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EXHIBIT 10.28
SUBLEASE
1. PARTIES
This Sublease is entered into as of FEBRUARY 1, 1999, by and between
CONCUR TECHNOLOGIES, INC., A DELAWARE CORPORATION, as "Sublessor", and EMERGING
TECHNOLOGY SOLUTIONS INTERNATIONAL (ETSI), INC., a WASHINGTON CORPORATION, as
"Sublessee". This is a Sublease of a portion of the premises that are the
subject of that Master Lease dated October 31, 1997 by and between CARRAMERICA
(Landlord) and CONCUR TECHNOLOGIES, INC., FORMERLY KNOWN AS PORTABLE SOFTWARE
CORPORATION (Tenant). A copy of said Master Lease is attached hereto, marked
Exhibit A (the "Master Lease"), and incorporated herein by reference.
2. PROVISIONS CONSTITUTING SUBLEASE
(a) This Sublease is subject to all of the terms and conditions of the
Master Lease attached as Exhibit A, except as specifically exempted
herein and Sublessee shall assume and perform the obligations of
Sublessor as Lessee in said Master Lease, to the extent such terms and
conditions are applicable to the Sublease premises. Sublessee shall
not commit or permit to be committed on the Sublease Premises any act
of omission which shall violate any term or condition of the Master
Lease.
(b) All the terms and conditions contained in the Master Lease in Exhibit
A are incorporated herein, except for the following: Schedule 1-12 on
pages 2 and 3, Section 2: Rent (1) Base Rent, Section 20: Security
Deposit, Appendix A: Plan of the Premises, Appendix C, C1 and C2:
Tenant Improvement Agreement, Appendix E: Commencement Date
Confirmation; Appendix F: Legal Description of Real Property; Addendum
1: Extension Option; Addendum 2; Revision of Space Pocket Option.
3. PREMISES
Sublessor leases to Sublessee and Sublessee hires from said Sublessor the
following described premises situated in the City of XXXXXXX, County of KING,
State of WASHINGTON, described as, consisting of second floor office area in
the building located at 0000 000xx Xxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxxxxx, as
depicted on attachment Exhibit "B" (the Sublease Premises"), which Sublessor
believes (but does not warrant) to have a rentable area of approximately 15,448
square feet.
4. CONDITION OF PREMISES
Sublessor shall deliver the Sublease Premises "as is". There is no tenant
improvement allowance for this Sublease. Sublessee may use the current data
communications wiring at no additional cost or charge to the Sublessee.
Sublessor makes no representation, and specifically disclaims all warranties,
whether expressed and implied by operation of law as to the data communications
wiring including without limitation any warranty, relating to its performance
or fitness for Sublessee's intended use. Sublessee shall return the wiring to
the Sublessor at the end of the term in substantially the same condition as
upon the Commencement Date ordinary wear and tear and casualty damages excepted.
5. TERM
5.1 Term. The term of this Sublease shall be for a period commencing on
February 1, 1999, and ending on April 30, 2000, unless sooner
terminated pursuant to any provision hereof.
5.2 Possession. Sublessee shall be entitled to possession of the Sublease
Premises upon the commencement date of this Sublease. Sublessee may
continue to occupy the first floor of the building located at 0000
000xx Xxxxxx, XX Xxxxxxx, Xxxxxxxxxx as depicted on attachment Exhibit
"C" through February 21, 1999.
6. RENT
6.1 BASE RENT. Sublessee shall pay to Sublessor as rent for the Sublease
Premises as follows:
Commencing on February 1, 1999 and continuing to February 28, 1999,
Sublessee shall pay CarrAmerica Realty Corporation $47,994 as
monthly base rent. For the period March 1, 1999 and continuing to
March 31, 1999: Sublessee shall pay Sublessor $47,994 as monthly base
rent. From the period beginning April 1, 1999 and continuing through
April 30, 2000, Sublessee shall pay Sublessor base rent in equal
monthly installments of Nineteen thousand three hundred ten dollars
($19,310).
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Base rent shall be paid in advance, on the first day of each month
of the term hereof. Rent shall be payable without notice or demand
and without any deduction, offset, or abatement in lawful money of
the United States of America to Sublessor at the address stated
herein or to such other persons or at such other places as Sublessor
may designate in writing.
6.2 OPERATING EXPENSES. Commencing on February 1, 1999 and continuing to
February 28, 1999, Sublessee shall pay CarrAmerica Realty
Corporation $12,738.38 as monthly operating expenses. For the period
March 1, 1999 and continuing to Xxxxx 00, 0000, Xxxxxxxxx shall pay
Sublessor $12,738.38, as monthly operating expenses Commencing on
April 1, 1999, and continuing on the first day of each calendar
month with monthly payments of Base Rent, Sublessee shall pay to
Sublessor, as additional rent hereunder, an amount equal to the
Sublessee's Pro Rata Share of Building Operating Expenses payable
under the Master Lease, based on rentable square feet. Sublessee's
pro rata share shall be calculated by Sublessor based upon Lessor's
estimate of Sublessor's share of Pro Rata Share of Building
Operating Expenses as furnished to Sublessor under the Master Lease.
Sublessor estimates, based on information provided by Lessor, that
Sublessee's Pro Rata Share of the Building Operating Expenses for
1999 will be approximately $3.98 per square foot, or $5,125.21 per
month, exclusive of direct janitorial services which are to be
arranged and paid directly by the Sublessee and Sublessor for their
respective Premises. As and when adjustments between estimated and
actual Building Operating Expenses are made by Lessor under the
Master Lease, the obligations of Sublessor and Sublessee hereunder
shall be adjusted in a like manner. If any such adjustment shall
occur after the expiration or earlier termination of the Term, then
the obligations of Sublessor and Sublessee shall survive such
expiration or termination. Sublessor shall furnish Sublessee with
copies of all statements submitted by Lessor of actual or estimated
Building Operating Expenses during the Term.
7. SECURITY DEPOSIT
Sublessee shall deposit with Sublessor, at lease execution, the sum of
$38,620 as security for Sublessee's faithful performance of Sublessee's
obligations hereunder. If Sublessee fails to pay rent or other charges due
hereunder, or otherwise defaults with respect to any provision of this Sublease,
Sublessor may use, apply or retain all or any portion of said deposit for the
payment of any rent or other charge in default or for the payment of any other
sum to which Sublessor may become obligated by any reason of Sublessee's
default, or to compensate Sublessor for any loss or damage which Sublessor may
suffer thereby. If Sublessor so uses or applies all of any portion of said
deposit, Sublessee shall, within ten (10) days after written demand therefor,
deposit cash with Sublessor in an amount sufficient to restore said deposit to
the full amount hereinabove stated and Sublessee's failure to do so shall be a
breach of this Sublease, and Sublessor may at it's option, terminate this
Sublease. Sublessor shall not be required to keep said deposit separate from its
general accounts. If Sublessee performs all of the Sublessee's obligations
hereunder, said deposit or so much thereof as had not theretofore been applied
by Sublessor shall be returned, without payment of interest for it's use, to
Sublessee (or, at Sublessee's option, to the last assignee, if any, of
Sublessee's interest hereunder) within ten (10) days after the expiration of the
term hereof, or after Sublessee has vacated the Premises, whichever is later.
8. DEFAULT
In the event of default by Tenant or any other dispute relating to the
interpretation or enforcement of this Sublease, the parties agree to submit to
the personal jurisdiction of the courts of the State of Washington and the
federal courts in the State of Washington, and venue shall be laid in King
County, Washington, or in federal district court for the Western District of
Washington.
9. USE
The Sublease Premises shall be used and occupied only for general office
and uses, and for no other purpose without prior written consent of Sublessor.
Sublessee's business shall be established and conducted throughout the term
hereof in a first class manner. Sublessee shall not use the Sublease Premises
for, or carry on, or permit to be carried on, any offensive, noisy, or dangerous
trade, business, manufacture or occupation or permit any auction sale to be held
or
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conducted on or about the Sublease Premises. Sublessee shall not do or suffer
anything to be done upon the Sublease Premises, which will cause structural
injury to the Sublease Premises, or the building of which the Sublease Premises
form a part. The Sublease Premises shall not be overloaded and no machinery,
apparatus or other appliance shall be used or operated in or upon the Sublease
Premises which will in any manner injure, vibrate or shake the Sublease
Premises or the building of which the Sublease Premises form a part. No use
shall be made of the Sublease Premises which will in any way impair the
efficient operation of the sprinkler system (if any) within the building
containing the Sublease Premises. Sublessee shall not leave the Sublease
Premises unoccupied or vacant during the term. No musical instrument of any
sort, or any noise-making devise will be operated or allowed upon the Sublease
Premises. Sublessee shall not use or permit the use of the Sublease Premises or
any part thereof for any purpose which will increase the existing rate of
insurance upon the building of which the Sublease Premises form a part or on
any part thereof. If any act on the part of Sublessee or use of the Sublease
Premises by the Sublessee shall cause, directly or indirectly, any increase of
Sublessor's insurance expense, Sublessee shall pay said additional expense to
Sublessor upon demand. No such payment by Sublessee shall limit Sublessor in
the exercise of any other rights or remedies, or constitute a waiver of
Sublessor's right to require Sublessee to discontinue such act or use.
10. SHARED ACCESS, PARKING, SECURITY
Sublessee shall have the right to use three (3) unreserved parking spaces
per 1000 rentable square feet under this Sublease. The lobby area shall be used
"in common" with other tenants. Sublessee shall be responsible for securing the
Sublease Premises from the lobby area. Sublessee shall hold Sublessor harmless
from any loss of or damage to Sublessee's property arising from a breach to the
building security as a result of an act on the part of the Sublessee.
11. NOTICES
All notices or demands of any kind required or desired to be given by
Sublessor or Sublessee hereunder shall be in writing and shall be deemed
delivered forty-eight (48) hours after depositing the notice or demand in the
United States mail, certified or registered, postage prepaid, addressed to the
Landlord or Tenant respectively at the addresses set forth after it's signature
at the end of the Sublease, or to such other address as Sublessor may designate
by prior notice to Sublessee.
SUBLESSOR:
CONCUR TECHNOLOGIES, INC. Address: 0000 000xx Xxx XX
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By: /s/ Xxxx Xxxxxx Xxxxxxx, XX 00000
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By: Xxxx Xxxxxx, Director of Finance
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SUBLESSEE
EMERGING TECHNOLOGY
SOLUTIONS INTERNATIONAL, INC. Address: 6244 185th N.E.
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By: /s/ Xxxxxx X. Xxxxx Xxxxxxx, XX 00000
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By: Xxxxxx X. Xxxxx
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STATE OF WASHINGTON )ss
)ss.
COUNTY OF KING )ss
On this 26th day of February, 1999, before me, the undersigned, a Notary
Public in and for the State of Washington, duly commissioned and sworn as such,
personally appeared Xxxxx Xxxxxx, to me known to be the Vice President and
Market Officer of CarrAmerica Realty Corporation, the corporation that 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/she was authorized to
execute said instrument, and that the seal affixed is the corporate seal of
said corporation.
WITNESS my hand and official seal the day and year in this certificate
first above written.
/s/ XXXX XXXXXXX
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Signature
Xxxx Xxxxxxx
-----------------------------
Printed Name
[SEAL] NOTARY PUBLIC in and for the State of
Washington residing at King County
My commission expires: 10-14-2000
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CONSENT OF LANDLORD
(Sublease)
Subject to the conditions set forth herein, the undersigned (sometimes
referred to herein as the "Landlord") hereby consents to the attached Sublease
Agreement (defined below) dated February 1, 1999 between Concur Technologies,
Inc., a Delaware corporation ("Sublessor") and Emerging Technology Solutions
International (ETSI), Inc., a Washington corporation ("Sublessee"), and all its
terms (the "Sublease Agreement"). This Consent does not release or discharge
Sublessor from any liability as lessee under that certain Lease dated October
31, 1997 between Landlord and Sublessor (the "Lease") including, without
limitation, the obligation to pay Rent. This consent is granted by Landlord
subject to the following terms and conditions:
1. Sublessee shall not assign the Sublease Agreement nor sublet the
premises described in the Sublease Agreement (the "Subleased Premises") in
whole or in part; and shall not permit Sublessee's interest in the Sublease
Agreement to be vested in any third party by operation of law or otherwise.
2. This Consent shall not be deemed to be a consent to any subsequent
assignment or subletting. Sublessor shall not make any subsequent amendment to
the Sublease Agreement without Landlord's prior written consent, which consent
shall not be unreasonably withheld. Landlord shall not be deemed to have waived
any rights under the Lease by virtue of this Consent.
3. The Sublease Agreement is in all respects subordinate to the terms of
the Lease. Insofar as the specific terms of the Sublease Agreement purport to
amend or modify or are in conflict with the specific terms of the Lease, the
terms of the Lease shall control. Landlord assumes no liability whatsoever on
account of anything contained in the Sublease Agreement.
4. Any rights under the Sublease Agreement may be enforced only against
Sublessor, and Sublessee shall have no right to enforce any of Sublessor's
rights under the Lease against Landlord by virtue of the Sublease Agreement,
this Consent, or otherwise.
IN WITNESS WHEREOF, the undersigned has executed this Consent of Landlord
as of this 26th day of February, .
LANDLORD:
CARRAMERICA REALTY
CORPORATION
By: /s/ XXXXX XXXXXX
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Its: Vice President Market Officer
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[BLUEPRINT]
CARRAMERICA -- REDMOND EAST BUILDING "C"
FLOOR TWO
APRIL 03, 1998
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[DIAGRAM]
CARRAMERICA - REDMOND EAST BUILDING "C"
FLOOR ONE
APRIL 03, 0000
Xxxxxxx X
0
XXXXX XX XXXXXXXXXX )
) ss.
COUNTY OF KING )
I CERTIFY that I know or have satisfactory evidence that Xxxx Xxxxxx is
the person who appeared before me, and acknowledged that he signed this
instrument, on oath stated that he was authorized to execute the instrument,
and acknowledged it as the Director of Finance of Concur Technologies, Inc., to
be the free and voluntary act of such party for the uses and purposes mentioned
in the instrument.
DATED: February 12, 1999
/s/ XXXX XXXXXXX
----------------------------------------
Xxxx Xxxxxxx
----------------------------------------
(Print Name)
NOTARY PUBLIC in and for the
[SEAL] State of Washington, residing
at Seattle
My appointment expires 10-14-2000
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STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
I CERTIFY that I know or have satisfactory evidence that Xxxxxx Xxxxx is
the person who appeared before me, and acknowledged that he signed this
instrument, on oath stated that he was authorized to execute the instrument,
and acknowledged it as the President/CEO of Emerging Technology Solutions to
be the free and voluntary act of such party for the uses and purposes mentioned
in the instrument.
DATED: February 12, 1999
/s/ XXXX XXXXXXX
----------------------------------------
Xxxx Xxxxxxx
----------------------------------------
(Print Name)
NOTARY PUBLIC in and for the
[SEAL] State of Washington, residing
at Seattle
My appointment expires 10-14-2000
