No judgment will be taken against any trustee, partner, director,
officer or shareholder of Landlord;
6. Any judgment taken against any trustee, partner, director, officer or
shareholder of Landlord may be vacated and set aside at any time nunc pro
tunc;
7. No Writ of Execution will ever be levied against the assets of any
trustee, partner, director, officer or shareholder of Landlord;
8. The obligations of Landlord under this Lease do not constitute
personal obligations of the individual trustee, partners, directors,
officers or shareholders of Landlord, and Tenant shall not seek recourse
against the individual trustee, partners, directors, officers or
shareholders of Landlord or any of their personal assets for satisfaction
of any liability in respect to this Lease;
9. These covenants and agreements are enforceable both by Landlord and
also by any trustee, partner, director, officer or shareholder of
Landlord.
45. MODIFICATION
Notwithstanding anything to the contrary contained in this Lease, if, in
connection with obtaining construction, interim or permanent financing for the
Building and/or the Project, the Landlord's Lender shall request reasonable
modifications in this Lease as a condition to such financing, Tenant will not
unreasonably withhold, delay or defer its consent thereto, provided that such
modifications do not increase the obligations of Tenant hereunder or materially
adversely affect the leasehold interest created or Tenant's rights hereunder.
LANDLORD ______ LANDLORD ______ LANDLORD ______ LANDLORD______ TENANT _______
Page 20
46. QUIET ENJOYMENT
Landlord covenants and agrees with Tenant that upon Tenant paying the Rent
required under this Lease and paying all other charges and performing all of the
covenants and provisions aforesaid on Tenant's part to be observed and performed
under this Lease, and if Tenant is in compliance with the Rules and Regulations
and Conditions, Covenants and Restrictions, Tenant shall and may peaceably and
quietly have, hold, and enjoy the Premises in accordance with the Lease,
provided that, Tenant's rights hereunder shall be subject to the provisions
herein with respect to start-up inconveniences.
47. TENANT AS CORPORATION
If Tenant executes this Lease as a corporation, then Tenant and the person
executing this Lease on behalf of Tenant represent and warrant that the
individuals executing this Lease on Tenant's behalf are duly authorized to
execute and deliver this Lease on its behalf in accordance with a duly adopted
resolution of the Board of Directors of Tenant, a copy of which is to be
delivered to Landlord on execution hereof, and in accordance with the Bylaws of
Tenant and that this Lease is binding upon Tenant in accordance with its terms.
48. MISCELLANEOUS PROVISIONS
Any term of this Lease, which requires Landlord's consent or approval, shall be
construed to include the following words:
"which consent or approval shall not be unreasonably withheld"
LANDLORD: PLAZA 305 Associates
---------------------------------- -----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇ Date ▇▇▇▇ ▇▇▇▇▇▇ Date
---------------------------------- -----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇ Date ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Date
TENANT: eACCELERATION CORPORATION
By: By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------- ------------------------------
Date: Date: 3/12/04
---------------------------- ------------------------------
LANDLORD ______ LANDLORD ______ LANDLORD ______ LANDLORD______ TENANT _______
Page 21
EXHIBIT "A"
[FLOOR PLAN INSERTED HERE]
LANDLORD ______ LANDLORD ______ LANDLORD ______ LANDLORD______ TENANT _______
Page 22
EXHIBIT "A-1"
LEGAL DESCRIPTION
Plaza 305 Building, located at Highway 305 and Lincoln Hill Road, Poulsbo,
Kitsap County, Washington, more legally described as follows: A portion of the
Northwest quarter of the Northeast quarter, Section 23, Township 26 North, Range
1 East, ▇.▇., lying East of Fifth Avenue, South of Lincoln Street and West of
State Highway 305 being more particularly described as follows: Beginning at the
North Quarter corner of said Section 23; thence S 1*37'20" W along the
centerline of said Section 23, 671.89 feet; thence S 89*20'54" E 15.00 feet
to the true Point of Beginning, a point on the East right of way of Fifth
Avenue; thence continuing S 89*20'54" E 250.34 feet to the West margin of
State Highway 305; thence Northerly along said West margin 425 feet, more or
less to the thread of an unnamed stream; thence Westerly along the thread of
said unnamed stream as it existed on March 3, 1947, to the Southerly margin of
Lincoln Street; thence S51*16'59" W along said Southerly margin 135 feet,
more or less to the East right of way of Fifth Avenue; thence S 1*37'20" W
along said right of way 339.77 feet to the True Point of Beginning.
LANDLORD ______ LANDLORD ______ LANDLORD ______ LANDLORD______ TENANT _______
Page 23
EXHIBIT "B"
DESCRIPTION OF LANDLORD'S WORK AND TENANT'S WORK
DESCRIPTION OF LANDLORD'S WORK
Tenant accepts the premises in "As-Is" condition
DESCRIPTION OF TENANT'S WORK
EXCEPT as provided under "Description of Landlord's Work" all work in the
Premises shall be provided by or for Tenant at Tenant's sole expense. Tenant
will construct the Tenant Improvements in accordance with applicable building
and zoning laws. Tenant must obtain prior approval from Landlord. Tenant accepts
the premises in "As-Is" condition. Tenant shall have and maintain insurance as
set forth in Section 20 prior to commencing any Tenant Improvements.
LANDLORD ______ LANDLORD ______ LANDLORD ______ LANDLORD______ TENANT _______
Page 24
EXHIBIT C
[DEMISING PLAN OF PREMISES INSERTED HERE]
LANDLORD ______ LANDLORD ______ LANDLORD ______ LANDLORD______ TENANT _______
Page 25
EXHIBIT "D"
BROKER'S DISCLOSURE
At the signing of this Lease Agreement the ▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc. represent the
Landlord and Windermere Commercial represents the Tenant. Each party signing
this Lease confirms that prior oral and/or written disclosure of agency was
provided to them.
The foregoing Lease was prepared at the request of, and for the convenience of
the parties herein. The brokers are not acting as legal counsel and make no
warranties as to the legality of completeness of the document or its contents.
The parties are advised to see their accountant and attorney.
Both Landlord and Tenant are recommended and are strongly urged by brokers
herein to obtain legal counsel to review this Lease. No real estate broker
herein involved assumes any liability for preparation of documents and by
signature hereon by Landlord and Tenant acknowledge they had legal advice and
hold all brokers harmless from all transactions and guarantees as related to
this transaction.
Landlord/Tenant are hereby advised that Broker does not have specific knowledge
of, and has not investigated, whether the subject property is appropriately
zoned for the Tenant's planned use. It is the responsibility of the Tenant to
confirm that it's use is permissible in the subject property. Tenant
acknowledges that Broker has made no warranties or representations that Tenant
is specifically relying on.
LANDLORD ______ LANDLORD ______ LANDLORD ______ LANDLORD______ TENANT _______