EXHIBIT 10.38
OFFICE LEASE
THIS LEASE
, made on the July 18,
2006 , by and between Five Pilgrims, LLC, a Washington
limited liability company, whose address is 12505 Bel-Red Road,
Bellevue, Washington 98005, hereinafter referred to as
“Lessor’, and Trace Technologies LLC
(a Nevada Corporation) , hereinafter
referred to as “Lessee”.
1.
DESCRIPTION:
Lessor, in consideration of the
agreements contained in this Lease, does hereby lease to Lessee,
upon the terms and conditions hereinafter set forth, that certain
space situated in the Forum Office Building, 12505 Bellevue-Redmond
Road, Bellevue, in the State of Washington, the description of
which is Suite 105 of the Forum Office Building as described in
Exhibits A and B attached hereto, hereinafter referred to as
“Premises” and incorporated herein by this reference.
As shown in Exhibit B, the Lessee is sharing one of the two offices
with Metro Escrow personnel and will allow them unrestricted access
to said office.
The Rentable Area of the Premises is
approximately 829 square feet, (less the shared
office space) and the Rentable Area of the total Building is
approximately 17,713 square feet
2.
TERM:
This Lease shall be for a period of
three (3) months, after that the suite will be leased on a month to
month basis, commencing on the 1 st day of
August 2006 . Effective the 1 st day of August
2006, Trace Technologies LLC will have vacated Suite 201 with no
adverse cost consequences. This lease may be terminated by either
party with 30 days prior notice.
3.
BASE RENTAL:
Lessee covenants and agrees to pay
Lessor rent each month in advance on the first day of each calendar
month the following rental payments:
Months
1 and on: One thousand thirty six and 00/100 dollars
($1,036.00)
Rent for any fractional calendar month, at the
beginning or end of the term shall be the pro-rated portion of the
rent. The Lessee shall also pay rent for any fractional
calendar month at the time of making the first calendar month
payment. In the event the described monthly payment is not
received by Lessor by 5 P.M. on the tenth (10th) day of any month
in which the rent is due, Lessor will have the right to levy a late
payment penalty equal to five percent (5%) of the monthly rent then
in effect for each delinquent month of the lease, which, if levied
will immediately be due and will be in addition to the Base
Rental.
4.
CONSIDERATION: As consideration for the execution of this
Lease, Lessee agrees to pay to Lessor the sum of One thousand
thirty six and 00/100 dollars ($1,036.00), which represents the
first month’s rent. Lessee shall not be entitled to interest
on the monies deposited as set forth in this paragraph and Lessor
shall not be required to keep these monies separate from its
general fund.
5.
SECURITY DEPOSIT: The Lessor
shall continue to hold Lessee’s security/damage deposit for
Suite 201 as a
Security/Damage Deposit for this Lease. This amount is due prior to
taking occupancy of the premises by Lessee. Said sum shall be held
by Lessor as security for the faithful performance by Lessee of all
terms, covenants, and conditions of this Lease to be kept and
performed by Tenant during the term hereof. If Lessee defaults with
respect to any provision of this Lease, including, but not limited
to, the provisions relating to the payment of rent, Lessor may (but
shall not be required to) use, apply or retain all or any part of
this security deposit for the payment of any rent or any other sum
in default, or for the payment Of any amount which Lessor may spend
or become obligated to spend by reason of Lessee’s default,
or to compensate Lessor for any other loss or damage which Lessor
may suffer by reason of Lessee’s default.
If any portion of said deposit is so used or
applied, Lessee shall within five (5) days after written demand
therefore, deposit cash with Lessor in an amount sufficient to
restore the security deposit to its original amount and
Lessee’s failure to do so shall be a material breath of this
Lease. Lessor shall not be required to keep this security deposit
separate from the general funds, and Lessee shall not be entitled
to interest on such deposit. If Lessee shall fully and faithfully
perform every provision of this Lease to be performed by it, the
security deposit or any balance thereof shall be returned to Tenant
(or, at Landlord’s option, to the last assignee of
Tenant’s interest hereunder) at the expiration of the Lease
term. In the event of termination of Lessor’s interest in
this Lease, Lessor shall transfer said deposit to Lessor’s
successor in interest.
6.
USES:
Lessee agrees that Lessee will use
and occupy the Premises for general office use only, and no other
purposes.
7.
CARE OF
PREMISES: The Lessor
shall not be called upon to make any improvements or repairs of any
kind upon the Premises, except for those required for normal
maintenance or damage repair. The Premises shall at all times be
kept and used in accordance with the laws of the State of
Washington, and in accordance with all directions, rules and
regulations of the health officer, fire marshal, building
inspector, or other proper officer of any pertinent and authorized
public authority, at the sole cost and expense of said Lessee, and
Lessee will permit no waste, damage or injury to the Premises and
if damage is caused by Lessee, then Lessee will repair the damage
at Lessee’s own cost and expense including damage caused by
the clogging of the drain within the premises.
8.
RULES AND
REGULATIONS: Lessee
and their agents, employees, servants or those claiming under
Lessee will at all times observe, perform and abide by all rules
and regulations printed on this instrument, or which may be
hereafter promulgated by Lessor, all of which it is covenanted and
agreed by the parties hereto shall be and are hereby made part of
this Lease.
9.
SERVICES AND
UTILITIES: Lessor
agrees to furnish to the Premises during reasonable hours of
generally recognized business days, subject to the rules and
regulations of the Building of which the Premises are a part,
electricity for normal lighting and fractional horsepower office
machines, heat and air conditioning as required in Lessor’s
judgment for the comfortable use and occupation of the Premises,
and janitorial services.
Lessee will not, without written consent of
Lessor, use any apparatus or device in the Premises, including, but
without limitation thereto, electronic data processing machines,
punch card machines, and machines which will in any way increase
the demand for electricity beyond the generally accepted demand for
the use of the Premises as general office space; nor connect with
electric current except through existing electrical outlets in the
Premises, any apparatus or device, for the purpose of using
electric current. If Lessee shall require water or electric current
in excess of that usually furnished or supplied for the use of the
Premises as general office space, Lessee shall first procure the
written consent of Lessor, which Lessor may refuse, to the use
thereof the Lessor may cause a water meter or electric current
meter to be installed in the Premises, so as to measure the amount
of water and electric current consumed for any such use. The cost
of any such meters and of installation, maintenance and repair
thereof shall be paid for by the Lessee and Lessee agrees to pay
Lessor promptly upon demand therefore by Lessor for all such water
and electric current consumed as shown by said meters, at the rates
charged for such services by the local public utility furnishing
the same, plus any additional expense incurred in keeping account
of the water and electric current so consumed. If a separate meter
is not installed, such excess cost for such water and electric
current will be established by an estimate made by a utility
company or electrical engineer.
10.
REPLACEMENTS: Lessee will replace at Lessee’s expense,
any glass or doors that may be cracked or broken on said premises
by Lessee, its employees, agents, or invitees with glass or doors
of the same size and quality, with signs thereon, if required, and
Lessee agrees that at the expiration of the said term or sooner
termination of this Lease, Lessee, without notice, will quit and
surrender the said premises in good order, condition and repair,
damage by reasonable wear and the elements of fire excepted, and
deliver all keys to said premises to Lessor.
11.
ACCIDENTS:
All personal property on said
leased Premises shall be at the risk of Lessee. Lessor or
Lessor’s agents shall not be liable for any damage, either to
person or property, sustained by Lessee or others, caused by any
defects now in said Premises or hereafter occurring therein, or due
to the building in which said Premises are situate, or any
appurtenance thereof, becoming out of repair, or caused by fire or
by bursting or leaking of water, gas, sewer or steam pipes, or from
any act of neglect of employees, co-tenants or other occupants of
said building, or any other persons, including Lessor or
Lessor’s agent, or due to the happening of any accident from
whatsoever cause in and about said building. Lessee agrees to
defend and hold Lessor and Lessor’s agents harmless from any
and all claims for damages suffered in or about the leased Premises
by any person, firm or corporation. However in the event of
property damage to the premises caused by Lessor, or Lessor’s
employees, the damage will be paid by Lessor.
12.
ALTERATIONS:
Lessee shall not make any
alterations or improvements in, or additions to said Premises
without first obtaining the written consent of Lessor, and all such
alterations, additions and improvements shall be at the sole cost
and expense of Lessee and shall become the property of Lessor 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, unless by prior mutual agreement it may be
removed as personal property.
13.
RESTRICTIONS: Lessee will not use or permit to be used in
said Premises anything that may be dangerous to life or limb; nor
in any manner deface or injure said building or any part thereof;
nor overload any floor or part thereof, nor permit any
objectionable noise vibrations or odor to escape or to be emitted
from said Premises, or do anything or permit anything to be done
upon said Premises in any way tending to create a nuisance or to
disturb any other tenant or occupant of any part of said
building.
14.
ACCESS:
Lessee will allow and does hereby
grant Lessor and/or Lessor’s agents the right of 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 Lessor.
When reasonably necessary, Lessor may temporarily close entrances,
doors, corridors, elevators or other facilities without liability
to Lessee by reason of such closures and without such action by
Lessor being construed as an eviction of Lessee or as relieving
Lessee from the duty of observing and performing any of the
provisions of this Lease unless it last longer than four (4) hours
during a business day. Lessor shall have the right to enter the
Premises for the purposes of showing the Premises to prospective
Lessees within the period of ninety (90) days prior to the
expiration or sooner termination of the lease term.
15.
ATTORNEYS’
FEES: Lessee shall
pay to Lessor any attorneys’ fees and costs incurred by
Lessor if Lessor is required to consult with and obtain the
services of an attorney in connection with the breach of any
portion of this Lease by Lessee. In the event of litigation between
the parties hereto, declaratory or otherwise, in connection with or
arising out of this Lease, the non-prevailing party shall pay the
costs thereof and attorneys’ fees actually incurred by the
prevailing party, which shall be determined and fixed by the court
as part of the judgment. Lessor and Lessee agree that they intend
by this paragraph to compensate for attorneys’ fees actually
incurred by the prevailing party to the particular attorneys
involved at such attorneys’ then normal hourly rates and that
this paragraph shall constitute an instruction to the court that
such rate or rates shall be deemed reasonable.
16.
INSOLVENCY:
If the Lessee becomes insolvent,
makes an assignment for the benefit of creditors, or a receiver is
appointed for the business or property of Lessee, it is optional
with the Lessor to terminate this Lease, which termination shall
reserve unto Lessor all of the rights and remedies available under
Paragraph 17 hereof, and Lessor may accept rent from such assignee
or receiver without waiving or forfeiting said right of
termination; that the filing in a court of competent jurisdiction
of a petition seeking to have Lessee adjudged bankrupt shall
automatically forfeit and terminate this Lease and Lessee shall
immediately owe, and agrees to pay to Lessor, a lump sum equal to
the amount that the rental provided for herein exceeds the
reasonable rental value of the Premises for the remainder of the
term hereof.
17.
DEFAULT AND
RE-ENTRY: If any
rents above or any part thereof shall be and remain unpaid when the
same shall become due for a period often (10) days, or if Lessee
shall violate or default in any of the covenants and agreements
herein contained, then the Lessor may cancel this Lease upon giving
the notice required by law, and re-enter said Premises, but not
withstanding such re-entry by the Lessor, the liability of the
Lessee for the rent provided for herein shall not be extinguished
for the balance of the term of this Lease, and Lessee covenants and
agrees to make good to the Lessor any deficiency arising from
re-entry and re-letting of the Premises at a lesser rental then
herein agreed to. The Lessee shall pay such deficiency each month
as the amount thereof is ascertained by the Lessor. In the event it
becomes reasonably necessary to make any changes, alterations or
additions to the Premises or any part thereof for the purpose of
re-letting said Premises or any part thereof, Lessee shall also be
responsible for such costs in reletting the Premises, including but
not limited to, clean up costs and remodeling to return the space
to its original state and condition. Lessee shall also be
responsible for commissions and advertising in re-letting the
premises.
In the event of any entry in, or taking
possession of, the Premises, Lessor shall have the right, but not
the obligation, to remove from the Premises all personal property
located therein, and may store the same in any place selected by
Lessor, including but not limited to a public warehouse, at the
expense and risk of the owners thereof, with the right to sell such
stored property, without notice to Lessee after it has been stored
for a period of thirty (30) days or more, with the proceeds of such
sale to be applied to the costs of such sale and to the payment of
charges for storage and to the payment of any other sums of money
which may then be due from Lessee to Lessor under any of the terms
thereof.
18.
RISK:
All personal property of any kind or
description whatsoever in the demised Premises shall be at the
Lessee’s sole risk and the Lessor shall not be liable for any
damage done to or loss of such property or damage or loss suffered
by the business or occupation of the Lessee arising from any acts
or neglect of co-tenants or other occupants of the building, or of
the Lessor or the employees of the Lessor or of any other persons
or from bursting, overflowing or leaking of water, sewer or steam
pipes or from the heating or plumbing fixtures or from electric
wires, or from gas, or odors, or caused in any other manner
whatsoever except in the case of willful neglect on the part of the
Lessor.
19.
INDEMNIFICATION: Lessee will indemnify and hold harmless Lessor
from any claim, liability or suit on behalf of any person, persons,
corporation and/or firm for any injuries or damages occurring in or
about the said Premises or on or about the sidewalk, stairs or
thoroughfares adjacent thereto where said damages or injury was
caused or partially caused by the ordinary or gross negligence or
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