SEATTLE DESIGN CENTER









EXHIBIT 10.38




 




SEATTLE DESIGN CENTER




LEASE




 




This Lease

made this 23rd  day of March, 2000, by and between Bay West Design

Center, LLC, a Delaware limited liability company, hereinafter called Lessor,

and EpicEdge, Inc., a Texas corporation, hereinafter called Lessee.




 




1.             PREMISES.  Lessor does hereby lease to Lessee those

certain premises being space in those certain buildings known as the Seattle

Design Center, (herein referred to as “the buildings”) to wit:




 




Approximately

8,725 rentable square feet of space, being Suite #600, located at 5601 Sixth

Avenue South, Seattle, Washington, 98108, as outlined in blue on Exhibit B

attached hereto (hereinafter called “Premises”) being situated upon land

described in Exhibit A attached hereto. 

Said square footage includes an agreed upon 10% load factor.




 




2.             TERM.  This Lease shall be for a term of five (5)

years commencing June 1, 2000, and terminating May 31, 2005.




 




3.             RENT/SECURITY

DEPOSIT/LETTER OF CREDIT.  Lessee

covenants and agrees to pay Lessor, at PO Box 24842, Seattle,

Washington 98124-0842, or to such other party or at such other place as Lessor

may hereafter designate, monthly rent in advance without offset or deduction,

on or before the first day of each month of the Lease term in the following

amount: Thirteen Thousand Eighty Seven and 50/100 Dollars ($13,087.50). (SEE PARAGRAPH 36)




 




Lessor

acknowledges receipt of the first month’s rent ($13,087.50) and operating

expense charge ($2,776.20).  Lessor

further acknowledges receipt from Lessee of a security deposit (the “Security

Deposit”) in the amount of Fifteen Thousand Ninety-Four and 25/100 Dollars

($15,094.25), which sum shall be held and owned by Lessor, without obligation

to pay interest, as security for the performance of Lessee’s covenants and

obligations under this Lease.  The

Security Deposit is not an advance rental deposit or a measure of damages

incurred by Lessor in case of Lessee’s default.  Upon the occurrence of any event of default by Lessee, Lessor may

from time to time, without prejudice to any other remedy provided herein or by

law, use such fund as a credit to the extent necessary to credit against any

arrears of Rent or other payments due to Lessor hereunder, and any other

damage, injury, expense or liability caused by such event of default, and

Lessee shall pay to Lessor, on demand, the amount so applied in order to

restore the Security Deposit to its original amount.  Although the Security Deposit shall be deemed the property of

Lessor, any remaining balance of such deposit shall be returned by Lessor to

Lessee at such time after termination of this Lease that all of Lessee’s

obligations under this Lease have been fulfilled, reduced by such amounts as

may be required by Lessor to remedy defaults on the part of Lessee in the

payment of Rent or other obligations of Lessee under this Lease, to repair

damage to the Premises, Building or Project caused by Lessee or any Lessee’s

Parties and to clean the Premises. 

Lessor may use and commingle the Security Deposit with other funds of

Lessor.




 




In addition to

the Security Deposit and as further security for the performance of the

obligations of this Lease by Lessee, upon execution of this Lease Lessee shall

provide to Lessor and cause to be in effect for the first twelve (12) months of

the term of this Lease, an unconditional, irrevocable letter of credit naming

Lessor as beneficiary, in the amount of Thirty Thousand Dollars ($30,000).  Lessor shall hold the letter of credit as

security for the performance of Lessee’s obligations under this Lease.  Lessor shall have the right to draw upon

said letter or credit, without prejudice to any other remedy of Lessor, upon

the failure of Lessee to pay to Lessor when due rent or additional rent or any

other charges after notice as provided in the Lease.  In the event Lessor draws upon the letter of credit, Lessee shall

have delivered to Lessor a revised letter of credit in the full amount required

to be provided as security.  Following

the end of the twelfth month of the Lease term, the letter of credit shall no

longer be required by Lessor.




 




4.             USE.  The premises shall be used only for the

purpose of




 




Office.




 




Lessee shall

at its own expense obtain any and all licenses and permits necessary for such

use, and shall comply with all governmental laws, ordinances, regulations,

orders, and directives applicable to the use of the Premises, except that

Lessor agrees to deliver the Premises in compliance with the Americans with

Disabilities Act and Lessee shall be responsible for maintaining the Premises

thereafter.  Lessee shall not occupy or

use, or permit any portion of the Premises to be occupied or used, for any

purpose which would increase the rate of fire insurance coverage on said

Premises, the buildings or their contents. 

In the event Lessee shall cause any increase above normal rates, Lessee

agrees to pay to Lessor, as additional rental, an amount equal to all such

increases.




 




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5.             RULES AND

REGULATIONS.  Lessee agrees to

comply with the Rules and Regulations attached hereto (Exhibit C), as well

as such other reasonable rules and regulations as may from time to time be

adopted by Lessor for the management and safety of common areas, the buildings,

and tenants.  Lessee shall be

responsible for the compliance with such rules and regulations by its

employees, agents, and invitees.  The

failure of Lessor to enforce any of such rules and regulations against Lessee

or any other tenant of the buildings shall not be deemed to be a waiver of

same.




 




6.             MAINTENANCE.  Lessee agrees by taking possession that the

Premises are in tenantable and good condition and that Lessor has made no

promises, agreements, or representations as to the decoration, repair or

alteration of the Premises or any other portion of the buildings except as expressly

set forth herein or as may otherwise be mutually agreed upon in writing.  Lessor shall maintain the heating and air

conditioning systems, roof, exterior walls (excluding windows, plate glass and

all doors in and to the Premises), grounds, parking areas, public restrooms,

hallways, entrances and other portions of the buildings used in common by all

tenants in good repair and condition, reasonable wear and tear excepted, and

the costs of such maintenance shall be shared as provided in paragraph 8, below.  Lessee shall be responsible for all other

maintenance and repairs required in connection with the Premises and shall

maintain the Premises in a neat, clean and sanitary condition.  Lessee shall also be responsible for repair

or replacement of any damage or injury to the Premises or the buildings caused

by Lessee, its agents, employees or invitees; provided, however, if Lessee

fails to make such repairs or replacements promptly, Lessor may do so, and the

cost thereof shall be additional rent due on the first of the following month.




 




7.             UTILITIES AND

SERVICES.  Lessor shall furnish

electricity for light, heat and air conditioning to the Premises, and in

addition shall furnish water, janitorial services, sewer and toilet facilities

to common areas in the buildings, and the cost of such utilities and services

shall be shared as provided in paragraph 8, below.  In the event that Lessee’s electrical needs exceed the building

standard requirements supplied by Lessor, Lessee shall have the right, at

Lessee’s sole cost and expense, to install additional electrical service

capacity to the Premises.  Lessee’s

plans and specifications shall be subject to the prior approval of Lessor, and

the additional electrical service shall include one or more separate meters in

order to permit Lessor to invoice Lessee directly for the additional electrical

usage.  Lessor shall not be liable for

any injury or damages suffered as a result of the interruption of utilities or

services by fire, or other casualty, strike, riot, vandalism, the making of

necessary repairs or improvements, or any other cause.




 




8.             MONTHLY

OPERATING EXPENSE ADJUSTMENTS. 

Lessee shall pay as additional monthly rent Lessee’s pro-rata share of

expenses incurred by Lessor for operation of the land and buildings described

on Exhibit A hereto during the term or any extension hereof, as follows:




 




(a)  Real estate taxes and assessments including

taxes, if any, direct or indirect, in whole or in part, upon the rents or the

income derived from real estate or rental property (excluding Federal or State

taxes on net income);




 




(b)  Usual and necessary costs of operation,

maintenance and repair as determined by standard accounting practice, including

without limitation, all utilities and services not metered or charged directly

to Lessee, insurance, painting, upkeep and repair of building exterior,

roofing, parking, landscaping, and all common areas and facilities, and

Lessor’s fee for supervision and administration of the items set forth in this

sub-paragraph, currently at 10%, but excluding depreciation, loan payments, and

replacement of major building structural elements.  Depreciation, as used in this section, is defined specifically to

be related to the purchase price of the building, subsequent improvements

within tenant spaces, and payments of lease commissions.




 




Lessor shall

from time to time estimate to Lessee its monthly pro-rata share of such

expenses based upon existing costs. 

Lessee’s pro-rata share shall be that percentage of the total expenses

as the square footage of Lessee’s Premises bears to the total applicable net

rentable square footage of the buildings or such other equitable apportionment

as may be adopted.  Such monthly

estimated amount shall be paid by Lessee on or before the first day of each

month.  Lessor, annually or upon

termination hereof, shall compute Lessee’s actual pro-rata share of such

expenses.  Any overpayment shall be

refunded or credited to Lessee, at its option, and any deficiency shall be paid

by Lessee within fifteen (15) days after date of Lessor’s statement.  Lessor’s records showing expenditures made

for such expenses shall be available for Lessee’s inspection at any reasonable

time.




 




9.             LESSOR’S

RESERVATIONS.  Lessor reserves the

right without liability to Lessee: (a) to inspect the Premises, to show them to

prospective tenants, and if they are vacated, to prepare them for reoccupancy;

(b) to retain at all times and to use in appropriate instances keys, to which

only authorized building personnel have access, to doors within and into the

Premises; (c) to make repairs, alterations, additions or improvements, whether

structural or otherwise, in or about the buildings, and for such purposes to

enter upon the Premises and during the continuance of any work, to close common

areas and to interrupt or temporarily suspend building services and facilities,

all without affecting any of Lessee’s




 




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obligations hereunder, so long

as the Premises are reasonably accessible; and (d) generally to perform any

acts relating to the safety, protection and preservation of the Premises or

building.




 




10.           POSSESSION.  If Lessor fails to deliver possession of the

Premises at the commencement date of the term hereof, Lessee may give Lessor

written notice of its intention to cancel this Lease unless possession is

delivered within sixty (60) days after receipt of such notice by Lessor;

provided such commencement date shall be extended a period of time equal to the

period of any delays resulting from causes beyond Lessor’s control.  Lessor shall not be liable for any damages

caused by failure to deliver possession of the Premises and Lessee shall not be

liable for any rent until such time as Lessor delivers possession.  A delay in possession shall not extend the

term of the termination date.  If Lessor

offers possession of the Premises prior to the commencement date of the term of

this Lease, and if Lessee accepts such early possession, both parties shall be

bound by the terms hereof during such period, including the payment of rent,

which shall be prorated.




 




11.           ASSIGNMENT AND

SUBLETTING.  Lessee shall not either

voluntarily or by operation of law assign, transfer, convey or encumber this

Lease or any interest under it, or sublet the Premises or any part thereof, or allow

any other person to occupy or use the Premises without Lessor’s prior written

consent.  Lessor reserves the right to

recapture the Premises in lieu of giving its consent by giving notice to Lessee

of such recapture within twenty (20) days after receipt of a written request

for assignment or subletting.  Such

recapture shall terminate this Lease as of the proposed date of assignment or

subletting, which shall be the last day of a calendar month and not earlier than

sixty (60) days after receipt of Lessee’s request hereunder.




 




In the event

that Lessor shall not elect to recapture the Premises and shall thereafter give

its consent, Lessee shall pay Lessor a reasonable fee, not to exceed $500.00,

to reimburse Lessor for processing costs. 

Lessor’s consent, if given, shall not release or discharge Lessee from

any liability under this Lease and shall not be deemed consent to any future

assignment or sublease.  Any assignment

or subletting without Lessor’s consent shall be void, and shall constitute a

default under this Lease.  A transfer by

the present majority shareholders of ownership or control of a majority of the

voting stock of a corporate Lessee shall be deemed an assignment for the

purpose of this paragraph.




 




12.           ALTERATIONS.  After prior written consent of Lessor,

Lessee may but is not obligated to make minor alterations, additions and

improvements in the Premises at its sole cost and expense.  In the performance of such work, Lessee

shall save Lessor harmless from any damage, loss, or expense and shall comply

with all laws, ordinances, rules and regulations of any proper public

authority.  Upon termination of this

Lease, such alterations, additions and improvements made in, to or on the

Premises (including without limitation partitions, draperies, carpeting,

lighting and other physically attached fixtures) shall remain upon and be

surrendered as a part of the Premises; provided, however, that upon Lessor’s

written request, Lessee shall promptly remove such additions, alterations, or

improvements, repair any damage caused thereby and restore the Premises to its

original condition at Lessee’s sole cost and expense.




 




13.           SIGNS.  Lessee shall not paint or install any signs

or symbols on the exterior doors, plate glass or walls of the Premises or

install any electrically lighted signs in or upon the Premises, without the

prior written consent of Lessor.  No

showcases or other fixtures or objects shall be placed by Lessee inside or

outside of the buildings, in the corridors, or elsewhere in or about the

buildings, other than within the Premises. 

Windows facing on corridors shall at all times be wholly clear and

uncovered (except for such signs as Lessor may approve) so that a full

unobstructed view of the interior of the Premises may be had from the

corridors.  No sign, tag, label,

picture, advertisement, or notice (other than price tags of customary size used

in marking samples) shall be displayed, distributed, inscribed, painted or

affixed by Lessee on any part of the outside or inside of the buildings or the Premises

without the prior written consent of Lessor.




 




14.           ACCIDENTS AND

LIABILITY.  Lessor or its agents

shall not be liable for any injury or damage to persons or property sustained

by Lessee or others in and about the Premises or the buildings, except to the

extent caused by Lessor’s negligence, if any. 

Lessee agrees to defend and hold Lessor and its agents harmless from any

claim, action and/or judgment for injury or damage to persons or property

suffered in or about the Premises by any person, firm or corporation, except to

the extent caused by Lessor’s negligence, if any.  Lessee shall, at its expense, carry public liability insurance,

such insurance to afford minimum protection to the combined limit of not less

than Five Hundred Thousand Dollars ($500,000.00) or such other reasonable

amount as Lessor may require in respect to injury or damage to persons or

property.  Lessee shall submit a

certificate of such insurance to Lessor and such insurance shall not be cancelable

without thirty (30) days prior written notice thereof to Lessor.




 




15.           DAMAGE OR

DESTRUCTION.  If the Premises or the

building shall be damaged or destroyed by fire or other casualty, Lessor shall

have the option either (a) to repair or rebuild within one hundred eighty (180)

days, or (b) not to repair or rebuild, and to cancel this Lease on thirty (30)

days notice.  If Lessor fails to give

Lessee written notice of its election within thirty (30) days from the date of

damage, or if the restoration of the Premises cannot be completed within one

hundred eighty (180) days




 




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from date of notice, Lessee may

cancel this Lease on thirty (30) days notice. 

During the period of untenantability, rent shall abate in the same ratio

as the portion of the Premises rendered untenantable bears to the whole of the

Premises.




 




16.           EMINENT DOMAIN.  If the whole of the Premises shall be taken

by any public authority under the power of eminent domain, or purchased by the

condemnor in lieu thereof, the term of this Lease shall cease as of the date

possession is taken by such public authority. 

If only a part of the Premises shall be so taken, the Lease shall

terminate only as to the portion taken, and shall continue in full force and

effect as to the remainder of said Premises, and the monthly rent shall be

reduced proportionately; provided, however, if the remainder of the Premises

cannot be made tenantable for the purposes for which Lessee has been using the

Premises or if more than twenty-five percent (25%) of the rentable square

footage of the Premises shall be so taken, then either party, by written notice

to the other, given at least thirty (30) days prior to the date that possession

must be surrendered to the public authority, may terminate this Lease effective

as of such surrender of possession.  If

any part of the buildings other than the Premises shall be so taken so as to

render in Lessor’s opinion the termination of this Lease beneficial to the

remaining portion of the buildings, Lessor shall have the right within sixty

(60) days of said taking to terminate this Lease upon thirty (30) days written

notice to Lessee.  In the event of any

taking, whether whole of partial, Lessor shall be entitled to all awards,

settlement, or compensation which may be given for the land and buildings.  Lessee shall have no claim against Lessor

for the value of any unexpired term of this Lease.




 




17.           LIENS AND

INSOLVENCY.




 




(a).  Tenant shall keep the Premises and the

building free from any lien or claim of lien arising out of any work performed

upon or materials furnished to the Premises by or on behalf of Tenant.  Tenant hereby agrees to indemnify and hold

Landlord harmless from any loss, cost, or liability resulting from any such

lien or claim of lien, performed at Tenant’s cost and expense at the direction

of Tenant.  In the event any lien or

claim of lien is filed against the building, the land or the Premises by any

person claiming by, through or under Tenant, Tenant shall, upon the request of

Landlord, immediately post in favor of Landlord, at Tenant’s expense, a bond in

form and amount satisfactory to Landlord (but not exceeding 150% of the

reasonably estimated liability for costs and expenses which Landlord may incur

in connection with the removal of the lien) and issued by a surety satisfactory

to Landlord, indemnifying Landlord against all liability, cost, and expenses,

including attorneys’ and collection agency fees, which Landlord may incur as a

result of the lien.  Provided that such

bond has been furnished to Landlord, Tenant, at its sole cost and expense and

after written notice to Landlord, may contest, by appropriate proceedings

conducted in good faith and with due diligence, any lien, encumbrance, or

charge against the Premises arising from work done or materials provided to the

Premises for or on behalf of Tenant, provided such proceedings suspend the

collection thereof and Landlord determines that neither the Premises, the

building nor any part thereof or interest therein is or will be in any danger

of being sold, forfeited or lost.




 




(b).  If Lessee shall be declared insolvent or

bankrupt, or if Lessee’s leasehold interest herein shall be levied upon or

seized under writ of any court of law, or if a trustee, receiver or assignee be

appointed for the property of Lessee, whether under operation of State or

Federal statutes, then Lessor may, at its option, immediately (notice being

expressly waived) terminate this Lease and take possession of said Premises,

without terminating Lessee’s obligations hereunder.




 




18.           DEFAULT AND

REENTRY.  If Lessee fails to keep or

perform any of the covenants and agreements herein contained, then the same

shall constitute a breach hereof.  If

Lessee has not remedied such breach within three (3) days after written notice

thereof from Lessor if the breach is non-payment of rent or other charges, or

within twenty (20) days after written notice thereof from Lessor in the event

of the breach of any other covenant, then Lessor may, at its option, without

further notice or demand:




 




(a)  Cure such breach for the account and at the

expense of Lessee and such expense shall be deemed additional rent due on the

first of the following month; or




 




(b)  Reenter the premises, remove all persons

therefrom, take possession of the Premises and remove all equipment, fixtures,

and personal property therein at Lessee’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 Lessor or the obligations of Lessee, re-let the whole or

any part of the Premises as agent for Lessee, upon such terms and conditions

and for such term as Lessor may deem advisable.  In either event, the rents received and any last month’s rent

deposit held under this Lease may first be applied by Lessor to the costs and

expenses of re-letting, including without limitation, cleaning and necessary

renovation and alteration, and the balance of such rent shall be applied toward

payment of all sums due or to become due to Lessor hereunder, and Lessee shall

pay to Lessor any deficiency; however, Lessor shall not be required to pay any

excess to Lessee.  The above remedies of

Lessor are cumulative and in addition to any other remedies now or hereafter

allowed by law or elsewhere provided for in this Lease.




 




19.           REMOVAL OF PROPERTY.  Any goods or fixtures of Lessee removed by

Lessor in accordance with paragraph 18 above may be stored by Lessor at the

cost and expense of Lessee or may be deposited on any sidewalk or delivery area

adjacent to the buildings, at the sole risk of Lessee and without any further

responsibility on the part of Lessor, and Lessor may without removing said

goods or




 




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fixtures or after removing said

goods and fixtures, without obligation to do so and without any notice to

Lessee, sell or dispose of the same at public or private sale for the account

of Lessee, in which event the proceeds may be applied by Lessor upon any

indebtedness due from Lessee to Lessor. 

Lessee hereby waives all claims for damages that may be caused by Lessor

re-entering and taking possession of the Premises and removing or disposing of

said goods and fixtures and herein provided.




 




20.           COSTS AND

ATTORNEY’S FEES.  If by reason of

any default or breach on the part of either party in the performance of any of

the provisions of this Lease, a legal action is instituted, the prevailing

party shall be entitled to all reasonable costs and attorney’s fees in

connection therewith.  Any action

brought hereunder shall be maintained in the Superior Court in King County,

Washington.




 




21.           SUBROGATION

WAIVER.  Lessor and Lessee each

herewith and hereby releases and relieves the other and waives its entire right

of recovery against the other for loss or damage arising out of or incident to

the perils described in “all risk” insurance policies, including earthquake and

flood insurance endorsements, approved for use in the State of Washington which

occurs in, on or about the Premises, whether due to the negligence of either

party, their agents, employees or otherwise.




 




22.           RELOCATION OF

PREMISES.  Lessee agrees that Lessor

may at any time during the term or any extension hereof after at least thirty

(30) days prior written notice, require Lessee to move to other space elsewhere

in the buildings at the cost and expense of Lessor.  In lieu of such relocation, Lessee shall have the option to

terminate this lease, effective on the date Lessee is required to move, by

written notice to Lessor within fifteen (15) days after delivery of Lessor’s

notice.




 




23.           HOLDING OVER.  If Lessee, with the implied or express

consent of Lessor, shall hold over after the expiration of the term of this

Lease, Lessee shall remain bound by all the covenants and agreements herein,

except that the tenancy shall be from month to month, and the monthly rent

shall be at the rate of one hundred fifty percent (150%) of the last paid rent.




 




24.           SUBORDINATION.  Lessee agrees that this Lease shall be

subordinate to the lien of any mortgages or deeds of trust now or hereafter

placed against the real property of which the Premises comprise a part, and to

all renewals and modifications, supplements, consolidations and extensions

thereof; provided, however, in the event that any mortgagee or beneficiary

shall elect to subordinate its lien to this Lease, Lessor reserves the right to

subordinate said mortgage lien to this Lease upon the terms required by such

mortgagee or beneficiary.




 




25.           SURRENDER OF

POSSESSION.  Lessee, prior to the

termination of this Lease or of Lessee’s right to possession, shall remove from

the Premises all of Lessee’s furniture, trade fixtures and other unattached

personal property, and such alterations, additions, improvements or signs

required by Lessor to be removed, and shall repair or pay for all damage to the

Premises caused by such removal.  All

such property remaining and every interest of Lessee in the same shall be

conclusively presumed to have been conveyed by Lessee to Lessor under this

Lease as a bill of sale, without compensation, allowance, or credit to

Lessee.  Lessee shall upon termination

of this Lease or of Lessee’s right of possession, deliver all keys to Lessor

and peacefully quit and surrender the Premises without notice, neat and clean,

and in as good condition as when Lessee took possession, except for reasonable

wear and tear as determined by Lessor.




 




26.           LATE PAYMENT AND

INTEREST.  If any amount due from

Lessee is not received in the office of Lessor on or before the tenth (10th)

day following the date upon which such amount is due and payable, a late charge

of ten percent (10%) of said amount shall become immediately due and payable,

which late charge Lessor and Lessee agree represents and fair and reasonable

estimate of the processing and accounting costs that Lessor will incur by

reason of such late payment.  All past

due amounts owing to Lessor under this Lease, including rent and the above late

charge, shall be assessed interest at the annual percentage rate of eighteen

percent (18%) from the date due or date of invoice, whichever is earlier, until

paid.




 




27.           NOTICE.  Any notice required to be given by either

party to the other pursuant to the provisions of this Lease or any law, present

or future, shall be in writing and shall be deemed to have been duly given or

sent if delivered personally or if properly deposited in the United States Mail

by registered or certified mail, return receipt requested, addressed to the

Lessor at 5701 Sixth Avenue South, Suite 440, Seattle, WA 98108 or to Lessee at

the following address, or to such other address as either party may designate

to the other in writing from time to time.




 




5601 Sixth Avenue South, Suite 600, Seattle, Washington 98108




and




3200 Wilcrest, Suite 370, Houston, TX 77042




 




28.           CONDUCT OF

BUSINESS.  Intentionally deleted.




 




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29.           NO WAIVER OF

COVENANTS.  Time is of the essence

of this Lease.  Any waiver by either

party of any breach hereof by the other shall not be considered a waiver of any

future similar or other breach.  This

Lease contains all the agreements between the parties; and there shall be no

modification of the agreements contained herein except by written instrument.




 




30.           BINDING ON HEIRS,

SUCCESSORS AND ASSIGNS.  The

covenants and agreements of this Lease shall be binding upon the heirs,

executors, administrators, successors and assigns of both parties hereto,

except as hereinabove provided.




 




31.           ASSIGNMENT OF

LEASE.  Lessee acknowledges that

Lessor, in connection with its mortgage financing upon the real property of

which the Premises are a part, may assign this Lease for additional security

purposes, and that pursuant to the terms of that assignment, unless and until

the Lessee shall have received notice from such lender to the contrary, Lessee

shall pay all rents and other monies due under this Lease as specified herein.




 




32.           PAYMENTS TO

LESSOR.  In the event any payment

due form Lessee to Lessor is made by a party other than Lessee, such payments

shall be deemed to have been made by and for the account of Lessee, and the

party making such payment shall have no rights under this Lease.




 




33.           CORPORATE

AUTHORITY.  Lessee warrants that all

necessary corporate actions have been duly taken to permit Lessee to enter into

this Lease and that each undersigned officer has been duly authorized and

instructed to execute this Lease.




 




34.           LIABILITY OF

LESSOR.  Lessee agrees that no

trustee, officer, employee, agent, manager, or individual partner of Lessor, or

its constituent entities, shall be personally liable for any obligation of

Lessor hereunder, and that Lessee must look solely to the interest of Lessor or

its constituent entities in the subject real estate for the enforcement of any

claims against Lessor arising hereunder.




 




35.           ESTOPPEL

CERTIFICATE.  Within ten (10) days

after notice from Lessor, Lessee shall execute and deliver to Lessor a

certificate stating that this Lease is unmodified and in full force and effect,

or in full force and effect as modified, and stating the modifications.  The certificate also shall state the amount

of total rent, the dates to which the rent has been paid in advance, the amount

of any security deposit or prepaid rent, the fact that there are no current

defaults under the Lease by either Lessor or Lessee except as specified in such

statement, and such other matters as may reasonably be requested by Lessor or

any purchaser or lender of Lessor. 

Lessee acknowledges that any statement delivered pursuant to this

paragraph may be relied upon by any mortgagee, beneficiary, purchaser or

prospective purchaser of the buildings or any interest therein.  Failure to deliver the certificate within

said ten (10) day period shall constitute a material breach of this Lease and

shall be deemed a conclusive admission by Lessee that this Lease is in full force

and effect and has not been modified except as may be represented by Lessor.




 




36.           RENT ADJUSTMENT.  Effective June 1, 2003, the monthly rent as

provided for in Paragraph 3 of the Lease shall be Fifteen Thousand Ninety Four

and 25/100 Dollars ($15,094.25).




 




37.           TENANT

IMPROVEMENTS.  Lessor agrees to

provide up to Thirty Thousand and 00/100 Dollars ($30,000.00) so that Lessor

can complete the following improvements to the Premises:




 




1.             Paint




 




2.             Carpet




 




The Thirty Thousand and 00/100 Dollars ($30,000.00) for tenant

improvements shall include but not be limited to contractor’s profit which

shall not exceed 7%, construction costs, construction management: fee of seven

percent (7%) payable to Lessor, building permits, permit fees, architectural

fees, directory sign updates, suite keys and Washington State Sales Tax.




 




Any additional tenant improvements that exceed the scope of work

described above, for which the Lessee is responsible or has requested, shall be

at the sole expense of the Lessee.




 




38.           PARKING.  Lessee shall have the right to up to ten (10)

unreserved parking stalls in the building garage in an area specified by

Lessor.  Lessee recognizes that Lessor

currently has no parking attendant and/or parking control system implemented by

Lessor.  Parking shall be free of charge

to Lessee unless and until all tenants at Seattle Design Center are charged for

parking in a uniform way.




 




39.           NON DISCLOSURE.  Neither Lessee, nor any of its officers,

shareholders, directors, employees, or representatives, shall disclose,

divulge, communicate or otherwise reveal to any person the existence, or any of

the provisions or contents, of this Agreement, except and only to the extent,

Lessee




 




6





























 




becomes legally compelled (by

deposition, interrogatory, request for documents, subpoena, civil investigative

demand or similar process or requirements of Federal Securities’ laws) to

disclose the existence, or any of the provisions or contents, of this

Agreement, in which event Lessee shall provide Lessor with prompt prior written

notice of such requirement so that Lessor may seek a protective order or other

appropriate remedy and/or waive compliance with terms of this Paragraph.  Lessee warrants and represents that neither

the provisions nor the intention of this Paragraph have been violated at any

time prior to the execution by Lessee of this Agreement.  This violation of the provisions or the

intention of this Paragraph, whether said violation occurred or occurs prior

to, on, or after the execution by Lessee of this Agreement, shall be deemed an

“Event of Default” under the Lease, and shall entitle Lessor to exercise any or

all of its rights and remedies under the Lease, at law or in equity.




 




	

  Lessor:


  	

  Lessee:


  
	

   


  	

   


  
	

  Bay West

  Design Center, LLC,


  	

  EpicEdge,

  Inc.,


  
	

  a Delaware

  limited liability company


  	

  a Texas

  corporation,


  
	

   


  	

   


  
	

  By:


  	

  BW Seattle

  Corp.,


  a Washington corporation


  its manager


  	

   


  
	

   


  	

   


  
	

   


  	

   


  
	

   


  	

   


  	

   


  
	

  By:


  	

  /s/ Timothy

  Treadway


  	

   


  	

  By:


  	

  /s/ Jeff

  Sexten


  	

   


  
	

  Timothy

  Treadway, Executive Vice President


  	

  Jeff Sexten,

  President & COO


  
							





 




7





























 




EXHIBIT A




 




LEGAL DESCRIPTION




SEATTLE DESIGN CENTER




 




Those portions of Blocks 1 and

2, Georgetown Riverfront Addition, and Blocks 26 and 27, Commercial Street

Steam Motor Addition, City of Seattle, King County, Washington, described as

follows:




 




Beginning at

the Northwest corner of Lot 1, Block 27, of the Plat of Commercial Street Steam

Motor Addition, according to plat recorded in Volume 3 of Plats, Page 85, in

King County, Washington; thence N 00o46’18” E along the northerly extension of

the west line of said Lot 1 a distance of 10.00 feet to the south margin of

South Orcas Street as established by Vacation Ordinance No. 60786, records of

the City of Seattle; thence S 89o05’18” E along said south margin a distance of

567.58 feet; thence along a curve to the right having a radius of 15.00 feet,

an arc distance of 24.47 feet through a central angle of 93o29’10” to the west

margin of Sixth, Avenue South as established by Acceptance Ordinance No. 98789

and Vacation Ordinance No, 98793, records of the City of Seattle; thence S

04o23’52” W along said west margin a distance of 196.42 feet; thence along a

curve to the right having a radius of 15.00 feet an arc distance of 22.65 feet

through a central angle of 86o31’59” to the south line of Block 2 of the Plat

of Georgetown Riverfront Addition, according to Plat recorded in Volume 11 of

Plats, Page 5, in King County, Washington; thence N 89o04’09” W along said

south line of Block 2 and of Block 1 of said Plat of Georgetown Riverfront Addition

a distance of 514.75 feet of the east line of Lot 1 of said Block 1; thence

N  00o48’13”  E along said east line of Lot 1 and its northerly extension a

distance of 107.93 feet to the alley centerline 8 feet north of the north line

of said Lot 1; thence N 89o04’09” W along said centerline a distance of 40.36

feet to the southerly extension of the west line of said Lot 1, Block 27, Plat

of Commercial Street Steam Motor Addition; thence N 00o46’18” E along the

southerly extension of said Lot 1 and along the west line of said Lot 1 of

Block 27 of the Plat of Commercial Street steam Motor Addition, a distance of

107.95 feet to the point to beginning.




 




Also, Lots 1 through 18

inclusive of Block 17 of the plat of Commercial Street Steam Motor Addition to

the City of Seattle, recorded in Volume 3 of Plats, Page 85, in King County,

Washington, together with vacated alley and portion of South Findlay Street

adjoining, vacated per city Ordinance No. 110210.




 




[INITIALS]




 





























 




EXHIBIT B




 




[FLOORPLAN]




 




 




[INITIALS]




 





























 




EXHIBIT C




 




RULES AND REGULATIONS




 




1.     Any directories provided by

Lessor for the Building will be for the display of the name and location of

tenants only unless otherwise approved by Lessor.




 




2.     Lessee shall not place any

new or additional locks on any doors of the Premises, nor re-key any existing

locks without the consent of Lessor.




 




3.     Lessor reserves the right

to close and keep locked all common entrances and exits during such hours as

Lessor may deem advisable.  Entrance by

tenants to the Buildings on Building holidays and weekends, other than Show

Days, shall be limited to those doors designated by Lessor.




 




4.     Lessor reserves the right

to exclude or expel from the buildings any person who, in the judgment of

Lessor, is intoxicated, under the influence of drugs or whose conduct is

otherwise disturbing to others, or who shall in any manner violate any of the

rules and regulations.




 




5.     Lessee shall not do or

permit to be done within the Premises anything which would unreasonably annoy

or interfere with the rights of other tenants of the Buildings.




 




6.     Lessor will not be

responsible for lost or stolen personal property, equipment or money from the

Buildings at any time.




 




7.     Lessee shall not permit its

employees or invitees to loiter in or about the common areas, to obstruct any

of the entries, passages, corridors of common areas, nor to place any rubbish,

litter, merchandise or material of any nature into any Building, delivery,

parking, traffic or other common areas except as designated by Lessor.




 




8.     Canvassing, soliciting, or

peddling in and about the Buildings are prohibited, and Lessee shall cooperate

to prevent such activity.




 




9.     During non-business hours

and days, Lessor may refuse access to the Buildings or the Premises by

master-key controlled by Lessor unless the person seeking access is known to

Lessor's employees, has a pass, or is properly identified.  Lessor shall not be liable for damages for

any error in admitting or excluding any person from the Buildings or Premises.




 




10.   Lessee shall not make or

permit any use of the Premises which may be dangerous to life, limb, or

property, nor permit any noise, odor, or vibrations to emit from the Premises

which are objectionable to Lessor or to other occupants of the Buildings.  Lessee shall not cause a nuisance or

violation of any regulation of any governmental agency within the Premises or

the Buildings.




 




11.   Lessee shall not commit any

waste, damage, or injury to the Premises, the Buildings or parking, loading,

and other common areas.




 




12.   Lessee shall not at any time

display a "For Rent" sign upon the Premises.




 




13.   No vehicles or animals shall

be brought into the Buildings.




 




14.   Lessee and its employees

shall park only in such areas as may be designated by Lessor.




 




15.   Lessee shall not use any

person or contractor who has not been approved by Lessor to perform window

washing, cleaning, decorating, repair or other work in the Premises.




 




16.   Lessor reserves the right to

prescribe the weight, size and position of all safes and other heavy equipment

brought into the Buildings and also the time and the manner of moving such

items, merchandise, furniture and similar items in and out of the

Buildings.  Movements of Lessee's

property in, out, or within the Buildings are entirely at the risk and

responsibility of Lessee.




 




17.   Lessee shall not keep or use

in or upon the Premises any oil, burning fluid, gasoline or other combustible

or explosive materials.




 




18.   Lessee agrees that it will

install on its entrance doors decals supplied by Lessor that shall read

"Showrooms are not open to the public. 

Authorized professional buyers only".




 




19.   Lessee shall at all times

keep clean the glass of all showroom windows and doors.  Lessor reserves the right to require window

treatments of specified types on windows of the Premises which are visible from

Atriums or Common Areas.




 




20.   Lessee shall not waste

electricity or water and shall cooperate fully with Lessor to assume the most

effective and economical operation of the Buildings' lighting, heating, air

conditioning, and other utilities systems. 

Lessee shall refrain from adjusting any controls other than room

thermostats installed for Lessee's use.




 




21.   Lessor reserves the right to

approve the installation our use of any light fixtures, office or showroom

equipment which would cause the electrical usage within the Premises to exceed

a maximum allowable electrical load of 2.35 watts per square foot of

Premises.  Lessor also reserves the

right to approve connections to electric current other than through existing

electrical outlets provided for Lessee's use.




 




22.   Lessee shall keep Lessor

advised of the current telephone number(s) of Lessee's employees who may be

contacted in an emergency, i.e., fire, break-in, vandalism, etc.  If Lessor shall deem it necessary to respond

to such emergency on Lessee's behalf in order to protect the Premises or the

Buildings, Lessee shall pay all reasonable costs incurred, including any time

spent by Lessor's employees in responding to such emergency.




 




23.   Lessor is not responsible to

any tenant for the non-observance or violation of the rules and regulations by

any other tenant.




 





























 




LESSEE:




 




	

  STATE OF


  	

  Texas


  	

  )


  
	

   


  	

   


  	

  )  ss.


  
	

  COUNTY OF 


  	

  Travis


  	

  )


  





 




On this 1st day of May 2000, personally

appeared before me Jeffrey Sexton, to me known to be the President & COO of

the corporation that executed the within instrument, and acknowledged to me

that       was authorized to sign the same on

behalf of the corporation as its free and voluntary act and deed for the uses

and purposes therein mentioned.




 








	

  [SEAL]


  	

   


  	

  SANDRA M. ROY


  	

   


  	

  /s/ Sandra

  M. Roy


  
	

   


  	

   


  	

  MY COMMISSION EXPIRES


  	

   


  	

  NOTARY

  PUBLIC in and for the


  
	

   


  	

   


  	

  October 31, 2000


  	

   


  	

  State of

  Texas, residing at


  
	

   


  	

   


  	

   


  	

   


  	

  100 Lido Cr

  P-3, Austin, TX 78734. 


  
	

   


  	

   


  	

   


  	

   


  	

  My

  commission expires: 10/31/2000.


  










 




 




LESSOR:




 




	

  STATE OF


  	

  Washington


  	

  )


  
	

   


  	

   


  	

  )  ss.


  
	

  COUNTY OF 


  	

  King


  	

  )


  





 




On this 4th day of May 2000, before me

personally appeared Timothy Treadway, to me known to be the Executive Vice

President of BW Seattle Corp., a Washington corporation, which is manager of

Bay West Design Center, LLC, a Delaware limited liability company, Lessor, that

executed the within and foregoing instrument, and acknowledged the said

instrument to be the free and voluntary act and deed of said property manager,

for the uses and purposes therein mentioned, and on oath stated that he was

authorized to execute the said instrument.




 




IN WITNESS WHEREOF I have

hereunto set my hand and affixed my official seal the day and year first above

written.




 








	

  TIA BOCOCK


  	

   


  	

  /s/ Tia

  Bocock


  
	

  NOTARY PUBLIC


  	

   


  	

  NOTARY

  PUBLIC in and for the


  
	

  COMMISSION EXPIRES


  	

   


  	

  State of

  Washington residing


  
	

  12-9-02


  	

   


  	

  at Seattle


  
	

  STATE OF WASHINGTON


  	

   


  	

  My

  commission expires: 12-9-02.


  










 





























 




	

  Property #

  3002


  	

   


  	

  Tenant # 530


  	

   


  	

  Unit # 600


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

  RENTAL

  PAYMENT COUPON - July 2000


  	

   


  	

   


  	

   


  
	

  Property Address:


  	

   


  	

  Payment Due:


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

  EpicEdge, Inc.


  	

   


  	

  Rent


  	

   


  	

  $


  	

  13,087.50


  	

   


  
	

  5601 6 Ave S, Suite 600


  	

   


  	

  CAM


  	

   


  	

  2,776.20


  	

   


  
	

  Seattle WA 98108


  	

   


  	

  Storage


  	

   


  	

  0.00


  	

   


  
	

   


  	

   


  	

  Total

  Payment due on 7/1/00


  	

   


  	

  $


  	

  15,863.70


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

  Remittance Address:


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

  Bay West Design Center, LLC


  	

   


  	

  Late Charge


  	

   


  	

  1,586.37


  	

   


  
	

  P O Box 24842


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

  Seattle WA 98124-0842


  	

   


  	

  Total if

  payment received 


  after 7/10/00


  	

   


  	

  $


  	

  17,450.07


  	

   


  





 




	

  Property # 3002


  	

   


  	

  Tenant # 367


  	

   


  	

  Unit # 600


  	

   


  	

  RENTAL

  PAYMENT COUPON - August 2000


  	

   


  	

   


  	

   


  
	

  Property Address:


  	

   


  	

  Payment Due:


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

  EpicEdge, Inc.


  	

   


  	

  Rent 


  	

   


  	

  $


  	

  13,087.50


  	

   


  
	

  5601 6 Ave S, Suite 600


  	

   


  	

  CAM


  	

   


  	

  2,776.20


  	

   


  
	

  Seattle WA 98108


  	

   


  	

  Storage


  	

   


  	

  0.00


  	

   


  
	

   


  	

   


  	

  Total

  Payment due on 8/1/00


  	

   


  	

  $


  	

  15,863.70


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

  Remittance Address:


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

  Bay West Design Center, LLC


  	

   


  	

  Late Charge


  	

   


  	

  1,586.37


  	

   


  
	

  P O Box 24842


  	

   


  	

  Total if

  payment received 


  after 8/10/00


  	

   


  	

   


  	

   


  
	

  Seattle WA 98124-0842


  	

   


  	

   


  	

  $


  	

  17,450.07


  	

   


  





 




	

  Property #

  3002


  	

   


  	

  Tenant # 530


  	

   


  	

  Unit # 600


  	

   


  	

  RENTAL

  PAYMENT COUPON - Sept 2000


  	

   


  	

   


  	

   


  
	

  Property Address:


  	

   


  	

  Payment Due:


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

  EpicEdge, Inc.


  	

   


  	

  Rent


  	

   


  	

  $


  	

  13,087.50


  	

   


  
	

  5601 6 Ave S, Suite 600


  	

   


  	

  CAM


  	

   


  	

  2,776.20


  	

   


  
	

  Seattle WA 98108


  	

   


  	

  Storage


  	

   


  	

  0.00


  	

   


  
	

   


  	

   


  	

  Total

  Payment due on 9/1/00


  	

   


  	

  $


  	

  15,863.70


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

  Remittance Address:


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

  Bay West Design Center, LLC


  	

   


  	

  Late Charge


  	

   


  	

  1,586.37


  	

   


  
	

  P O Box 24842


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

  Seattle WA 98124-0842


  	

   


  	

  Total if

  payment received 


  after 9/10/00


  	

   


  	

  $


  	

  17,450.07


  	

   


  





 





























 




	

  Property #

  3002


  	

   


  	

  Tenant # 530


  	

   


  	

  Unit # 600


  	

   


  	

  RENTAL

  PAYMENT COUPON - October 2000


  	

   


  	

   


  	

   


  
	

  Property Address:


  	

   


  	

  Payment Due:


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

  EpicEdge, Inc.,


  	

   


  	

  Rent


  	

   


  	

  $


  	

  13,087.50


  	

   


  
	

  5601 6 Ave S, Suite 600


  	

   


  	

  CAM


  	

   


  	

  2,776.20


  	

   


  
	

  Seattle WA 98108


  	

   


  	

  Storage


  	

   


  	

  0.00


  	

   


  
	

   


  	

   


  	

  Total

  Payment due on 10/1/00


  	

   


  	

  $


  	

  15,863.70


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

  Remittance Address:


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

  Bay West Design Center, LLC


  	

   


  	

  Late Charge


  	

   


  	

  1,586.37


  	

   


  
	

  P O Box 24842


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

  Seattle WA 98124-0842


  	

   


  	

  Total if

  payment received 


  after 10/10/00


  	

   


  	

  $


  	

  17,450.07


  	

   


  





 




	

  Property #

  3002


  	

   


  	

  Tenant # 530


  	

   


  	

  Unit # 600


  	

   


  	

  RENTAL

  PAYMENT COUPON - Nov 2000


  	

   


  	

   


  	

   


  
	

  Property Address:


  	

   


  	

  Payment Due:


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

  EpicEdge, Inc.,


  	

   


  	

  Rent


  	

   


  	

  $


  	

  13,087.50


  	

   


  
	

  5601 6 Ave S, Suite 600


  	

   


  	

  CAM


  	

   


  	

  2,776.20


  	

   


  
	

  Seattle WA 98108


  	

   


  	

  Storage


  	

   


  	

  0.00


  	

   


  
	

   


  	

   


  	

  Total

  Payment due on 11/1/00


  	

   


  	

  $


  	

  15,863.70


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

  Remittance Address:


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

  Bay West Design Center, LLC


  	

   


  	

  Late Charge


  	

   


  	

  1,586.37


  	

   


  
	

  P O Box 24842


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

  Seattle WA 98124-0842


  	

   


  	

  Total if

  payment received 


  after 11/10/00


  	

   


  	

  $


  	

  17,450.07


  	

   


  





 




	

  Property #

  3002


  	

   


  	

  Tenant # 530


  	

   


  	

  Unit # 600


  	

   


  	

  RENTAL

  PAYMENT COUPON - Dec 2000


  	

   


  	

   


  	

   


  
	

  Property Address:


  	

   


  	

  Payment Due:


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

  EpicEdge, Inc.


  	

   


  	

  Rent


  	

   


  	

  $


  	

  13,087.50


  	

   


  
	

  5601 6 Ave S, Suite 600


  	

   


  	

  CAM


  	

   


  	

  2,776.20


  	

   


  
	

  Seattle WA 98108


  	

   


  	

  Storage


  	

   


  	

  0.00


  	

   


  
	

   


  	

   


  	

  Total

  Payment due on 12/1/00


  	

   


  	

  $


  	

  15,863.70


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

  Remittance Address:


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

   


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

  Bay West Design Center, LLC


  	

   


  	

  Late Charge


  	

   


  	

  1,586.37


  	

   


  
	

  P O Box 24842


  	

   


  	

   


  	

   


  	

   


  	

   


  
	

  Seattle WA 98124-0842


  	

   


  	

  Total if

  payment received 


  after 12/10/00


  	

   


  	

  $


  	

  17,450.07


  	

   


  





 





























 




	

  [WELLS FARGO

  BANK LOGO]


  	

  ESTOPPEL AGREEMENT


  





 




Loan #85-0200161




 




Tenant’s Trade Name: Epic Edge




 




This ESTOPPEL AGREEMENT

(“Agreement”) is made as of the date set forth below, by Epic Edge, Inc., a

Texas Corporation (“Tenant”), based upon the following facts and understandings

of Tenant:




 




RECITALS




 




A.            Bay West Design

Center, LLC, (“Owner”) is or is about to become the owner of the land and

improvements commonly known as the Seattle Design Center (“Property”) and the

owner of the landlord’s interest in the lease identified in Recital B below

(“Lease”).




 




B.            Tenant is the owner

of the tenant’s interest in that lease dated 03/23/00, which was originally

executed by Timothy Treadway, Executive Vice President, as landlord, and by

Jeff Sexton President & COO as tenant. 

(Said lease and the referenced amendment(s) thereto are collectively

referred to herein as the “Lease”).




 




C.            Owner, as borrower

or as co-borrower with one or more other co-borrower(s), has a loan (“Loan”),

with LaSalle Bank National Association, as Trustee for Bear Steams Commercial

Mortgage Securities Inc., Commercial Mortgage Pass-Through Certificates Series

1999-WF2, Wells Fargo Bank, N.A. as Master Servicer Wells Fargo Bank, N.A.

(“Lender”) which is secured by, among other things, a mortgage, deed of trust,

trust indenture or deed to secure debt encumbering the Property (“Mortgage”).




 




D.            As a condition to

the release of certain impounds under the Loan, Lender has required that Tenant

furnish certain assurances to, and make certain agreements with, Lender, as set

forth below.




 




THEREFORE, Tenant warrants and

represents to, and agrees with, Lender as follows:




 




1.             ESTOPPEL.  Tenant warrants and represents to Lender, as of the date hereof,

that:




 




1.1           Lease Effective.  The Lease has been duly executed and

delivered by Tenant and, subject to the terms and conditions thereof, the Lease

is in full force and effect, the obligations of Tenant thereunder are valid and

binding, and there have been no modifications or additions to the Lease,

written or oral, other than those, if any, which are referenced above in

Recital B.




 




1.2           Tenant Improvement; Occupancy.  All Tenant improvements required to be

constructed by Owner under the Lease have been fully completed to Tenant’s

satisfaction and Tenant has accepted the leased premises and is currently

occupying them.




 




1.3           No Default.  To the best of Tenant’s knowledge: (a) there exists no breach,

default, or event or condition which, with the giving of notice or the passage

of time or both, would constitute a breach or default under the Lease either by

Tenant or Owner; and (b) Tenant has no existing claims, defenses or offsets

against rental due or to become due under the Lease.




 




1.4                                 Entire Agreement.  The Lease constitutes the entire agreement between

Owner and Tenant with respect to the Property, and Tenant claims no rights of

any kind whatsoever with respect to the Property, other than as set forth in

the Lease.




 




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1.5                                 Minimum Rent.  The annual minimum rent under the Lease is $833412, subject to

any escalation, percentage rent and/or common area maintenance charges provided

in the Lease.




 




1.6                                 Rental Payment Commencement Date.  The rents stated in Section 1.5 above will

begin or have begun on 5/1/00.




 




1.7                                 Rentable area.  The rentable area of the leased premises is

8725 square feet.




 




1.8                                 Commencement Date.  The term of the Lease commenced or will

commence on 5/1/00.




 




1.9                                 Expiration Date.  The term of the Lease will expire on

5/31/05.




 




1.10                           No Deposits or Prepaid Rent.  No deposits or prepayments of rent have been

made in connection with the Lease, except as follows: 15,094.25(if none, write

“None”).




 




1.11                           No Other Assignment.  Tenant has received no notice, and is not

otherwise aware of, any other assignment of the landlord’s interest in the

Lease.




 




1.12                           No Purchase Option or Refusal Rights.  Tenant does not have any option or

preferential right to purchase all or any part of the Property, except as

follows: None (if none, write “None”).




 




2.                                       HEIRS, SUCCESSORS AND ASSIGNS.  The covenants herein shall be binding upon,

and inure to the benefit of, the heirs, successors and assigns of the parties

hereto.  Whenever necessary or

appropriate to give logical meaning to a provision of this Agreement, the term

“Owner” shall be deemed to mean the then current owner of the Property and the

landlord’s interest in the Lease.




 




3.                                       ATTORNEYS’ FEES.  If any legal action, suit or proceeding is

commenced between Tenant and Lender regarding their respective rights and obligations

under this Agreement, the prevailing party shall be entitled to recover, in

addition to damages or other relief, all costs and expenses, attorneys’ fees

and court costs (including, without limitation, expert witness fees).  As used herein, the term “prevailing party”

shall mean the party which obtains the principal relief it has sought, whether

by compromise settlement or judgment. 

If the party which commenced or instituted the action, suit or

proceeding shall dismiss or discontinue it without the concurrence of the other

party, such other party shall be deemed the prevailing party.




 




4.                                       LENDER’S AGREEMENT.  Lender’s acceptance of this Agreement shall

constitute Lender’s agreement to be bound hereby.




 




IN WITNESS WHEREOF, Tenant has

executed this instrument as of                         , 19     

..




 




“Tenant”




 




	

  NAME OF

  FIRST TENANT HERE


  
	

   


  
	

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  Its:


  	

   


  	

   


  





 




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