EXHIBIT 10.14
COMMERCIAL LEASE
THIS LEASE is made effective the 11th day of March, 1998, between ZASER &
LONGSTON, INC., a Washington corporation ("Landlord") and PRIMEX AEROSPACE
COMPANY, a Washington corporation ("Tenant").
1. Basic Lease Provisions.
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DATE: March 11, 1998
LANDLORD: ZASE & LONGSTON, INC.
ADDRESS OF LANDLORD: 0000 000XX XXXXX X.X.
XXXXXXXX, XX 00000
TENANT: PRIMEX AEROSPACE COMPANY
ADDRESS OF TENANT: 00000 XXXXXXX XXXX X.X.
X.X. XXX 00000
XXXXXXX, XX 00000-0000
LEASED PREMISES: Approximately 70 acres of land and the
buildings and structures located thereon
LEASE TERM: Ten (10) Lease Years
COMMENCEMENT DATE: July 1, 1998
TERMINATION DATE: June 30, 2008
BASIC MONTHLY RENT: As set forth in Article 5 below.
PERMITTED USES: Research and manufacture of aerospace and
defense related products, including but not
limited to propellants, with associated
testing, engineering and management
activities.
2. Exhibits. The exhibits designated in this Section and attached to this
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Lease are incorporated into this Lease by reference and are to be construed as a
part of this Lease.
Exhibit A -- Leased Premises Legal Description
Exhibit B -- Site Plan
3. Leased Premises. Landlord hereby leases to Tenant, and Tenant hereby
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leases and takes from Landlord, the improved real property commonly known as the
Special Weapons Storage Area near the Grant County Airport in Moses Lake,
Washington (herein the "Leased Premises" or the "Premises"). The Leased Premises
consist of the real property legally described in attached Exhibit A and the
buildings and structures shown on the Site Plan attached as Exhibit B.
4. Term. The term of this Lease shall be for a period of ten (10) years,
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commencing on the first day of July, 1998 and ending on the 30th day of June,
2008, unless extended as provided herein. As used herein the term "Lease Year"
shall mean the twelve (12) calendar month period commencing July 1, 1998 and
ending on June 30, 1999 and each twelve (12) calendar month period thereafter
during the term of this Lease.
5. Rent.
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5.1. Minimum Rent. During the (10) year term, Tenant covenants and
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agrees to pay Landlord, without deduction or offset, as monthly minimum rent for
the Leased Premises, the following amounts, in lawful money of the United
States, per month in advance on the first day of each and every calendar month
during each and every Lease Year of the term of the Lease:
Lease Year Monthly Minimum Rent
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July 1, 1998 - June 30, 1999 $12,000.00
July 1, 1999 - June 30, 2000 $12,300.00
July 1, 2000 - June 30, 2001 $12,607.50
July 1, 2001 - June 30, 2002 $12,922.69
July 1, 2002 - June 30, 2003 $13,245.75
July 1, 2003 - June 30, 2004 $13,576.90
July 1, 2004 - June 30, 2005 $13,916.32
July 1, 2005 - June 30, 2006 $14,264.23
July 1, 2006 - June 30, 2007 $14,620.83
July 1, 2007 - June 30, 2008 $14,986.35
If the term ends prior to its expiration date, monthly minimum rent for any
partial month at the end of the term shall be prorated on a daily basis and paid
by Tenant in advance.
5.2. Additional Rent. This Lease is entered into by Landlord for the
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express purpose of providing Landlord with net income from minimum rent, free
and clear of any and all expenses, charges, taxes, liens or impositions of any
kind. In addition to the minimum rent, Tenant shall pay as additional rent all
real or personal property taxes or other assessments, insurance premiums and
operating and maintenance charges arising out of the Leased Premises or Tenant's
use and occupancy thereof.
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6. Utilities. Tenant covenants and agrees to pay all charges for heat,
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light, sewer, water and all services and public utilities which may be used in
or charged against the Leased Premises during the term of this Lease. All
amounts due hereunder for utilities shall be deemed additional rent. Landlord
shall not be liable for the failure of any utility services for any reason
whatsoever, unless caused solely by Landlord's negligence or willful misconduct.
7. Taxes and Assessments. During the term of this Lease, Tenant
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covenants and agrees to pay all real estate taxes and assessments on the Leased
Premises or contents thereof directly to the taxing authority before
delinquency. Landlord shall provide Tenant with copies of all tax and assessment
statements that are sent to Landlord. All amounts due hereunder for real estate
taxes and assessments shall be deemed additional rent. Any taxes and assessments
payable during the year in which this Lease ends shall be prorated for the
portion of the year the Leased Premises are under lease by Tenant. At Landlord's
request, Tenant shall provide Landlord with receipts for tax payments or other
evidence of payment. With respect to assessments which may be levied against or
upon the Leased Premises, during the Lease term, Tenant shall be required to pay
each year only the amount of such annual installments as shall be payable during
any year of the Lease term (with appropriate proration for any partial year),
and Tenant shall have no obligation to continue such payments after the
termination of this Lease. Tenant shall be responsible for all personal property
taxes attributable to Tenant's property. Subject to Landlord's prior written
consent, Tenant may, at its sole discretion, appeal the valuation of the Leased
Premises for real property tax purposes.
8. Business Purpose. The Leased Premises may be used and occupied by
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Tenant for research and manufacture of aerospace and defense related products,
including but not limited to propellants, with associated testing, engineering
and management activities. Tenant shall, at its expense, comply with all laws
regulating the use of the Premises and Tenant's activities thereon.
9. Condition of Premises. Tenant and its predecessor-in-interest have
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used and occupied the Leased Premises for a continuous period of approximately
sixteen (16) years under a prior lease dated July 14, 1982. Tenant has inspected
the Leased Premises and accepts the premises "as is," in its existing condition.
Tenant acknowledges that Landlord has made no representations to Tenant
respecting the condition of the Premises, the buildings and related improvements
or their mechanical/electrical/utility systems. Tenant shall keep the Leased
Premises neat, clean, and in a sanitary condition, to the satisfaction of the
Board of Health and Fire Department of the City of Moses Lake and its
inspectors; and shall comply with each and all applicable federal and state
statutes and all ordinances of the City of Moses Lake now in force or hereafter
enacted pertaining to the use and occupancy of said Premises by Tenant. Tenant
shall control weeds on the Premises as required by the local weed control
district.
10. Liability Insurance. Tenant shall, commencing on the lease
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commencement date and during the entire term of this Lease, keep in full force
and effect a policy or policies of commercial general liability and property
damage insurance with respect to the Leased Premises with coverage on an
"occurrence basis" for bodily injury and property damage, in an amount not less
than $3,000,000 per occurrence and $5,000,000 in the aggregate. Tenant's
commercial
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general liability insurance coverage shall be reviewed at three (3) year
intervals during the term of this Lease to determine adequacy of coverage and
compliance with current industry standards. Each such policy shall name Landlord
as an additional insured and shall contain a clause that the insurer shall not
cancel or materially change such liability insurance without giving Landlord at
least thirty (30) days prior written notice. Liability insurance shall be
written by insurance companies authorized to do business in the State of
Washington and accorded a rating by A.M. Best Company of "A" or better (or a
comparable rating by any comparable successor rating agency). A certificate of
liability insurance for each such policy shall be delivered to Landlord.
11. Property Insurance and Waiver of Subrogation. Commencing on the lease
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commencement date and at all times during the term of this Lease, Tenant shall
maintain in effect upon the Leased Premises, fire and extended property
insurance coverage for physical loss or damage to the buildings and improvements
on the Leased Premises (including earthquake) and 100% (one year) rental income
loss insurance written by insurance companies authorized to do business in the
State of Washington and accorded a rating by A.M. Best Company of "A" or better
(or a comparable rating by any comparable successor rating agency). The property
insurance policy or policies shall be written in the form of replacement cost
insurance in an amount not less than one hundred percent (100%) of the full
replacement cost of the Tenant's Building, with building ordinance and increased
cost of construction coverage. Landlord shall be designated as an additional
insured on all such policies. Said policies shall provide that notice of
cancellation of any policy or endorsement shall be given to Landlord at least
thirty (30) days prior to such cancellation. Certificates of property insurance
coverage and copies of all endorsements shall be furnished to Landlord prior to
the lease commencement date. Landlord and Tenant hereby mutually waive their
respective rights of recovery against each other for any loss insured by fire,
extended coverage or other property insurance policies existing for the benefit
of the respective parties. Each party shall obtain any policy endorsements
necessary to evidence waiver of subrogation by the insurer against the parties.
It shall be Tenant's responsibility to carry such fire, extended coverage
and other insurance as it desires on its business and property located in or
about the Leased Premises. Tenant agrees that any and all such insurance
policies covering the business and property of Tenant 'shall be endorsed so as
to waive any subrogation claim against Landlord. Neither Landlord nor Landlord's
agent shall be liable for any damage sustained by Tenant or others, either to
person or property caused by any defects in the Leased Premises or hereafter
occurring therein; or due to the buildings on the Leased Premises or any part or
appurtenance thereof, becoming out of repair; or caused by fire or by the
bursting or leaking of water, gas, sewer or steam pipes; or from any act or
neglect of Tenant or other occupant of said buildings, or any other persons,
including Landlord or Landlord's agent or employees, or due to the happening of
any accident from any cause in and about said buildings. Tenant agrees to
defend, indemnify and hold harmless Landlord and Landlord's agents from and
against all loss, liability, cost or expense including attorneys' fees arising
out of any and all claims for damage suffered or alleged to be suffered in or
about the Leased Premises by any person, firm or corporation, except for claims
arising solely from the negligence or intentional acts of Landlord or its
agents.
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12. Hazardous Substances.
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12.1. Compliance with Law. In its use of the Leased Premises, Tenant
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shall comply with all applicable laws, rules and regulations pertaining to the
use, disposal, treatment, generation, storage or sale of any substances
designated as, or containing components designated as hazardous, dangerous,
toxic or harmful, or subject to regulation by any federal, state or local law,
regulation, statute or ordinance (collectively referred to as "Hazardous
Substances"). With respect to any such Hazardous Substance, Tenant shall:
12.1.1. Comply with all applicable governmental rules,
regulations and requirements regarding the proper and lawful use, sale,
transportation, generation, treatment, and disposal of Hazardous Substances; and
12.1.2. Allow Landlord or Landlord's agent or representative
to enter upon the Leased Premises at all times to check Tenant's compliance with
all applicable governmental regulations regarding the Hazardous Substances.
12.2. Cleanup Costs, Default and Indemnification.
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12.2.1. Tenant shall be fully and completely liable to
Landlord for any and all cleanup costs, and any and all other charges, fees,
penalties (civil and criminal) imposed by any governmental authority with
respect to Tenant's use, disposal, transportation, generation and/or sale of
Hazardous Substances, in or about the Leased Premises.
12.2.2. Tenant shall indemnify, defend and save Landlord
harmless from any and all of claims, costs, fees, penalties and charges assessed
against or imposed upon Landlord (as well as Landlord's attorneys' fees and
costs) as a result of Tenant's use, disposal, transportation, generation and/or
sale of Hazardous Substances or the release thereof in or about the Leased
Premises during the term of this Lease.
12.2.3. Upon Tenant's default under this Paragraph 12, in
addition to the rights and remedies set forth elsewhere in this Lease, Landlord
shall be entitled to the following rights and remedies:
12.2.3.1. At Landlord's option, to terminate this
Lease for default as provided in Article 22; and
12.2.3.2. To recover any and all damages associated
with the default, including, but not limited to cleanup costs and charges, civil
and criminal penalties and fees, any and all damages and claims asserted by
third parties, and Landlord's attorneys' fees and costs.
12.3. Landlord's Obligations. Except for Tenant's obligations under
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Section 12.1 and 12.2 above, Landlord shall indemnify, defend and save Tenant
harmless from any and
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all claims, costs, fees, penalties and charges assessed against or imposed upon
Tenant (as well as Tenant's attorneys' fees and costs) as the result of
Landlord's use, disposal, transportation, generation and/or sale of Hazardous
Substances or the release thereof in or about the Leased Premises prior to
Tenant's (or its predecessor's) entry into possession on or about July 1, 1982.
The parties acknowledge that the Hold Harmless Agreement dated March 20, 1990
(Tenant was then known as Rocket Research Company) between the parties remains
in full force and effect.
13. Accidents. Tenant shall defend, indemnify and hold the Landlord and
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Landlord's agents harmless from all liability, claims or damages of every kind
and nature whatsoever that may be claimed or accrue by reason of any accident in
or about the Leased Premises or from Tenant's use or occupation of the Leased
Premises and areas adjacent thereto or caused by the acts or neglect of the
Tenant or any agent of Tenant. Tenant agrees that neither Landlord nor
Landlord's agents shall be liable to Tenant or to any person for claims arising
from any defect in the construction or present condition of the Premises,
whether known or unknown, except a claim arising out of Landlord's failure to
repair or remedy a defect for which Landlord is responsible under Section 15.2
within thirty (30) days after Tenant's written notice of such defect to
Landlord. In case Landlord shall, without fault on its part, be made a party to
any litigation related to any accident in or about the Leased Premises, Tenant's
use or occupation of the Leased Premises or any act or omission of Tenant or its
agents, then Tenant shall defend, indemnify, protect and hold Landlord harmless
and shall pay all costs, expenses, and reasonable attorneys' 'fees incurred or
paid by Landlord in connection with such litigation. All personal property on
the Leased Premises shall be at the risk of Tenant.
14. Damage by Fire or Other Casualty. In case the improvements on the
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Leased Premises are destroyed or substantially damaged by fire, earthquake, or
other casualty during the term of this Lease, Tenant shall give Landlord prompt
written notice thereof. If the improvements on the Leased Premises are destroyed
or substantially damaged by fire or other casualty, Landlord or Tenant shall
have the right at its option to terminate this Lease by written notice to the
other. In the event of such termination of this Lease, the rights and
liabilities of the parties hereto shall be determined and adjusted as of the
date of such substantial damage or destruction, and the Lease shall terminate.
Any such termination may be made by notice in writing of exercise of its option
to terminate the Lease within sixty (60) days following the date of the
destruction or damage. For purposes of this paragraph, damage will be deemed to
be substantial if the reasonable cost of repairing and restoring the damaged or
destroyed buildings and improvements for Tenant's use exceeds fifty percent
(50%) of the value of such buildings and improvements prior to such damage.
If less than all or a substantial portion of the buildings and improvements
on the Leased Premises are damaged or destroyed and Landlord elects to rebuild
and restore, then the Lease shall not be terminated, but shall remain in full
force and effect subject to the following provisions. In the event that the
Lease is not terminated, Landlord will rebuild and restore, at its expense and
with reasonable diligence, the damaged or destroyed portions of the Premises as
nearly as practicable to the condition they were in prior to such damage or
destruction, provided, however, that the requirement to rebuild and restore the
Premises shall not extend to any
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furnishings, fixture, or equipment which Tenant has previously installed in the
Premises, whether or not title to such items had passed to Landlord under other
provisions of this Lease. During the period of such rebuilding and restoration
the rent shall be abated in the same ratio that the portion of the said Leased
Premises rendered for the time being unfit for occupancy shall bear to the whole
Leased Premises. Landlord and Tenant agree that any and all insurance payments
for fire damage or destruction to the improvements on the Leased Premises shall
be used for the sole purpose of repairing, rebuilding and/or restoring the
improvements on the Leased Premises, unless this Lease is terminated as the
result of such damage or destruction. If, under the terms of this Lease, the
improvements on the Leased Premises are not rebuilt or restored, the insurance
proceeds for loss of Landlord's building and property and loss of rents shall
become the property of the Landlord, and the Lease shall terminate effective as
of the date of such damage or destruction. Tenant shall release its interest and
endorse all insurance proceeds checks to Landlord when no rebuilding is
undertaken or for payment of rebuilding and restoration when such is undertaken,
provided that property insurance on Tenant's trade fixtures, equipment and
personal property shall be the property of Tenant. Notwithstanding any other
provision of this paragraph to the contrary, in the event there are insufficient
insurance proceeds available to the Landlord to rebuild and restore the Premises
damaged by casualty, Landlord shall have the right at its option to terminate
this Lease.
15. Maintenance and Repairs.
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15.1. Tenant's Obligations. Except as provided in Section 15.2 below,
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Tenant shall at all times throughout the lease term at its sole cost and expense
keep and maintain the Leased Premises and every part thereof, exterior and
interior (whether or not the need for such repairs occurs as the result of
Tenant's use, the elements or the age of any portion of the Premises), including
without limitation the interior and exterior of all buildings, exterior walls
and roofs of buildings and all building fixtures, equipment, systems, utilities
and appurtenances thereof (including lighting, heating and plumbing fixtures and
HVAC systems) and all fences, gates, parking areas, driveways, roads, exterior
lighting, landscaping and sprinkler systems in good order, condition and repair.
The costs of any such repairs shall be billed directly to and paid by Tenant.
Tenant shall immediately replace all broken glass in the Premises; make any
necessary repairs to, or replacements of all mechanical, electrical and plumbing
systems, apparatus and mechanisms; keep all plumbing operational and in good
condition and repair including pipes, drains, toilets, basins, water heaters and
the heating system of the Premises; and keep all utilities, including circuit
breaker and panel box and meters in good condition and repair. Tenant shall
permit no waste, injury or damage to the Premises. If Tenant fails or neglects
to perform its obligation to preserve and maintain the Leased Premises in good
condition and repair, then Landlord may, at its option, put or cause the same to
be put into good condition and repair, and in such case Tenant shall pay the
cost thereof on demand.
15.2. Landlord's Obligations. Subject to Tenant's repair and
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maintenance obligations under Section 15.1 above, Landlord agrees to maintain in
good condition and repair, at its expense, the structure and foundation of all
buildings on the Premises. Landlord shall have no other obligation to maintain
or repair the Premises or any portion thereof.
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16. Capital Improvements. If the need for any major new major new
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improvements related to Tenant's use of the Leased Premises or the repair or
replacement of any major improvement in or to the Premises, having a cost in
excess of $10,000.00 (collectively "Capital Improvement"), arises during the
lease term, Landlord or Tenant may, by written notice to the other, request that
the Capital Improvement be made. Capital Improvements shall not include normal
maintenance and repair items or the repair or replacement of improvements at a
cost of less than $10,000.00. The party requesting the Capital Improvement shall
obtain and present to the other party a description of the proposed Capital
Improvement, plans (if reasonably available) and one or more cost estimates. The
proposed Capital Improvement shall be subject to mutual approval of Landlord and
Tenant, which approval shall not be unreasonably withheld or delayed. If either
party objects to the proposed Capital Improvement or its cost, the parties agree
to negotiate in good faith to resolve the objection or to reduce the cost. If,
after good faith negotiations, the parties are unable to agree on the proposed
Capital Improvement, the Capital Improvement issue may be submitted to
arbitration as provided in Article 30 below at the request of either party. (For
purposes of this Section 16, the exclusions contained in Sections 30.3.1 and
30.3.2 shall not apply.)
Landlord agrees to pay the cost of a mutually approved or arbitrator
ordered Capital Improvement, and Tenant agrees to wholly or partially reimburse
Landlord for the cost of such Capital Improvement by paying additional rent as
provided herein. On the first day of the first month following completion of an
approved Capital Improvement, Tenant shall commence payment of monthly
additional rent in an amount sufficient to amortize the cost of the Improvement
over a ten (10) year period with interest at the rate of ten percent (10%) per
annum. Additional rent shall be due and payable with, and in addition to,
monthly payment of minimum rent. Tenant shall have no obligation to pay such
additional rent following the expiration of the ten (10) year lease term. If
this Lease is terminated prior to the expiration of the ten (10) year lease
term, as the result of Tenant's exercise of its option to terminate under
Article 31 or as the result of Tenant's breach of this Lease, then Tenant agrees
that, in addition to any other amounts due Landlord, the full amount of
additional rent payable for Capital Improvements, which would have been paid
during the balance of the lease term (without the assessment of unearned
interest), shall become immediately due and payable as of the date of such
termination.
17. Alterations. Subject to Landlord's prior written approval of plans
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and specifications, which approval shall not be unreasonably withheld or
delayed, Tenant may make alterations and improvements to the Leased Premises
reasonably necessary and appropriate for the conduct of Tenant's business.
Tenant shall have no right to make any exterior or structural alterations to any
building without Landlord's prior written consent. If Landlord consents to
Tenant's proposed alterations, Landlord shall inform Tenant in connection with
such consent whether Landlord will require Tenant to remove the proposed
alterations and restore the Premises at the expiration of the term. All such
alterations, additions and improvements shall be at the sole cost and expense of
Tenant. With the exception of any movable partitions, trade fixtures, appliances
and equipment which may be installed with Landlord's consent, all such
alterations, additions and improvements shall become the property of Landlord
and shall remain
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in and be surrendered with the Premises as a part thereof at the termination of
this Lease, without disturbance or injury, provided that, at Landlord's option
(which option must be exercised at the time consent to such alteration is given
as provided above), Tenant shall, at its expense, remove such alterations and
restore the Premises to its pre-existing condition, normal wear and tear
excepted, at the expiration or earlier termination of this Lease. If Tenant
performs work on the Premises, Tenant agrees to comply with all laws,
ordinances, rules and regulations of any authorized public authority. Tenant
further agrees to defend, indemnify and save Landlord and its property free and
harmless from lien, damage, loss or expense arising out of said work.
Tenant shall have the right to construct on, or move additional structures
or buildings onto, the Premises subject to thirty (30) days prior written notice
to and approval by Landlord. Said buildings or structures shall be constructed
in accordance with the Grant County Building. Code. Landlord's approval shall
not be unreasonably withheld in light of the present use and type of buildings
on the Premises. Tenant shall bear all costs and expenses associated with
construction of said additional structures or buildings. Ownership of any
buildings built and permanently attached to the Premises shall revert to
Landlord, and Tenant agrees to execute any documents necessary to convey title
to said buildings to Landlord. Ownership of structures moved to or constructed
on the Premises which may be readily relocated shall remain with Tenant. Tenant
shall have, the right to remove said movable structures at any time upon thirty
(30) days prior written notice to Landlord. Tenant shall not be charged any
additional rent for the newly constructed or moved structures.
18. Condemnation. If all or any substantial portion of the Leased
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Premises shall be taken by any public or quasi-public authority under the power
of eminent domain or conveyance in lieu thereof (hereinafter "condemnation"),
Landlord or Tenant shall have the right at its option to terminate this Lease.
In the event of such a termination, the rights and liabilities of the parties
shall be determined and adjusted as of the date the condemning authority has a
right to possession, and the Lease shall terminate. Upon such termination,
Tenant shall surrender possession of the Leased Premises to Landlord. Any such
termination may be made by notice in writing of its option to terminate the
Lease given within sixty (60) days following the date on which the parties
received notice of the proposed taking.
A condemnation of a substantial portion of the Leased Premises shall be
deemed to be any of the following:
18.1. If twenty-five percent (25%) or more of the value of the
Premises is taken in the condemnation; or
18.2. If regardless of the value of the amount of the Premises taken,
the cost of repairing and restoring the remainder of the Premises for Tenant's
use exceeds twenty-five percent (25%) of the value of the entire Premises prior
to condemnation or in Tenant's good faith opinion the condemnation has rendered
the remaining Premises unusable for Tenant's actual use of the Premises.
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For purposes of this Article 18, the value of the Premises shall be the quotient
determined by dividing the total annual minimum rent by ten percent (10%). If
less than all or a substantial portion of the Premises is taken by condemnation,
then, at Landlord's option, the Lease shall remain in full force and effect
subject to the provisions set forth below. If either party cannot or does not
elect to terminate this Lease as aforesaid, this Lease shall be and remain
unaffected by any such condemnation, except that the rent shall be equitably
abated to the extent that Tenant is deprived of use of the Premises. In the
event that the Lease is not terminated, Landlord will, at its expense, restore
with reasonable diligence the remaining portions of the Premises as nearly as
practicable to the condition they were in prior to such condemnation, provided,
however, that there are sufficient condemnation proceedings available to
Landlord to restore the Premises, and provided further that the requirement to
restore the Premises shall not extend to any furnishings, fixtures, or equipment
which Tenant had previously installed in the Premises, whether or not title to
such items had passed to. Landlord under other provisions of this Lease.
Landlord reserves, and shall be entitled to receive, the entire damage
award in the condemnation proceedings. Tenant hereby specifically grants and
assigns to Landlord any interest which Tenant may have in or to any portion of
such award by virtue of Tenant's leasehold estate. Notwithstanding the
foregoing, Tenant shall be entitled to claim compensation for Tenant's moving
expenses and the value of Tenant's trade fixtures so long as title to such
fixtures has not passed to Landlord in accordance with other provisions of this
Lease.
19. Inspection Fees. Tenant shall, during the term of this Lease, pay all
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fees due the city, county, or state, on account of any inspection made on or
about the Leased Premises by any officer of said city, county, or state, which
inspections are in relation to the use and occupancy of said Premises by Tenant
or the conduct of the business of Tenant therein.
20. Liens and Insolvency. Tenant shall keep the Leased Premises free from
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any and all liens, claims, and encumbrances arising out of Tenant's use and
occupancy of the Premises or out of any work performed, materials furnished or
obligations incurred by Tenant, including taxes. Tenant has no authority to
incur any debt or charge against Landlord or Landlord's property. Tenant has no
authority to create any lien against the Leased Premises for any work performed
or materials furnished for or on behalf of Tenant. If Tenant becomes insolvent
or bankrupt, or if a receiver is appointed, then Tenant shall be in default
under the terms of this Lease, and Landlord may terminate this Lease at its
option in accordance with Paragraph 22 hereof.
21. Signs and Advertising. Tenant may erect and install or otherwise
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utilize signs, symbols and other advertising or decorative matter visible from
the exterior of the Premises in accordance with applicable sign ordinances. At
the termination of this Lease, all such signs, symbols and advertising matter
attached to or painted by Tenant upon the Premises, whether on the exterior or
interior thereof, shall be removed by Tenant at its own expense. Tenant shall
repair any damage or injury to the Premises and correct any unsightly condition,
caused by the maintenance or removal of any sign.
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22. Landlord's Access. Landlord hereby reserves and Tenant hereby grants
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to said Landlord or Landlord's agents, the right to enter the Leased Premises
upon reasonable notice at all reasonable times for the purpose of inspecting the
Premises and making necessary repairs when Tenant fails or refuses to make the
same, but this right, or the granting of the same, shall not be construed as an
agreement on the, part of the said Landlord to make any repairs whatsoever.
Landlord, or Landlord's agents, shall have the right to place and maintain "For
Lease" signs upon the said Premises for a period of 90 days prior to the
expiration of this Lease.
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23. Default, Cancellation & Re-Entry.
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23.1. Payments Deemed Rent. Time is of the essence hereof. Any
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payment due Landlord from Tenant hereunder shall be deemed rent. Unpaid rent and
any other payment due Landlord hereunder, which is not paid within ten (10) days
after such sum is due, shall bear interest at the rate of one and one-half
percent (1.5%) per month or the maximum lawful rate of interest, whichever is
less, from the original due date until paid.
23.2. Termination of Lease. If Tenant fails to keep and perform any
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of the covenants herein contained, Landlord may terminate this Lease upon giving
the notice required by law, and re-enter said Premises, but notwithstanding such
re-entry by Landlord, the liability of Tenant for the rent provided herein shall
not be extinguished for the balance of the term of this Lease. Upon such
termination, Landlord may recover from Tenant the following:
23.2.1. Unpaid Rent at Termination. The unpaid rent,
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additional rent and all other amounts that had been earned at the time of
termination.
23.2.2. Unpaid Rent at Award. The worth at the time of award
--------------------
of the amount by which the reasonable value of the unpaid rent and additional
rent which would have been earned after termination until the time of award
exceeds the amount of such rental loss that Tenant proves could have been
reasonably avoided.
23.2.3. Future Rent. The worth at the time of award of the
-----------
amount by which the reasonable value of the unpaid rent and additional rent for
the balance of the term of this Lease exceeds the amount of such rental loss
that Tenant proves could have been reasonably avoided; and
23.2.4. Other Amounts. Any other amount necessary to
-------------
compensate Landlord for all losses proximately caused by Tenant's failure to
perform his obligations under this Lease or that in the ordinary course of
events would be likely to result therefrom.
23.3. Terms Defined. As used in this Paragraph 22, the following
-------------
terms are defined as follows:
23.3.1. "Worth at the Time of Award." The "worth at the time
--------------------------
of award," of the amounts referred to in subparagraphs 23.2.2 and 23.2.3 is
computed by allowing interest at the lesser of the rate of interest specified in
subparagraph 23.1 or the maximum lawful rate. The "worth at the time of award"
of the amount referred to in subparagraph 23.2.3 is computed by discounting such
amount at the discount rate of the Federal Reserve Bank of San Francisco at the
time of award plus one percent (1%).
23.3.2. "Time of Award." The "time of award" as used in
----------------------------------------------
paragraph 23.2 is the date on which judgment is entered by a court of competent
-------------------------------------------------------
jurisdiction.
12
23.3.3. "Reasonable Value." The "reasonable value" of the
----------------
amount referred to in subparagraph 23.2.2 is computed by determining the
mathematical product of (1) the "reasonable annual rental value" (as herein
defined) and (2) the number of years, including fractional parts thereof,
between the date of termination and the time of award. The "reasonable value" of
the amount referred to in subparagraph 23.2.3 is computed by determining the
mathematical product of (1) the "reasonable annual rental value" (as herein
defined) and (2) the number of years, including fractional portions thereof,
remaining in the balance of the term of this Lease after the time of award. As
used in this subsection the term "reasonable annual rental value" is computed by
obtaining the sum of the three following components: (1) the minimum annual
rental; plus (2) all additional rent, paid or payable during the calendar year
immediately preceding the time of award.
23.3.4. Tenant's Personal Property. If upon re-entry by
--------------------------
Landlord, there remains any personal property of Tenant or others upon the
Premises, Landlord may (but without the obligation to do so) remove said
personal property and place the same in a public warehouse or storage, as may be
reasonable, at the expense and risk of the owners thereof. Tenant shall
reimburse Landlord for any expense incurred by Landlord in connection with said
removal and/or storage. Tenant covenants and agrees to make good to Landlord any
deficiency arising from a re-entry and reletting of the Premises, including the
costs of any necessary renovation and alteration of the Premises, and that
portion of any leasing commission paid by Landlord and applicable to the
unexpired lease term of the Lease. Tenant shall pay such deficiency each and
every month as the amount thereof is ascertained by Landlord.
23.3.5. Notice of Default. Tenant shall be and remain liable
-----------------
to Landlord for any and all cost, damage or expense caused by Tenant's breach of
any covenant or agreement contained herein. Prior to declaring a default under
the terms of this Lease, Landlord shall give Tenant thirty (30) days' written
notice of the default, except a default in the payment of rent or additional
rent or in the event Tenant fails to maintain insurance as required hereunder,
in which case the written notice shall be only five (5) days. In the event such
default is not cured within said thirty (30) days, or within five (5) days in
the case of a default in minimum rent or additional rent, Landlord may proceed
to take any and all action which is available to it under the terms of this
Lease or at law to protect its rights as Landlord, provided, that if the nature
of said non-monetary default is such that it cannot be cured within a period of
thirty (30) days in the exercise of due diligence by Tenant, then Tenant shall
have such additional time as may be required to accomplish the cure of said
default in the exercise of reasonable diligence.
23.3.6. Attorneys' Fees. If any arbitration or litigation is
---------------
brought to interpret or enforce any of the covenants or agreements of this Lease
or to recover damages or otherwise, the prevailing party in such arbitration or
litigation, including any bankruptcy court proceedings and any appeal, shall be
entitled to an award of all costs, expenses, and reasonable attorneys' fees.
24. Assignment and Subletting.
-------------------------
13
24.1. Assignment. This Lease may not be assigned, in whole or in
----------
part, for security or otherwise, and no assignment shall be effective, without
the written consent of Landlord. If notice of any proposed assignment is given
to Landlord at least sixty (60) days prior to its proposed effective date,
together with the instrument proposed to evidence such assignment, which
instrument contains the agreement of any assignee to assume and be bound by all
of the terms, conditions and covenants of this Lease to be performed by Tenant,
in a form satisfactory to Landlord, then Landlord shall not unreasonably
withhold its consent to the assignment. If consent is once given by the Landlord
to the assignment of this Lease, or any interest therein, Landlord shall not be
barred from afterwards refusing to consent to any further assignment. This Lease
shall not be assignable by operation of law, nor at any time when a default has
occurred and is continuing. If Tenant is a corporation, then any transfer of
this Lease from Tenant by merger, consolidation or liquidation and any change in
ownership or power to vote the majority of its outstanding voting stock, shall
constitute an assignment for the purpose of this section, provided that, subject
to Tenant's compliance with the notice and assumption requirements set forth
above, Landlord agrees to consent to any transfer of Tenant's interest under
this Lease to any entity which owns and controls Tenant or which is owned and
controlled by Tenant.
24.2. Subletting. The Leased Premises may not be sublet, in whole or
----------
in part, and no subletting shall be effective, without the written consent of
Landlord. If notice of any proposed subletting is given to Landlord at least
sixty (60) days prior to its proposed effective date, together with instrument
proposed to evidence such subletting, then Landlord shall not unreasonably
withhold its .consent to the subletting. If consent is once given by the
Landlord to any subletting, Landlord shall not be barred from afterwards
refusing to consent to any further subletting. Notwithstanding the foregoing, no
subletting shall be permitted at any time when default has occurred and is
continuing.
24.3. Further Conditions. In addition, and as a further condition of
------------------
the approval and effectiveness of any sublease, the minimum rent otherwise
payable under this Lease shall be increased, in the case of a sublease, to an
amount equal to the total of all amounts payable by the subtenant to the Tenant
in excess of the otherwise payable minimum rent, (less the amount of additional
rent payable by subtenant for its share of taxes, utilities and similar
charges). Such increased minimum rent shall be paid to Landlord beginning on the
effective date of such sublease or other transfer, and the additional rent and
all other charges payable under this Lease shall remain in effect as provided
herein.
24.4. Tenant Remains Liable. Notwithstanding any assignment, sublease
---------------------
or transfer, the original Tenant shall remain fully liable under this Lease for
the payment of all sums due and the performance of all terms and covenants of
this Lease. Any increased minimum rent payable pursuant to the preceding
provisions of this section shall remain in effect until a higher minimum rent
otherwise provided herein, if so provided, would be payable.
24.5. Reimbursement of Expenses. Tenant shall reimburse Landlord for
-------------------------
14
Landlord's reasonable expenses including attorney's fees incurred in conjunction
with the processing and documentation of any requested assignment or subletting.
25. Expiration of Lease. Tenant covenants and agrees to surrender the
-------------------
Leased Premises without notice at the expiration of the term of this Lease in
the same or better condition as when first obtained by Tenant, reasonable wear
and tear and damage by insurable risks excepted. Tenant further agrees to remove
all of its personal property from said Premises, to clean the Premises and to
deliver to Landlord all keys to the Premises at the expiration of the term. At
the expiration or earlier termination of this Lease, Landlord shall have the
right, but not the obligation, to remove from the Leased Premises all personal
property located therein, and may store the same in any place selected by
Landlord, including, but not limited to, a public warehouse, at the expense and
risk of the owner thereof.
26. Hold-Over. If Tenant shall, with the written consent of Landlord, hold
---------
over after the expiration of the term of this Lease, such tenancy shall be for
an indefinite term on a month to month tenancy, which tenancy may be terminated
as provided by the laws of the State of Washington. During such tenancy, Tenant
agrees to pay to Landlord rent in an amount equal to one hundred fifty percent
(150%) of the rent payable prior to the expiration of the Lease term, unless a
different rate is agreed upon, and to be bound by all of the terms, covenants,
and conditions as herein specified, so far as applicable.
27. Bankruptcy. If at any time: (a) Tenant makes any general assignment or
----------
general arrangement for the benefit of creditors; (b) Tenant files or has filed
against it a petition in bankruptcy, including reorganization or arrangement, or
(c) a trustee or receiver is appointed to take possession of any of Tenant's
assets located at the Premises or of Tenant's interest in this Lease, then
Landlord may, if Landlord so elects, at any time thereafter, terminate this
Lease upon giving to Tenant ten (10) days notice in writing of Landlord's
intention to do so, and this Lease shall expire and come to an end at the date
fixed in such notice as if the date were the date originally fixed in this Lease
for the expiration hereof. If the Landlord does not exercise the foregoing
option to terminate or if it is precluded by law from doing so, then this Lease,
being a lease of nonresidential real property, shall be deemed rejected and
terminated by Tenant pursuant to Section 365(d)(4) of the United States
Bankruptcy Code, as now in effect or as hereafter amended, unless Tenant shall
have affirmatively and after notice and a hearing obtained a bankruptcy court
order assuming the Lease in full, curing all past defaults, and providing
adequate assurances of future performance.
28. Late Charge. Tenant acknowledges that late payment by Tenant to
-----------
Landlord of rent or other sums due hereunder will cause Landlord to incur costs
not contemplated by this Lease, the exact amount of which would be extremely
difficult and impractical to ascertain. Such costs include, but are not limited
to, processing and accounting charges, and late charges which may be imposed on
Landlord by the terms of any mortgage or deed of trust covering the Premises.
Therefore, in the event Tenant should fail to pay any installment of rent or any
other sum due hereunder within ten (10) days after such sum is due, Tenant-shall
pay to Landlord as additional rent a late charge equal to five percent (5%) of
each such installment or sum. Waiver
15
of said five percent (5%) late charge with respect to any installment or sum
shall not be deemed to constitute a waiver with respect to any subsequent
installment or sum so due.
16
29. Notices. All notices under and payments made pursuant to this Lease
-------
shall be given or made to the respective parties hereto at the following
addresses:
TO LANDLORD: Zaser & Longston, Inc.
0000 000xx Xxxxx X.X.
Xxxxxxxx, XX 00000
TO TENANT: Primex Aerospace Company
00000 Xxxxxxx Xx.
X.X. Xxx 00000
Xxxxxxx, XX 00000-0000
unless by prior notice hereunder a different person or address shall have been
specified for such purpose, in which event, notices and payments shall be made
as so specified. All notices shall be in writing and shall be deemed to have
been effectively given upon the receipt thereof if delivered by hand or sent by
ordinary mail, or upon the mailing thereof if mailed by certified mail, return
receipt requested, addressed as above specified.
30. Arbitration.
-----------
30.1. Matters Subject to Arbitration. The parties agree that
------------------------------
potential disputes and issues between Landlord and Tenant regarding the meaning
and interpretation of certain provisions of this Lease and the correct
determination or calculation of certain amounts due hereunder should be resolved
by arbitration, not litigation. Accordingly, the parties agree that, with the
exception of the matters described in Section 30.3, disputes and issues arising
out of this Lease shall be subject to arbitration, unless otherwise mutually
agreed.
30.2. Arbitration Procedure. Any arbitration specified in this Lease
---------------------
shall be conducted in Seattle, Washington or other mutually acceptable location
by one (1) arbitrator selected in accordance with the arbitration rules of the
American Arbitration Association ("AAA") or other mutually acceptable dispute
resolution or arbitration service. The arbitrator shall be selected from the
panel of qualified commercial arbitrators in accordance with the rules of the
AAA. The arbitrator shall render his decision within thirty (30) days after the
scheduled arbitration hearing. The decision of the arbitrator shall be final,
binding and conclusive upon the parties, and a judgment may be rendered thereon
in any court having jurisdiction over the Leased Premises and the parties
hereto. Landlord and Tenant shall each pay one half (1/2) of the cost and
expense of the AAA and its arbitrator for such arbitration, provided that the
arbitrator shall have authority to award to the prevailing party in the
arbitration its reasonable attorneys' fees and all costs of arbitration
including the fees of the arbitrator.
30.3. Matters Not Subject to Arbitration. There shall be no
----------------------------------
arbitration of issues, disputes or matters except those identified in Section
29.1 above as matters to be resolved by
17
arbitration unless Landlord and Tenant agree in writing to arbitrate other
matters. Even if a matter is otherwise subject to arbitration, at the election
of either Landlord or Tenant, the following matters shall not be submitted to
arbitration:
30.3.1. Claims or causes of action in equity or seeking
primarily equitable relief;
30.3.2. Causes of action or claims which, in the aggregate of
all actions or claims in the proceeding, seek damages or relief in excess of
Twenty Five Thousand Dollars ($25,000.00);
30.3.3. Proceedings in which a party or parties other than
Landlord and Tenant are joined or are required to be joined under applicable
law; or
30.3.4. Unlawful detainer or other possessory actions
following Tenant's default.
A party shall make its election to proceed with legal action, instead of
arbitration by notice, in writing, (i) if the party making the election is the
moving party, then at least five (5) days prior to such party's institution of
legal proceedings; or (ii) if the party making the election is not the moving
party, then within ten (10) days after receipt of the other party's demand for
arbitration.
31. Tenant's Option to Terminate. On the condition that (a) no default
----------------------------
exists at the time Tenant gives its early termination notice or at the
expiration of the first five (5) Lease Years on June 30, 2003, and (b) Tenant
pays Landlord the early termination payment described herein, Tenant shall have
the right and option to terminate the lease at the expiration of the first five
(5) Lease Years on June 30, 2003 ("Early Termination") as provided herein.
Tenant may exercise its Early Termination option only by (i) giving Landlord not
less than six 6) months' prior written notice of its Early Termination election
and (ii) paying Landlord on or before June 30, 2003, the sum of (y) $650,000.00,
plus (z) an amount equal to additional rent attributable to any Capital
Improvement otherwise payable during the last five (5) years of the lease term
as provided in Paragraph 16 above (collectively the "Early Termination
Payment"). If Tenant exercises its Early Termination option and makes the early
termination payment required hereunder, the minimum rent and all other
obligations under the lease shall be paid and performed as of the date of
termination, June 30, 2003, and the lease shall then terminate.
32. Non-Waiver of Breach. The failure of Landlord or Tenant to insist upon
--------------------
strict performance of any of the covenants and agreements of this Lease by the
other party, shall not be construed to be a waiver or relinquishment of any
such, or any other covenants or agreements, but the same shall be and remain in
full force and effect during the term of this Lease.
33. Successors. The covenants and agreements of this Lease shall be
----------
binding upon the successors and assigns of the parties hereto.
18
34. Quiet Enjoyment. Landlord covenants that if and so long as Tenant pays
---------------
the minimum rent, additional rent and all other sums due hereunder and performs
all of the covenants, conditions and agreements aforesaid, Tenant shall and may
peaceably and quietly have, hold and enjoy the Premises for the term aforesaid,
subject, however, to the terms of this Lease.
35. Captions. The words "Landlord" and "Tenant" as used herein shall
--------
include the plural as well as both genders. The paragraph headings of this Lease
are not part of this Lease and, shall have no affect upon the construction or
interpretation of any part hereof.
36. Governing Law. This Lease shall be governed by and construed pursuant
-------------
to the laws of the State of Washington.
37. Limitation of Liability. In the event of any default by Landlord
-----------------------
hereunder, Tenant shall look only to Landlord's interest in the Leased Premises
for the satisfaction of Tenant's remedies; and no other property or assets of
Landlord shall be subject to levy, execution or other 'enforcement procedure for
the satisfaction of Tenant's remedies under or with respect to this Lease.
38. Partial Invalidity. Any provision of this Lease which shall prove to
------------------
be invalid, void or illegal shall in no way affect, impair or invalidate any
other provision hereof and such other provisions shall remain in full force and
effect.
39. Corporate Authority. If Tenant is a corporation, each individual
-------------------
executing this Lease on behalf of said corporation represents and warrants that
he is duly authorized to execute and deliver this Lease on behalf of said
corporation in accordance with a duly adopted resolution of the Board of
Directors of said corporation or in accordance with the bylaws of said
corporation, and that this Lease is binding upon said corporation in accordance
with its terms. If Tenant is a corporation Tenant shall, upon execution of this
Lease, deliver to Landlord a certified copy of a resolution of the Board of
Directors of said corporation authorizing or ratifying the execution of this
Lease. Landlord is a corporation, and Landlord agrees to deliver to Tenant upon
execution of this Lease similar evidence of corporate authority to execute this
Lease.
40. Entire Agreement. There are no verbal or other agreements (unless
----------------
attached hereto) which modify or affect this Lease. This Lease supersedes any
and all prior agreements executed by or on behalf of the parties hereto
regarding the Premises. Neither Landlord nor Tenant shall be bound by any
understanding, agreement, promise or representation, expressed or implied, not
specified herein or attached hereto.
19
IN WITNESS WHEREOF, the, parties hereto have executed this Lease the day
and year first written above.
LANDLORD: ZASER & LONGSTON, INC.
By: /s/
------------------------------
Name: Xxxx X. Xxxxx
Title President
TENANT: PRIMEX AEROSPACE COMPANY
By: /s/
------------------------------
Name: X.X. Xxxxx
Title: President
STATE OF WASHINGTON)
) ss.
COUNTY OF KING )
On this 11/th/ day of March, 1998, before me, the undersigned, a Notary
Public in and for the State of Washington, duly commissioned and sworn,
personally appeared Xxxx X. Xxxxx to me known to be the President of ZASER &
LONGSTON, INC., the corporation that executed the 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 is authorized to execute the said instrument and that the seal
affixed is the corporate seal of said corporation.
WITNESS MY HAND AND OFFICIAL SEAL the day and year first above written.
/s/
-----------------------------------
Printed Name: Xxxxxx X. Xxxxx
NOTARY PUBLIC in and for the State
of Washington residing at ISSAQUAH
My Commission expires: 7/28/2001
20
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this 10/th/ day of March, 1998, before me, the undersigned, a Notary
Public in and for the State of Washington, duly commissioned and sworn,
personally appeared X.X. Xxxxx to me known to be the President of PRIMEX
AEROSPACE COMPANY, the corporation that executed the 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 is authorized to execute the said instrument and that the seal
affixed is the corporate seal of said corporation.
WITNESS MY HAND AND OFFICIAL SEAL the day and year first above written.
/s/
-----------------------------------
Printed Name: Xxxxx X. Xxxxxxx
NOTARY PUBLIC in and for the State
of Washington residing at Redmond, WA
My Commission expires: 01/06/2000
21
EXHIBIT A
LEGAL DESCRIPTION
That part of Xxxxxx Air Force Base located in the South half of Sections 15 and
16, Township 20 North, Range 28 E.W.M., Grant County, Washington, described as
follows:
Beginning at a point 16,950.89 feet North and 2,822.58 feet West of the
Southeast corner of Section 33, Township 20 North, Range 28 E.W.M., (whose
Washington State Grid South zone coordinates are Y=674047.08 - X=2298909.20 and
are referred to U.S.C. & G.S. Station "SPAD" whose Washington State Grid South
zone coordinates are Y=676911.66 - X=2288625.74); thence South 72 degrees 40
feet 29 inches East, a distance of 2,526.41 feet; thence North 17 degrees 18
feet 57 inches East, a distance of 813.11 feet; thence South 72 degrees 42 feet
41 inches East, a distance of 51.31 feet, to the P.C. of a curve to the right
having a radius of 369.31 feet; thence Southeasterly along said curve through a
central angle of 24 degrees 32 feet 20 inches for a distance of 158.17 feet;
thence North 17 degrees 18 feet 57 inches East, a distance of 158.93 feet;
thence North 72 degrees 41 feet 3 inches West, a distance of 475.21 feet; thence
North 17 degrees 18feet 57 inches East, a distance of 147.20 feet; thence North
72 degrees 41 feet 3 inches West, a distance of 2,525.51 feet; thence South 17
degrees 17 feet 48 inches West, a distance of 1,085.51 feet; thence South 72
degrees 40 feet 29 inches East, a distance of 269.24 feet to the point of
beginning.
22
