EXHIBIT 10.13
OFFICE LEASE
In consideration of the rents and covenants set forth below, this Lease is
made in duplicate this 11th day of September, 2003, between the Xxxxx Family
Limited Partnership, L.P., by and through Xxxxxxx X. Xxxxx, General Partner,
hereinafter referred to as "Landlord," and eAcceleration Corporation,
hereinafter referred to as "Tenant."
RECITALS
A. Landlord is owner of the real property known as Olympic Place II, the
street address of which is 0000 Xxxxxxxx Xxxxxx, Xxxxxxx, XX 00000, and which is
leased for commercial office space and legally described on Exhibit A attached
hereto.
B. Tenant desires to take possession of the leased premises hereunder
described for the purpose of a business office and training center and for no
other business or purposes without the written consent of the Landlord.
LEASE TERMS AND CONDITIONS
1. Commencement of lease and occupancy:
The Landlord agrees that the premises shall be made ready for occupancy,
and the Tenant agrees to occupy the premises at the joint signing of this lease,
and to commence the payment of rent on January 1, 2004.
2. Premises:
The Landlord hereby leases and demises unto the Tenant, and the Tenant
hereby leases and takes from the Landlord, for the term, at the rental, and upon
the covenants and conditions hereinafter set forth, the office space referred to
herein as the "premises," and described as Suite 204 of the second level of
Olympic Place II consisting of approximately 1,568 square feet.
3. Term:
The term of this lease shall commence upon the joint signing of this lease,
terminating on the 31st day of January 2007. Rent shall not commence until
January 1, 2004. If the Lease has been and continues to be in good standing,
Tenant, with one hundred twenty (120) day written notice to Landlord prior to
the expiration date of this Lease, shall have the option to renew this Lease for
additional three year term under the same terms and conditions except for rent
which shall be negotiated and agreed to ninety (90) days prior to the expiration
of this Lease. If the parties cannot agree within the time allowed then they
shall agree on an arbitrator to set rent fr the renewal term, or failing to
agree on an arbitrator, either party may apply to the Kitsap County Superior
Court for the designation of an arbitrator to set rent for the renewal term. If
the Lease has been and continues to be in good standing, Tenant, with one
hundred twenty (120) day written notice to Landlord prior to the expiration date
of the first option period, shall have the option to renew this Lease for a
second additional three year term under the same terms and conditions except for
rent which shall be negotiated and agreed to ninety (90) days prior to the
expiration of the first optioned period. If the parties cannot agree within the
time allowed then they shall agree on an arbitrator to
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set rent for the renewal term, or failing to agree on an arbitrator, either
party may apply to the Kitsap County Superior Court for the designation of an
arbitrator to set rent for the renewal term. Tenant shall have the right to
cancel this Lease during the last two years of the initial term by providing at
least six (6) months written notice to Landlord and the payment of any
unamortized leasing commissions and tenant improvements. In the event the
Landlord for any reason is unable to deliver said premises on the date
specified, the Lease shall not be void or voidable, but rent shall be abated in
the proportion to the term delay in the availability of said premises. Inability
to deliver said premises on the date above stated shall not effect the
termination date as stated in this paragraph.
4. Rent:
Annual Rental: Tenant shall pay to Landlord during the term of this Lease
as rental for the premises the following:
Year 1: 1/1/04 through 1/31/05 $2,600 per month (13 months)
Year 2: 2/1/05 through 1/31/06 $2,680 per month
Year 3: 2/1/06 through 1/31/07 $2,750 per month
All rental to be paid by Tenant to the Landlord shall be in lawful money of the
United States of America and shall be paid without deduction or offset, prior to
notice or demand at Xxxxx Family Limited Partnership, L.P., XX Xxx 00000,
Xxxxxxxxxx Xxxxxx, XX 00000, or at such other place as Landlord may hereafter
designate. There will be a $130.00 late charge for any check received after the
10th of the month. There will also be an interest charge of 1 1/2% per month on
any unpaid balance over 30 days.
5. Costs of Operations and Real Estate Taxes:
(a) Definitions. In addition to the Rent provided in Section 4 of the
Lease, Tenant shall pay to Landlord increases under this Section 5 as
"additional rent," utilizing the following definitions:
(i) "Operating Costs" shall mean:
(1) Taxes on real property and personal property; charges and
assessments levied with respect to the Land, the Building, any improvements,
fixtures and equipment, and all other property of Landlord, real or personal,
used directly in the operation of the Building; and any taxes levied or assessed
in addition to or in lieu of, in whole or in part, such real property or
personal property taxes, or any other tax upon leasing of the Building or rents
collected, but not including any federal or state income, estate, inheritance or
franchise tax; and
(2) All other expenses paid or incurred by Landlord for obtaining
services and products for maintaining, operating and repairing the Building and
the personal property used in conjunction therewith, including without
limitation, the costs of garbage collection, water, sewer and other utility
services, electricity, gas and other similar energy sources, supplies,
janitorial and cleaning services, window washing, landscape maintenance,
services of independent contractors, compensation (including employment taxes
and fringe benefits) of all persons who perform duties in connection with the
operation, maintenance and repair of the Building, its equipment and the Land
upon which it is situated, insurance premiums, licenses, permits and inspection
fees, customary management fees, legal and accounting expenses and any other
expenses or charges whether or not hereinabove described, which in accordance
with generally accepted accounting and
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management practices would be considered an expense of maintaining, operating or
repairing the Building, excluding or deducting, as appropriate:
(A) Costs of any special services rendered to individual tenants
(including Tenant) for which a special charge is collected;
(ii) "Lease year" shall mean the twelve-month period commencing
January 1 and ending December 31.
(iii) "Actual Operating Costs" means the actual expenses paid or
incurred by Landlord for Operating Costs during any Lease Year of the term
hereof.
(iv) "Actual Operating Costs Allocable to the Premises" means the
tenant's share of the Actual Operating Costs determined by multiplying Tenant's
Percentage of the Building by the Actual Operating Costs.
(v) "Estimated Operating Costs Allocable to the Premises" means
Landlord's estimate of Actual Operating Costs Allocable to the Premises for the
following Lease Year to be given by Landlord to Tenant pursuant to Section
5(b)(i) below.
(vi) "Base Service Year" shall be 2003. Because the space being leased
hereunder has been vacant, the parties agree that the base expenses, above which
Lessee shall pay, shall be 4.6% of the total building expenses for 2003.
(b) Additional Rent for Estimated Increases in Operating Costs.
(i) At the beginning of each Lease Year after the Base Service Year,
during the term hereof, Landlord shall furnish Tenant a written statement of the
Estimated Operating Costs Allocable to the Premises for such Lease Year, and a
calculation of the Additional Rent as follows: One-twelfth (1/12) of the amount,
if any, by which such amount exceeds the Operating Costs Allocable to the
Premises for the Base Service Year shall be Additional Rent payable by Tenant as
provided in Section 4 for each month during such lease Year.
(ii) Within ninety (90) days after the close of each Lease Year during
the term hereof for which an estimated statement was delivered to Tenant
pursuant to subsection (b) (i) above, or as soon thereafter as practicable,
Landlord shall deliver to Tenant a written statement setting forth the Actual
Operating Costs Allocable to the Premises during the preceding Lease Year or
such prorated portion thereof if this Lease commenced or terminated on a day
other than the first or last day of a Lease Year (based on a 365 day Lease
Year). If such costs for any Lease Year exceed Estimated Operating Costs
Allocable to the Premises paid by Tenant to Landlord pursuant to subsection
(b)(I), Tenant shall pay the amount of such excess to Landlord as Additional
Rent within thirty (30) days after receipt of such statement by Tenant. If such
statement shows such costs to be less than the amount paid by Tenant to Landlord
pursuant to subsection (b)(i), then the amount of such overpayment by Tenant
shall be credited by Landlord to the next Rent payable by Tenant.
(c) Determinations. The determination of Actual Operating Costs and
Estimated Operating Costs allocable to the Premises shall be made by Landlord.
Landlord or its agent shall keep records in reasonable detail showing all
expenditures made for the items enumerated above, which records shall be
available for inspection by Tenant at any reasonable time.
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(d) Base Rent. Notwithstanding anything to the contrary in this Section
5, the Rent payable by Tenant shall in no event be less than the Rent specified
in section 4 of this Lease.
(e) Tenant's Percentage of the Building. 4.6% calculated by dividing
the areas of the Premises (1,568 net rentable square feet) by the area of the
Building (34,190) net rentable square feet).
6. DEPOSIT:
Tenant shall deposit with Landlord upon execution of this lease the sum
of $2,600.00 as security for Tenant's faithful performance of Tenant's
obligations hereunder. If Tenant fails to pay rent or other charges due
hereunder, or otherwise defaults with respect to any provisions of this lease,
Landlord may, without notice to Tenant, use, apply or retain all or any portion
of said deposit for the payment of any rent or other charges in default or for
the payment of any other sum to which Landlord may become obligated by reason of
Tenant's default or to compensate Landlord for any loss or damage which Landlord
may suffer thereby, including costs of storing Tenant's personal property upon
execution of termination of this lease. If Landlord so uses or applies all or
any portion of said deposit, Tenant shall within five (5) days after written
demand therefore deposit cash with Landlord | an amount sufficient to restore
said deposit to the full amount hereinabove stated, The deposit referenced
herein shall not be maintained in a segregated account and will not accrue
interest for the benefit of the Tenant. If Tenant performs all of Tenant's
obligations hereunder, said deposit or so much thereof as has not theretofore
been applied by Landlord shall be returned, without payment of interest or other
increment for its use, to Tenant (or at Landlord's option, to the last assignee,
if any, of Tenant's interest hereunder) within sixty (60) days of either the
expiration of the term hereof or after Tenant has vacated the premises,
whichever is later. Landlord shall deliver the funds deposited herein to the
purchaser of the building, in the event the building is sold (or give such
purchaser a credit against the purchase price in the amount of such deposit) and
thereupon Landlord shall be discharged from all further liability with respect
to such deposit.
7. SERVICES.
The Landlord, so long as Tenant is not in default of any provisions of
this Lease, shall furnish the leased premises with a self-service elevator, and
shall, during the ordinary business hours provide heating and air conditioning,
water, electrical current for normal office equipment, and garbage pickup in
reasonable amounts for office purposes. Ordinary business hours are defined at
Monday through Friday, 7:30 am to 6:00 pm.
Janitorial services and supplies for the leased premises shall not be provided
by the landlord and shall be the responsibility of the Tenant. The Landlord
shall not be liable for any losses or damages caused by or resulting from any
interruption or failure of any municipal utility service, or as the result of
mechanical breakdown of elevator, heating or air conditioning due to causes
beyond the control or responsibility of the Landlord, and no such temporary
interruption or temporary failure of such services incident to restoring
services to the building or due to accident or strike or other conditions or
events not under Landlord's control or responsibility, shall be deemed an
eviction of the Tenant or relieve the Tenant of any of the Tenant's obligations
hereunder. (If Tenant uses more than normal power for office use due to special
equipment or longer than regular business hours, then Tenant will pay the
difference in costs for said extra power use,)
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8. ACCEPTANCE OF PREMISES AND REPAIRS:
The Tenant accepts the premises in its present condition except for
those items specified in Addendum B. All normal repairs necessary to maintain
premises in a tenantable condition shall be done by or under the direction of
the Landlord, at Landlord's expense, except those caused by negligence or acts
of Tenant, his agents or invitees, which repairs shall be made at sole cost of
Tenant. Landlord shall be the sole judge of what repairs are necessary. Tenant
will at all times keep the premises neat, clean and in a sanitary condition.
Except for reasonable wear and tear and damage by unavoidable casualty, Tenant
will at all times preserve said premises in as good a repair as they now are or
may hereafter be put to. Tenant agrees that at the expiration or sooner
termination of this Lease, Tenant will quit and surrender the said premises in a
neat and clean condition and will deliver up all keys belonging to said premises
to the Landlord or Landlord's agent.
9. CARE OF PREMISES:
The Landlord shall not be called upon to make any improvements of any
kind upon said premises. The premises shall at all times be kept and used in
accordance with the laws of the State of Washington and ordinances of the City
of Poulsbo, and in accordance with all directions, rules and regulations of the
health officer, fire xxxxxxxx, building inspector, or other proper officer of
the City of Poulsbo at the sole cost and expense of Tenant, and Tenant will
permit no waste, damage or injury to the premises; nor will Tenant maintain
anything that might be dangerous to life or limb or to overload the floors or
permit any objectionable noise or odor to escape from said premises, or permit
anything to be done upon the leased premises in any way that will tend to create
a nuisance or to disturb any other tenant of the building, or use or permit the
use of the premises for any illegal purpose. The Landlord will make all repairs
they, at their sole discretion, shall deem reasonably necessary for the
continued operation of the building unless otherwise provided in this agreement.
10. ACCIDENTS:
All personal property on said leased premises shall be at the risk of
Tenant. Landlord shall not be liable for any damage, either to person or
property, sustained by Tenant or others, caused by any defects now in said
premises or hereafter occurring therein, or due to the condition of any
buildings hereafter erected to any part or appurtenance thereof becoming out of
repair, or caused by fire or by the bursting or leaking water, gas, sewer or
steam pipes. Tenant agrees to defend and hold Landlord and Landlord's agent
harmless from any and all claims arising out of Tenant's negligence for damages
suffered or alleged to be suffered in or about the leased premises by any
person, firm or corporation. Tenant shall defend, indemnify and hold Landlord
harmless from and against any claim, loss, expense or damage to any person or
property in or upon the demised premises or any area allocated to or used
exclusively by the Tenant or its agents, employees, or invites arising out of
Tenant's use or occupancy of said premises, or any act of neglect of Tenant or
Tenant's servants, employees, or agents, or any change, alteration or
improvement made by Tenant in the demised premises, including injury to persons
or damage to property occasioned in part but not wholly by defect in premises.
11. USE:
The Tenant shall conduct and carry on in said premises, continuously
during the term hereof, the business for which said premises are leased, and
shall not use the premises for lodging or sleeping purposes, or any illegal
purposes. The Tenant agrees that no stock of goods will be
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carried, or anything done in or about the premises which will increase the
present rate of insurance, provided, however, if the Tenant shall engage in such
business with the consent of the Landlord, which business shall increase
insurance rates, Tenant shall pay such increase. The Tenant agrees that no
hazardous materials as defined in WAC 173-303 as currently adopted or as may be
amended and RCW 70.105D.020(5) will be handled, stored or disposed of within the
leased premises or common areas of the building. Tenant agrees that it has
determined to Tenant's satisfaction that the premises can be used for the
purpose for which they are leased and waived any right to terminate this lease
in the event the premises cannot be used for such purposes or for any reason may
not be used for purposes during the term of this Lease.
12. LIENS AND INSOLVENCY:
Tenant shall keep the leased premises and the property in which the
leased premises are situated, free from any liens arising out of any work
performed, materials furnished or obligations incurred by Tenant. In the event
Tenant becomes insolvent, voluntarily or involuntarily bankrupt, or if a
receiver, assignee or other liquidating officer is appointed for the business of
the Tenant, then the Landlord may cancel this Lease at Landlord's option.
13. ASSIGNMENT:
Tenant shall not assign this Lease or any part hereof and shall not let
or sublet the whole or any portion of the premises without the prior written
consent of Landlord or Landlord's agent. Such consent shall not be unreasonably
withheld. However, Landlord may reasonably consider the financial condition,
nature of business activities and need for modifications to the premises in
exercising its reasonable decision to allow or disallow a proposed assignment.
This Lease shall not be assignable by operation of law. If Tenant is a
corporation, then any transfer of this Lease from Tenant by merger,
consolidation or liquidation, and any change in the ownership of, or power to
vote, the majority of its outstanding voting stock shall constitute an
assignment for the purposes of this paragraph. Any assignment of this Lease
shall not extinguish or diminish the liability of the Tenant herein. If consent
is once given by the Landlord to the assignment of this Lease, or any interest
herein, Landlord shall not be bound from afterwards refusing to consent to any
further assignment.
14. ACCESS:
Tenant will allow Landlord or Landlord's agent free access at all
reasonable times to said premises for the purpose of inspection or of making
repairs, additions or alterations to the premises or any property owned by or
under control of the Landlord, but this right shall not be construed as an
agreement on the part of the Landlord to make repairs, additions or alterations.
The Landlord shall have the right to show the premises to prospective tenants
during business hours only for ninety (90) days prior to the expiration of this
Lease.
15. POSSESSION:
In the event of the inability of Landlord to deliver possession of the
premises, or any portion thereof, at the time of commencement of the term of
this Lease, neither Landlord nor Landlord's agent shall be liable for any damage
caused thereby, nor shall this lease thereby become void but can be voidable,
nor shall the term herein specified be in any way extended, but in such event,
Tenant shall not be liable for any rent until such time as Landlord can deliver
possession of the premises to the Tenant. Tenant agrees to accept same at such
time and both Landlord and Tenant
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agree to be bound by all of the provisions and obligations hereunder during such
prior period, except that no rental shall be payable for such prior period.
16. DAMAGE OR DESTRUCTION:
In the event that the premises are damaged to such an extent as to
render the same untenantable in whole or in a substantial part thereof or are
destroyed so as to render the premises untenantable for the stated purposes, it
shall be optional with the Landlord or Tenant to terminate this Lease. After the
happening of any such contingency, the Tenant shall give the Landlord or
Landlord's agent immediate written notice thereof. Landlord shall have no more
than 30 days after date of such notification to notify the Tenant in writing of
Landlord's intentions to repair or rebuild said premises, or the part so damaged
as aforesaid, and if Landlord elects to repair or rebuild said premises,
Landlord shall prosecute the work of such repairing or rebuilding without
unnecessary delay and during such period, the rent of said premises shall be
abated in the same ratio that the portion of the premises rendered for the time
being unfit for occupancy shall bear to the whole of the leased premises. If the
Landlord shall fail to give notice aforesaid, and if the remises have been
rendered untenantable in whole or in substantial part, Tenant shall have the
right to declare this lease terminated by written notice served upon the
Landlord or Landlord's agent.
In the event the building in which the premises hereby leased are located
shall be damaged (even though the premises hereby leased shall not be damaged
thereby) to such an extent that in the opinion of the Landlord it shall not be
practicable to repair or rebuilt, or is destroyed, then it shall be optional
with the Landlord to terminate this Lease by written notice served within 30
days after such damage or destruction.
If the whole or any part of the demised premises shall be acquired or
condemned by Eminent Domain for any public or quasi-public use or purpose, then
and in that event, the term of the lease shall cease and terminate from the date
of title vesting in such proceeding and Tenant shall have no claim for the value
of any unexpired term of said lease.
17. NOTICES:
All notices to be given by the parties hereby shall be in writing and may
either be delivered: (a) personally, or (b) by depositing same in the United
State Mail, postage prepaid, regular mail and certified or registered mail. If
such notice is to be given to the Landlord, the notice shall be addressed to the
Landlord or Landlord's agent. If such notice is to be given to Tenant, notice
may be addressed to Tenant at the leased premises or at such other address as
Tenant may direct in writing.
18. GOVERNMENTAL FEES (TAXES):
The Tenant shall pay prior to delinquency all taxes assessed against and
levied upon leasehold improvements, fixtures, furnishings, equipment, and all
other personal property of Tenant contained in the premises or elsewhere. Tenant
shall cause said leasehold improvements, trade fixtures, furnishings, equipment
and all other personal property to be assessed and billed separately from the
real property of Landlord. If any of Tenant's personal property shall be
assessed with Landlord's real property, Tenant shall pay Landlord taxes
attributable to Tenant within ten (10) days after receipt of written notice from
Landlord setting forth the taxes applicable to Tenant's property, and if Tenant
fails to do so, Landlord may make such payment and the amount so paid, together
with interest thereon from the date paid shall be additional rent and shall be
due and payable to
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Landlord on the next succeeding date on which a base rental installment is due.
19. SIGNS:
All signs or symbols placed in the windows or doors of the premises, or
upon any exterior part of the building by the Tenant shall be subject to the
prior written approval of the Landlord or Landlord's agent. Any signs so placed
on the premises shall be so placed with the understanding and agreement that
Tenant will remove same at the termination of the tenancy herein created and
repair any damage or injury to the premises caused thereby and if not so removed
by Tenant then Landlord may have same so removed and undertake such repairs and
restorative work at Tenant's expense.
20. ALTERATIONS:
Tenant shall not make any material alterations, additions or
improvements, including painting, in said premises or in common areas
without the prior consent of Landlord in writing, and all alterations, additions
and improvements which shall be made shall be at the sole cost and expense of
Tenant, and shall become the property of the Landlord and shall remain in and be
surrendered with the premises as a part thereof at the termination of this
Lease, without disturbance, molestation or injury. If the Tenant shall perform
work with the consent of the Landlord as aforesaid, Tenant agrees to comply with
all laws, ordinances, rules and regulations of the City of Poulsbo, Kitsap
County, or any other authorized public authority. The Tenant further agrees to
save the Landlord free and harmless from damage, loss or expense arising out of
the said work. Tenant agrees that Landlord has the right, though not the duty,
to make alterations to the premises and to the building in which the premises
are situated, and Landlord shall not be liable for any damage which Tenant might
suffer by reason of such undertaking. See Addendum B for Tenant improvement
provisions.
21. DEFAULT AND RE-ENTRY:
If Tenant fails to keep or perform any covenants and agreements herein
contained, then the same shall constitute a breach hereof, and if Tenant has not
remedied such breach within three (3) business days after written notice thereof
with respect to monetary obligations of Tenant, and within ten (10) calendar
days after written notice with respect to nonmonetary obligations of Tenant,
then Landlord may, at its option, without further notice or demand:
(a) Cure such breach for the account and at the expense of Tenant, and such
expense shall be deemed additional rent due on the first of the following month;
or
(b) re-enter the premises, remove all persons therefrom, take possession of
the premises and remove all equipment, fixtures and personal property therein at
Tenant's risk and expense, and (1) terminate this lease, or (2) without
terminating the lease or in any way affecting the rights and remedies of
Landlord or the obligations of Tenant, relet the whole or any part of the
premises, as agent for Tenant, upon such terms and conditions and for such term
as Landlord may deem advisable, in which event the rents received shall first be
applied to the costs and expenses of reletting, including necessary repairs and
removal of Tenant's improvements and any real estate commission incurred, the
balance of such rent shall be applied toward payment of all sums due or to
become due to Landlord hereunder, and Tenant shall pay monthly to Landlord any
deficiency; however, Landlord shall not be required to pay any excess to Tenant.
For purposes of determining
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such deficiency, monthly percentage rent shall be included by taking the average
percentage rent during the 12 months preceding the default or breach by Tenant.
The failure of Landlord to terminate this lease at any time for the breach
of any of the terms hereof shall be deemed only an indulgence by Landlord, and
shall not be construed to be a waiver of rights of Landlord as to any continued
or subsequent breach. All past due amounts owing to Landlord under this lease
including rent shall be assessed interest at an annual percentage rate of
eighteen percent (18%) from the date due or date of invoice, whichever is
earlier, until paid, and shall be in addition to the late charge referenced in
paragraph 4 of this lease.
The above remedies are cumulative and in addition to any other remedies
now or hereinafter allowed by law or elsewhere provided in this lease.
22. COSTS AND ATTORNEYS FEES:
If by reason of any default on the part of the Tenant it becomes
necessary for the Landlord to employ an attorney or in case Landlord shall bring
suit to recover any rent due hereunder, or for breach of any provision of this
Lease or to recover possession of the leased premises, or if Tenant shall bring
any action for any relief against Landlord, declaratory or otherwise, arising
out of this Lease, the prevailing party shall have and recover against the other
party in addition to the cost allowed by law, such sum as the court may adjudge
to be a reasonable attorney's fee. In the event the Tenant defaults in the
payment of rental, the Tenant agrees to pay for the cost of any collection
agency, or attorney, employed by the Landlord.
23. REMOVAL OF PROPERTY:
Upon court order or abandonment, in the event of any entry in or taking
possession of, the leased premises, the Landlord shall have the right, but not
the obligation, to remove from the leased premises all personal property located
therein, and may store the same in any place selected by Landlord, including but
not limited to a public warehouse or other space owned or controlled by Landlord
or managed by agent, at the expense and risk of the owners of such personal
property, and the expense and/or risk of Tenants with the right to sell such
stored property, without notice to Tenant, after it has been stored for a period
of thirty (30) days or more, the proceeds of such sale may be applied first to
the cost of such sale, second to the payment of the charges for storage, if any,
and third to the payment of other sums of money which may then be due from
Tenant to Landlord under any of the terms hereof, the balance, if any, to be
paid to Tenant. Tenant hereby waives all claims for damages that may be caused
by Landlord's re-entry and taking possession of the remises or removing and
storing the property of Tenant as provided in this Lease, and will hold Landlord
harmless from loss, costs or damage occasioned by Landlord thereof, and no such
reentry shall be considered or construed to be a forcible entry.
24. NON-WAIVER OF BREACH:
The failure of the Landlord or Tenant to insist upon strict performance of
any of the covenants and agreements of this Lease, or to exercise any option
herein conferred in any one or more instances, shall not be construed to be a
waiver or relinquishment of any such, or any other covenants or agreements, but
the same shall be and remain in full force and effect.
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25. HEIRS AND SUCCESSORS:
Subject to the provisions hereof pertaining to assignment and subletting,
the covenants and agreements of this Lease shall be binding upon the heirs,
legal representatives, successors and assigns of any or all of the parties
hereto.
26. HOLDOVER:
If the Tenant shall, with the written consent of Landlord, hold over after
the expiration of the terms of this Lease, such tenancy shall be for an
indefinite period of time on a month-to- month tenancy, which tenancy may be
terminated as provided by eh Laws of the State of Washington. During such
tenancy, Tenant agrees to pay to the Landlord the same rental as set forth
herein unless the Landlord shall, upon 20 days notice, notify Tenant in writing
of an adjustment in rent claimed during such holdover tenancy, in which case
such adjusted rent shall be effective on the first day of the month following
the twenty (20) days notice period. Tenant agrees to be bound by all of the
terms, covenants and conditions as herein specified, so far as applicable.
27. SUBORDINATION:
This Lease is subject and is hereby subordinated to all present and future
mortgages, deed of trust, and other encumbrances affecting the demised premises
of the property of which said premises are a part. The Tenant agrees to execute
at no expense to the Landlord any documentation reasonably necessary to further
effect the subordination of this Lease to any mortgage, deed of trust or
encumbrances. Tenant hereby irrevocably appoints and constitutes the Landlord as
the true and lawful attorney of the Tenant at any time for Tenant and in
Tenant's name, place and stead, to execute proper subordination agreements to
this effect.
28. ESTOPPEL CERTIFICATES:
Tenant shall, within five (5) business days following written notice by the
Landlord, execute, acknowledge and deliver to the Landlord a statement in
writing certifying that this Lease is unmodified and in full force and effect
(or, if there have been modifications, that the same is in full force and effect
as modified and stating the modifications), and the dates to which the rent and
other payments due hereunder from the Tenant have been paid in advance, if any,
and stating whether or not to the best knowledge of the Tenant, the Landlord is
in default in the performance of any covenant, agreement or condition contained
in this Lease, and, if so, specifying each such default of which the signer may
have knowledge.
29. MUTUAL WAIVER OF SUBROGATION:
Landlord and Tenant shall each procure an appropriate clause in, or an
endorsement on, any policy of fire or extended coverage insurance covering the
Premises and the Olympic Place II Building, and the personal property, fixtures,
and equipment located in or on the Premises, pursuant to which the insurance
companies waive subrogation or consent to waiver of right of recovery, and
conditioned upon either party to this Lease having obtained such clauses or
endorsements or waiver of subrogation or consent to a waiver of right to
recovery, such party hereby agrees that it shall not make any claim against or
seek to recover from the other for any loss or damage to its property, or the
property of the other, resulting from fire or other hazards covered by such
insurance, notwithstanding other provisions of this Lease; provided, however,
that the release, discharge, exoneration and covenant not to xxx herein
contained shall be limited by the terms and provisions
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of the waiver of subrogation clauses or endorsements consenting to a waiver of
right to recovery, and shall be coextensive therewith. If either Landlord or
Tenant is unable to obtain such a clause or endorsement, such party shall
promptly give the other party notice of such inability.
30. BROKER:
Tenant and Landlord each warrant to the other that they have had no
dealings with any broker or agent in connection with this Lease, and each
covenants to pay, hold harmless and indemnify the other from and against any and
all cost, expense or liability claimed by any broker or agent with respect to
this Lease or the negotiation thereof with whom they had dealings,
31. INSURANCE:
Tenant agrees that during the term of this Lease, and for any option
periods thereafter, Tenant, at his sole cost and expense, and for the mutual
benefit of Landlord and Tenant, shall carry and maintain the following types of
insurance for the premises Leased in the amounts specified.
a) Bodily Injury and Property Damage Liability Insurance with a combined
single limit for bodily injury and property damage of not less than
$1,000,000.00.
b) Fire and Extended Coverage Insurance, including vandalism and malicious
mischief coverage, in an amount equal to the full replacement value of all
fixtures, furniture and improvements installed by or at the expense of Tenant.
The aforementined minimum limits policies shall in no event limit the
liability of Tenant hereunder. The aforesaid insurance shall name Landlord as an
additional insured. Said insurance shall be with companies having a rating of
not less than AAA in "Best's Insurance Guide." Tenant shall furnish from the
insurance companies or cause the insurance companies to furnish certificates of
coverage. No such policy shall be cancelable or subject to reduction of coverage
or other modification or cancellation except after thirty (30) days prior
written notice to Landlord by the insurer. All policies shall be written as
primary policies and not as contributing policies and shall not be written so as
to provide coverage only in excess of coverage which the Landlord may carry.
Tenant shall, at least twenty (20) days prior to the expiration of such
policies, furnish Landlord with renewals or binders. Tenant agrees that if
Tenant does not take out and maintain such insurance, Landlord may (but shall
not be required to) procure said insurance on Tenant's behalf and charge Tenant
the premiums together with a twenty-five percent (25%) handling charge, payable
upon demand. Tenant shall have the right to provide such insurance coverage
pursuant to blanket policies obtained by Tenant provided such blanket policies
expressly afford coverage to the premises and to Tenant as required by this
Lease.
32. LANDLORD'S LIMITED LIABILITY:
Notwithstanding any provision in this Lease to the contrary, all
obligations, covenants and agreements made by the Landlord are intended to
personally bind the Landlord of the Landlord's assets, except for the Landlord's
interest in the property of which the leased premises are a part, but, rather,
are made and intended for the purpose of binding only the Landlord's interest in
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the property of which the leased premises are a part. Redress for any claims
against the Landlord under this Lease shall only be made against the Landlord to
the extent of the Landlord's interest in the property of which the leased
premises are a part. No personal liability or personal responsibility is assumed
by, nor shall at any time be asserted or enforceable against, the Landlord, its
partners, its board of directors and officers, as the case may be, or any
shareholders, employees, agents, heirs, legal representative, successors and
assigns on account of this Lease, or on account of any covenants, undertakings
or agreements with the Landlord contained in this Lease.
33. CAPTIONS:
Paragraph headings are for convenience and ease of reference, and shall
neither be deemed part of the paragraph or considered in the construction
thereof.
34. INCORPORATION:
All Exhibits referred to in this Lease, all materials referred to and
incorporated in said Exhibits shall be incorporated herein by such reference.
35. CONDITIONS OF OCCUPANCY:
Tenant agrees to abide and be bound by the following rules and policies
of the Landlord, which shall be considered as covenants of this Lease and are
listed as Addendum A.
IN WITNESS WHEREOF, the Landlord and Tenant have signed, sealed and
executed the Lease, the day and year first above written.
TENANT: LANDLORD:
eACCELERATION CORPORATION XXXXX FAMILY LIMITED PARTNERSHIP, L.P.
By /s/ Xxxxx Xxxxxxx By /s/ Xxxxxxx X. Xxxxx
-------------------------------- -----------------------------------
Xxxxx Xxxxxxx, CEO Xxxxxxx X. Xxxxx, General Partner
STATE OF WASHINGTON )
) ss.
COUNTY OF KITSAP )
On this _____ day of ________________, 2003, before me personally
appeared XXXXXXX X. XXXXX, to me known to be the General Partner of the Xxxxx
Family Limited Partnership, L.P., who executed the within and foregoing
instrument, and acknowledged the said instrument to be the free and voluntary
act and deed of said corporation for the uses and purposes therein mentioned,
and on oath stated that he was authorized to execute said instrument.
Given under my hand and official seal the day and year first above
written.
-------------------------------------
NOTARY PUBLIC in and for the state of
Washington, residing at
-------------------
My Commission Expires:
-------------------
Print Name:
-----------------------------
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ADDENDUM A
Light and Air
a) This Lease does not grant or purport to grant any rights to access
to Light or air over property, and this Lease does not warrant or protect
against interferences with light or air in the Leased premises by and
construction upon adjacent, abutting or nearby property.
Admittance by Pass-Key
b) The Landlord shall not be liable for the consequences of admitting
by pass-key or refusing to admit to said premises the Tenant or any of the
Tenant's agents or employees. No lock or alarm shall be put on any door without
the written consent of Landlord and Landlord will be given access codes to any
alarm.
Electrical Installations
c) Tenant shall not without written consent of Landlord operate or
install any electrical equipment or machinery (other than ordinary office
equipment), or replace or move any electric light fixtures provided; however,
that with the consent of Landlord, Tenant may replace building light fixtures of
his own choice with the express understanding that such installation will not
increase the Tenant's consumption of electricity, and that the cost of such
fixtures and installations shall be at Tenant's sole expense. It is further
agreed that Tenant shall at the expiration or sooner termination of this Lease
upon demand of Landlord pay the cost of replacing the standard fixtures
belonging to Landlord.
Awnings
d) No awnings shall be attached to the outside of any windows of the
premises hereby leased.
Windows
e) The Tenant shall not allow anything to be place don the outside
window ledges of said premises; and nothing shall be through by the Tenant or
others our of the windows of said building.
Floor Coverings
f) The Tenant or other person shall not lay linoleum or other similar
floor covering with any paste materials save and excepting that which may be
easily removed with water. The use of cement or similar adhesive material is
expressly prohibited. Tacking strips installed by Tenant, with Landlord's
consent, shall, at the option of the Landlord, be removed and floor repaired at
the expiration of the Lease at Tenant's expense.
Furniture and Bulky Articles
g) Safes, furniture or bulky articles shall be moved in or out of
said premises only at such hours and in such manner as shall least inconvenience
other tenants, and as the Landlord shall decide, and no safe or other article of
over 1,000 pounds shall be moved into said premises without the consent of the
Landlord, and Landlord to have the right to fix the position of any article of
weight in said premises.
Window - Rain and Snow
h) Tenant shall use great care not to leave windows open when it
rains or snows.
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Damage resulting either to Landlord or to other tenants from failure to observe
this precaution shall be chargeable to the tenant on which premises the neglect
occurred. If space is air conditioned, windows will be closed at all times.
Miscellaneous
i) Water closet and other water fixtures shall not be used for any
purposes other than those for which they are intended, and any damage resulting
from misuse on the part of the Tenant, its agents or employees, shall be paid
for by Tenant. No person shall waste water by interfering or tampering with the
facets or otherwise.
j) Landlord reserves the right to close and keep locked all entrance
and exit doors of the building during such hours as Landlord may deem to be
advisable for the adequate protection of the property.
k) In the interest of security, keys and key changing for the
Tenant's space on the lower level shall be the responsibility of the Tenant
after the suite is first keyed for the tenant. Tenant shall not issue keys to
non-tenants and shall provide Landlord with master key access to Tenant's space
for emergency and maintenance purposes.
l) Bicycles shall not be brought onto the building carpeting.
m) Tenant shall turn off all lights when office is not in use.
n) Smoking is not allowed in offices or common areas of the building.
o) Tenant shall not paint the premises nor any part of the premises
without written permission from Landlord. Any painting shall be done by a
licensed contractor approved by Landlord.
p) Tenant shall store nothing in the common area hallways,
stairwells, lobbies, elevators or anywhere in a common area.
q) Landlord reserves the right to make such other and further
reasonable regulations as in its judgment may from time to time be needed or
desirable for the safety, care and cleanliness of the premises or the building
and the preservation of good order therein.
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ADDENDUM B
Tenant Improvements: The premises to be occupied by the Tenant is represented at
this time by the Landlord to be fully compliant to City, State and County codes
and the space will be taken on an as-is basis, and the Tenant will be solely
responsible for any upgrades of the facility to include meeting any code
requirements and any upgrading or relocation of the HVAC system, including
ducting, if necessary for the Tenants' use. Depending upon the number of
employees and use, code and or Fire Department requirements may require restroom
and exiting modifications which will be at the sole cost to Tenant. All tenant
improvements shall be done with appropriate City and fire Department permits and
performed by a licensed, insured contractor or subcontractors. Significant
tenant improvements must be approved by Landlord in writing in advance.
Parking: If parking becomes congested, overcrowded or inadequate for the other
tenants in Olympic Place II, the Tenant shall occupy no more than 50 parking
places at any one time. Parking requirements required beyond 50 spaces shall be
arranged for and provided off-site by the Tenant. In any case, no parking for
Tenant shall be provided in the area immediately in front of the main entrance
side of the building (northeast). It is understood that parking for the tenant
is not available or permitted anywhere to the southwest of the building. This
area is under different ownership and management. (See Exhibit D).
Initials:
/s/ cb
---------------------------
/s/drr
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