EXHIBIT 10.4
INDUSTRIAL LEASE
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1. PARTIES, This Lease, dated, for reference purposes only, July 17, 1984, is
made by and between Dexter Avenue Associates (herein called "Landlord") and
Korry Electronics Co., a division of Criton Technologies (herein called
"Tenant").
2. PREMISES, Landlord hereby leases to Tenant and Tenant leases from Landlord
for the term, at the rental, and upon all of the conditions set forth herein,
that certain real property situated in the City of Seattle, County of King,
State of Washington, commonly known as 000 Xxxxxx Xxxxxx Xxxxx and described as
Approximately 29,000 sq. ft. at the southend of the 1st and 2nd floors and the
2nd floor of the middle building, said space being over the space now occupied
by Calcom, Inc. Said real property, including the land and all improvements
thereon, is herein called "the Premises".
3. TERM.
3.1 TERM. The term of this Lease shall be for three (3) years, commencing
on July 18, 1984 and ending on July 17, 1987 unless sooner terminated pursuant
to any provision hereof.
3.2 DELAY IN COMMENCEMENT. Notwithstanding said commencement date, if for
any reason Landlord cannot deliver possession of the Premises to Tenant on said
date, Landlord shall not be subject to any liability therefor, nor shall such
failure affect the validity of this Lease or the obligations of Tenant hereunder
or extend the term hereof, but in such case Tenant shall not be obligated to pay
rent until possession of the Premises is transferred to Tenant; provided,
however, that if Landlord shall not have delivered possession of the Premises
within ninety (90) days from said commencement date, Tenant may, at Tenant's
option, by notice in writing to Landlord within ten (10) days thereafter, cancel
this Lease. If Landlord shall not have delivered possession of the Premises
within one (1) year from said commencement date, Landlord may, by notice in
writing to the Tenant within ten (10) days thereafter, cancel the Lease. If
either party cancels as hereinabove provided. Landlord shall return any monies
previously deposited by Tenant and the parties shall be discharged from all
obligations hereunder.
3.3 EARLY POSSESSION. In the event that landlord shall permit Tenant to
occupy the premises prior to the commencement date of the term, such occupancy
shall be subject to all of the provisions of this Lease. Said early possession
shall not advance the termination date of this Lease.
3.4 DELIVERY OF POSSESSION. Tenant shall be deemed to have taken possession
of the Premises when any of the following occur: (a) Landlord deliver possession
of the premises to tenant and a Certificate of Occupancy is granted by the
proper governmental agency, or (b) upon a Certificate from the Landlords
architect or contractor that the Premises are ready for occupancy.
4. RENT. Tenant shall pay to Landlord as rent for the Premises equal monthly
installments of Fourteen Thousand Five Hundred And No/100's Dollars
($14,500.00) Dollars, in advance, on the first day of each month of the term
hereof. Tenant shall pay Landlord upon the execution hereof the sum of Twenty
Nine Thousand And No/100's Dollars ($29,000.00) Dollars as rent for First and
last months. Landlord will credit Tenants rent. Rent for any period during the
term hereof which is for less than one month shall be a pro rata portion of the
monthly installment. Rent shall be payable without notice or demand and without
any deduction, offset, or abatement in lawful money of the United States of
America to Landlord at the address stated herein or to such other persons or at
such other places as Landlord may designate in writing.
5. SECURITY DEPOSIT. Tenant shall deposit with Landlord upon execution hereof
the sum of _________________________________________________________ ($ ______)
Dollars as security for Tenant's faithful performance of Tenant's obligations
hereunder. If Tenant fails to pay rent or other charges due hereunder, or
otherwise default with respect to any provision of this Lease, Landlord may use,
apply or retain all or any portion of said deposit for the payment of any rent
or other charge in default or for the payment of any other sum to which Landlord
may become obligated by reason of Tenant's default, or to compensate Landlord
for any loss or damage which Landlord may suffer thereby. If Landlord so uses or
applies all or any portion of the said deposits, Tenant shall within (10) days
after written demand therefor deposit cash with Landlord in an amount sufficient
to restore said deposit to the full amount hereinabove stated and Tenant's
failure to do so shall be a breach of this Lease, and Landlord may at his option
terminate the Lease. Landlord shall not be required to keep said deposit
separate from its general accounts. If Tenant performs all of Tenant's
obligations hereunder, said deposit or so much thereof as had nor therefore been
applied by Landlord, shall be returned, without payment of interest or other
increment for its use, to Tenant (or, at Landlords option, to the last assignee,
if any, of Tenant's interest hereunder) within fifteen (15) days after the
expiration of the term hereof, or after Tenant has vacated the Premises,
whichever is later.
6. USE.
6.1 USE. The Premises shall be used an occupied only for Office &
Manufacturing Purposes.
6.2 COMPLIANCE WITH LAW. Tenant shall, at Tenant's expense, comply promptly
with all applicable statutes, ordinances, rules, regulations, orders and
requirement in effect during the term or any part of the term hereof regulating
the use by Tenant of the Premises. Tenant shall not use or permit the use of the
Premises in any manner that will lend to create waste or a nuisance, or if there
shall be more than one Tenant of the Building containing the Premises, which
shall tend to unreasonably disturb such other tenants.
6.3 CONDITION OF PREMISES. Tenant hereby accepts the Premises in their
condition existing as of the date of the possession hereunder, subject to all
applicable zoning, municipal, county and state laws, ordinances and regulations
governing and regulating the use of the Premises, and accepts this Lease subject
thereto and to all matters disclosed thereby and by any exhibits attached
hereto. Tenant acknowledges that either Landlord nor Tenant's agent has made any
representation or warranty as to the suitability of the Premises for the conduct
of Tenant's business.
6.4 INSURANCE CANCELLATION. Notwithstanding the provisions of Article 6.1
hereinabove, no use shall be made or permitted to be made of the premises nor
acts done which will cause the cancellation of any insurance policy covering
said Premises or any building of which the Premises may be a part, and if
Tenant's use of the Premises causes an increase in said insurance rates Tenant
shall pay any such increase.
6.5 LANDLORD'S RULES AND REGULATIONS. Tenant shall faithfully observe and
comply with the rules and regulations that Landlord shall from time
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to time promulgate. A copy of said rules and regulations is attached hereto.
Landlord reserves the right from time to time to make all reasonable
modifications to said rules and regulations. The additions and modifications to
those rules and regulations shall be binding upon Tenant upon delivery of a copy
of them to Tenant. Landlord shall not be responsible to Tenant for the
nonperformance of any of said rules and regulations by any other tenants or
occupants.
7. MAINTENANCE, REPAIRS AND ALTERATIONS.
7.1 LANDLORD'S OBLIGATIONS. Subject to the provisions of Article 9, and
except for damage caused by any negligent or international act or omission of
Tenant, Tenant's agents, employees, or invitees, Landlord, at Landlord's
expense, shall keep in good order, conditions and repair the foundation,
interior walls and the exterior roof of the Premises. Landlord shall not,
however be obligated to paint such exterior, nor shall Landlord be required to
maintain the interior surface or exterior walls, windows, doors or plate glass.
Landlord shall have no obligation to make repairs under this Article 7.1 until
reasonable time after receipt or written notice of the need for such repairs.
Tenant expressly wavies the benefits of any statute now or hereafter in effect
which would otherwise afford Tenant the right to make repairs at Landlord's
expense.
7.2 TENANT'S OBLIGATIONS. Subject to the provisions of Article 7.1 and
Article 9, Tenant, at Tenant's expense, shall keep in good order, condition and
repair the Premises and every part thereof (regardless of whether the damaged
portion of the Premises or the means of repairing the same are accessible to
Tenant, including without limiting the generality of the foregoing, all
plumbing, heating, air conditioning, ventilating, electrical and lighting
facilities and equipment within the Premises, fixtures, interior walls,
ceilings, windows, doors, plate glass, and skylights, located within the
Premises.
7.3 SURRENDER. On the last day of the term hereof, or on any sooner
termination, Tenant shall surrender the Premises to Landlord in good condition,
broom clean, ordinary wear and tear excepted. Tenant shall repair any damage to
the Premises occasioned by its use thereof, or by the removal of Tenant's trade
fixtures, furnishings and equipment pursuant to Article 7.5, which repair shall
include the patching and filling of holes and repair of structural damage.
7.4 LANDLORD'S RIGHTS. If Tenant fails to perform Tenant's obligations
under this Article 7, Landlord may at its option but shall not be required to
enter upon the Premises, after ten (10) days prior written notice to Tenant, and
put the same in good order, condition and repair, and the cost thereof together
with interest thereon at the rate of ten (10%) percent per annum shall become
due and payable as additional rental to Landlord together with Tenant's next
rental installment.
7.5 ALTERATIONS AND ADDITIONS.
(a) Tenant shall not, without Landlord's prior written consent, make
any alterations, improvements, or additions, on or about the Premises, except
for non structural alterations not exceeding $1,000 in cost. As a condition to
giving such consent, Landlord may require that Tenant remove any such
alterations, improvements, additions or utility installations at the expiration
of the term, and to restore the Premises to their prior condition.
(b) Before commencing any work relating to alterations, additions and
improvements affecting the Premises, Tenant shall notify Landlord in writing of
the expected date of commencement thereof. Landlord shall then have the right at
any time and from time to time to post and maintain on the Premises such notices
as Landlord reasonably deems necessary to protect the Premises and Landlord from
mechanics' liens, materialmen's liens or any other liens. In any event, Tenant
shall pay, when due, all claims for labor or materials furnished to or for
Tenant at or for use in the Premises. Tenant shall not permit any mechanics or
materialmen's liens to be levied against the Premises for any labor or material
furnished to Tenant or claimed to have been furnished to Tenant or to Tenant's
agents or contractors in connection with work of any character performed or
claimed to have been performed on the Premises by or at the direction of Tenant.
(c) Unless Landlord requires the approval, as set forth in Article
7.5(a), all alterations, improvements or additions which may be made on the
Premises, shall become the property of Landlord and remain upon and be
surrendered with the Premises at the expiration of the term. Notwithstanding the
provisions of this Article 7.5(c), Tenants machinery, equipment and trade
fixtures, other than that which is alloted to the Premises so that it cannot be
removed without material damage to the Premises, shall remain the property of
Tenant and may be removed by Tenant subject to the provisions of Article 7.3.
8. INSURANCE; INDEMNITY.
8.1 INSURING PARTY. As used in this Article 8, the term "insuring party"
shall mean the party who has the obligation to obtain the insurance required
hereunder. The insuring party in this case shall be designated in Article 20.
Whether the insuring party is the Landlord or the Tenant, Tenant shall, as
additional rent for the Premises, pay the cost of all insurance required
hereunder. If Landlord is the insuring party Tenant shall, within ten (10) days
following demand by Landlord, reimburse Landlord for the cost of the insurance
so obtained.
8.2 LIABILITY INSURANCE. The Tenant shall obtain and keep in force during
the term of this Lease a policy of comprehensive public liability insurance
insuring the Landlord and Tenant against any liability arising out of the
ownership, use occupancy or maintenance of the Premises and all areas
appurtenant thereto. Such insurance shall be in an amount of not less than
$300,000 for injury to or death of one person in any one accident or occurence
and in amount of not less than $500,000 for injury to or death of more than one
person in any one accident or occurence. Such insurance shall further insure
Landlord and Tenant against liability for property damage of at least $50,000.
The limits of said insurance shall have a Landlord's Protective Liability
endorsement attached thereto. If the tenant shall fail to procure and maintain
said insurance the Landlord may, but shall not be required to procure and
maintain the same, but at the expense of Tenant.
8.3 PROPERTY INSURANCE. The insuring party shall obtain and keep in force
during the term of this Lease a policy or policies of insurance covering loss or
damage to the Premises, in the amount of the full replacement value thereof,
providing protection against all perils included within the classification of
fire, extended coverage, vandalism, malicious mischief, special extended perils
(all risk) and spinkler leakage. Said insurance shall provide for payment for
loss thereunder to Landlord or to the holder of a first mortgage or deed of
trust the Premises. If the insuring party shall fail to procure and maintain
said insurance the other party may, but shall not be required to, procure and
maintain the same, but at the expense of Tenant.
8.4 INSURANCE POLICIES. Insurance required hereunder shall be in companies
rated A+ AAA or better in "Best's Insurance Guide". The insuring party shall
deliver prior to possession to the other party copies of policies of such
insurance or certificates evidencing the existence and amounts of such insurance
with loss payable clauses satisfactory to Landlord. No such policy shall be
cancellable or subject to reduction of coverage or other modification except
after ten (10) days' prior written notice to Landlord. If Tenant is the insuring
party, Tenant shall, within ten (10) days prior to the expiration of such
policies, furnish Landlord with renewals thereof, or Landlord may order such
insurance and charge the cost thereof to Tenant, which amount shall be payable
by Tenant upon demand. Tenant shall not do or permit to be done anything which
shall invalidate the insurance policies referred to in Article 8.3. Tenant shall
forthwith, upon Landlord's demand, reimburse Landlord for any additional
premiums attributable to any act or omission or operation of Tenant causing such
increase in the cost of insurance. If Landlord is the insuring party, and if the
insurance policies maintained hereunder cover other improvements in addition to
the Premises. Landlord shall deliver to Tenant a written statement setting forth
the amount of any such cost increase and showing in reasonable detail the manner
in which it has been computed.
8.5 WAIVER OF SUBROGATION. Tenant and Landlord each waives any and all
rights of recovery against the other, or against the officers, employees, agents
and representatives of the other, for loss or damage to such waiving party or
its property or the property of others under its control, where such loss or
damage is insured against under any insurance policy in force at the time of
such loss or damage. Tenant and Landlord shall upon obtaining the policies of
insurance required hereunder, give notice to the insurance carriers that the
foregoing mutual waiver of subrogation is contained in this Lease.
8.6 HOLD HARMLESS. Tenant shall indemnify, defend and hold Landlord
harmless from any and all claims arising from Tenant's use of the Premises or
from the conduct of its business or from any activity, worth or things which may
be permitted or suffered by Tenant in or about the Premises and shall further
indemnity, defend and hold Landlord harmless from and against any and all claims
arising from any breach or default in the performance of any obligation on
Tenant's part to be performed under the provision of this Lease or arising from
any negligence of Tenant or any of its agents, contractor, employees or invitees
and from any and all costs attorneys' fees, expenses and liabilities incurred in
the defense of any such claim or any action or proceeding brought thereon.
Tenant hereby assumes all risk of damage to property or injury to persons in or
about the Premises from any cause, and Tenant hereby waivers all claims in
respect thereof against Landlord, excepting where said damage arises out of
negligence of Landlord.
8.7 EXEMPTION OF LANDLORD FROM LIABILITY. Tenant hereby agrees that
Landlord shall not be liable for injury to Tenant's business or any loss of
income therefrom on for damage to the goods, wores, merchandise or other
property of Tenant, Tenant's employees, invitees, customers, or any other person
in or about the Premises, nor, unless through its negligence, shall Landlord be
liable for injury to the person of Tenant, Tenant's employees, agents or
contractors and invitees, whether such damage or injury is caused by or results
from fire, steam, electricity, gas, water or rain or from breakage, leakage,
obstruction or other defects of pipes, spinklers, wires appliances, plumbing,
air conditioning or lighting fixtures, or from any other cause whether the said
damage or injury results from conditions arising upon the Premises or upon other
portions of the building of which the Premises are a part, or from other sources
or places, and regardless of whether the cause of such damage or injury or the
means of repairing the same is inaccessible to
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Landlord or Tenant, Landlord shall not be liable for any damages arising from
any act of neglect of any other tenant, if any, of the building in which the
Premises are located.
9. DAMAGE ON DESTRUCTION.
9.1 PARTIAL DAMAGE - INSURED. Subject to the provisions of Article 9.1, if
the Premises are damaged and such damage was caused by a casualty covered under
an insurance policy required to be maintained pursuant to Article 8.3. Landlord
shall at Landlord's expense repair such damage as soon as reasonably possible
and this Lease shall continue in full force and effect. Notwithstanding the
above, if the Tenant is the insuring party, and if the insurance proceeds
received by Landlord are not sufficient to effect such repair. Landlord shall
give notice to Tenant of the amount required in addition to the insurance
proceeds to affect such repair. Tenant may, at Tenant's option, contribute the
required amount, but upon failure to do so within thirty (30) days following
such notice. Landlord's sole remedy shall be, at Landlord's option and with no
liability to Tenant, to cancel and terminate this Lease. If Tenant shall
contribute such amount to Landlord within said thirty (30) days period, Landlord
shall make such repairs as soon as reasonably possible and this Lease shall
continue in full force and effect. Tenant shall in no event have any right to
reimbursement for nay such amount so contributed.
9.2 DAMAGE - UNINSURED. In the event the Premises may be damaged or
destroyed by a casualty which is not covered by fire and extended coverage
insurance carried by Landlord, then Landlord shall restore same, provided that
if the damage or destruction is to an extent greater than ten (10%) per cent of
the then replacement cost of improvements on the Premises (exclusive of Tenant's
trade fixtures and equipment and exclusive of foundations) then Landlord may
elect not to restore and to terminate this Lease. Landlord must give Tenant
written notice of its election not to restore within thirty (30) days from the
date of damage and if, not given, Landlord shall be deemed to have elected to
restore and in such event shall repair any damage as soon as reasonably
possible. In the event Landlord elects to give such notice of Landlord's
intention to cancel and terminate the Lease, Tenant shall have the right within
ten (10) days after the receipt of such notice to give written notice to
Landlord of Tenant's intention to repair such damage of Tenant's expense,
without reimbursement from Landlord, in which event this Lease shall continue in
full force and effect and Tenant shall proceed to make such repair as soon as
reasonably possible. If Tenant does not give such notice within such ten (10)
day period, this Lease shall be cancelled and terminated as of the date of the
occurrence of such damage.
9.3 TOTAL DESTRUCTION. If at any time during the term hereof the Premises
are totally destroyed from any cause whether or not covered by the insurance
required to be maintained by Landlord pursuant to Article 8.3 (including any
total destruction required by any authorized public authority) this Lease shall
automatically terminate as of the date of such total destruction.
9.4 DAMAGE NEAR END OF TERM. If the Premises are partially destroyed or
damaged during the last six (6) months of the term of this Lease. Landlord may,
at Landlord's option, cancel and terminate this Lease as of the date of
occurrence of such damage by giving written notice to Tenant of Landlord's
election to do so within thirty (30) days after the date of occurrence of such
damage.
9.5 ABATEMENT OF RENT.
(a) If the Premises are partially destroyed or damaged and Landlord or
Tenant repairs or restores them pursuant to the provisions of this Article 9,
the rent payable hereunder for the period during which such damage, repair or
restoration continues shall be abated in proportion to the degree to which
Tenant's reasonable use of the Premises is impaired. Except for abatement of
rent, if any, Tenant shall have no claim against Landlord for any damage
suffered by reason of any such damage, destruction, repair or restoration.
(b) If Landlord shall be obligated to repair or restore the Premises
under the provisions of this Article 9 and shall not commence such repair or
restoration within ninety (90) days after such obligations shall accrue. Tenant
may at Tenant's option cancel and terminate this Lease by giving Landlord
written notice of Tenant's election to do so at any time prior to the
commencement of such repair or restoration. In such event this Lease shall
terminate as of the date of such notice. Any abatement in rent shall be computed
as provided in Article 9.5(a).
10. REAL PROPERTY TAXES.
10.1 PAYMENT OF TAXES. Tenant shall pay all real property taxes applicable
to the Premises during the term of this Lease. All such payments shall be made
at least ten (10) days prior to the delinquency date of such payment. Tenant
shall promptly furnish Landlord with satisfactory evidence that such taxes have
been paid. If any such taxes paid by Tenant shall cover any period of the time
prior to or after the expiration of the term hereof. Tenant's share of such
taxes shall be equitably prorated to cover only the period of time within the
tax fiscal year during which this Lease shall be in effect, and Landlord shall
reimburse Tenant to the extent required. If Tenant shall fail to pay any such
taxes, Landlord shall have the right to pay the same, in which case Tenant shall
repay such amount to Landlord with Tenant's next rent installment together with
interest at the rate of ten (10%) percent per annum.
10.2 DEFINITION OF "REAL PROPERTY TAXES." As used herein, the term "real
property tax" shall include any form of assessment, license fee, rent, tax,
levy, penalty, or tax (other than inheritance or estate taxes), imposed by any
authority having the direct or indirect power to tax, including any city,
county, state or federal government, or any school, agricultural, lighting,
drainage or other improvement distinct thereof, as against any legal or
equitable interest of Landlord in the Premises or in the real property of which
the Premises are a part, as against Landlord's right to rent or other income
therefrom, or as against Landlord's business of leasing the Premises, and,
Tenant shall pay and all charges and fees which may be imposed by the EPA or
other similar government regulations or authorities.
10.3 JOINT ASSESSMENT. If the Premises are not separately assessed,
Tenant's liability shall be an equitable proportion of the real property taxes
for all of the land and improvements included within the tax parcel assessed,
such proportion to be determined by Landlord from the respective valuations
assigned in the assessor's work sheets or such other information as may be
reasonably available. Landlord's reasonable determination thereof, in good
faith, shall be conclusive.
10.4 PERSONAL PROPERTY TAXES.
(a) Tenant shall pay prior to delinquency all taxes assessed against
and levied upon leasehold improvements, fixtures, furnishings, equipment and all
other personal property of Tenant contained in the Premises or elsewhere. Tenant
shall cause said leasehold improvements, trade fixtures, furnishings, equipment
and all other personal property to be assessed and billed separately from the
real property of Landlord.
(b) If any of Tenant's said personal property shall be assessed with
Landlord's real property, Tenant shall pay Landlord the taxes attributable to
Tenant within ten (10) days after receipt of a written statement setting forth
the taxes applicable to Tenant's property.
10.5 NOTWITHSTANDING THE PROVISIONS OF ARTICLE 10 HEREINABOVE. Tenant shall
pay any increase in "real property taxes" resulting from any and all improvement
of any kind whatsoever placed on or in the Premises for the benefit of or at the
request of Tenant regardless of whether said improvements were installed or
constructed either by Landlord or Tenant, except those items included with the
original Premises.
11. COMMON AREAS. When, in fact, there are Common Areas, then the following
shall apply:
11.1 DEFINITIONS. The phrase "Common Areas" means all areas and facilities
outside the Premises that are provided and designated for general use and
convenience of Tenant and other tenants and their respective officers, agents
and employees, customers, and invitees. Common Areas include (but are not
limited to) pedestrian sidewalks, landscaped areas, roadways, parking areas and
railroad tracks, if any. Landlord reserves the right from time to time to make
changes in the shape, size, location, number, and extent of the Land and
improvements constituting the Common Areas. Landlord may designate from time to
time additional parcels of land for use as a part thereof; and any additional
land so designated by Landlord for such use shall be included until such
designation is revoked by Landlord.
11.2 MAINTENANCE. During the term of this Lease, Landlord shall operate,
manage, and maintain the Common Areas so that they are clean and free from
accumulations of debris, filth, rubbish and garbage. The manner in which such
Common Areas shall be so maintained, and the expenditure for such maintenance,
shall be at the sole discretion of Landlord, and the use of the Common Areas
shall be subject to such reasonable regulations and changes therein as Landlord
shall make from time to time, including (but not by way of limitations) the
right to close from time to time, if necessary, all or any portion of the Common
Areas to such extent or may be legally sufficient, in the opinion of Landlord's
counsel, to prevent a dedication thereof or the accrual of rights of any person
or of the public therein, or to close temporarily all or any portion of such
Common Areas for such purposes.
11.3 TENANT'S RIGHTS AND OBLIGATIONS. Landlord hereby grants to Tenant,
during the term of this Lease, the license to use, for the benefit of Tenant and
its officers, agents, employees, customers, and invitees, in common with the
others entitled to such use, the Common Areas as they from time to time exist,
subject to the rights, powers, and privileges herein reserved to Landlord.
Storage, either permanent or temporary, of any materials, supplies or equipment
in the Common Areas is strictly prohibited. Should Tenant violate this provision
of the Lease, than in such event, Landlord may, at his option either terminate
this Lease or, without notice to Tenant, remove said materials, supplies or
equipment from the Common Areas and place such items in storage, the cost
thereof to be reimbursed by Tenant within (10) days from receipt of a statement
submitted by Landlord. All subsequent costs in connection with the storage of
said items shall be paid to the Landlord by Tenant as accrued. Failure of Tenant
to pay these charges within ten (10) days from receipt of a statement shall
constitute a breach of this Lease. Tenant and its officers, agents, employees,
customers and invitees shall park their motor vehicles only in areas designated
by Landlord for that purpose from time to time. Within five (5) days after
request from Landlord, Tenant shall furnish to Landlord a list of the license
numbers assigned to its motor vehicles and those of its officers, agents, and
employees. Tenant shall not at any time park or permit the parking of motor
vehicles, belonging to it or to others, so as to interfere with the pedestrian
sidewalk, roadways and loading areas, or in any portion of the parking areas not
designed by Landlord for such use by Tenant. Tenant agrees that receiving and
shipping of goods and merchandise and all removal of refuse shall be made only
by way of the loading areas constituting part of the Premises. Tenant shall
repair, at its cost, all deteriorations or damages to the Common Areas,
occasioned by its lack of ordinary care.
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11.4 CONSTRUCTION. Landlord, while engaged in constructing improvements or
making repairs or alterations in or about the Premises or in their vicinity,
shall have the right to make reasonable use of the Common Areas.
12. UTILITIES. Tenant shall pay for all water, gas, heat, light, power,
telephone and other utilities and services supplied to the Premises, together
with any taxes thereon. If any such services are not separately metered to
Tenant, Tenant shall pay a reasonable proportion to be determined by Landlord of
all charges jointly metered with other premises
13. ASSIGNMENT AND SUBLETTING.
13.1 LANDLORD'S CONSENT REQUIRED. Tenant shall not voluntarily or by
operation of law assign, transfer, mortgage, sublet, or otherwise transfer or
encumber all of any part of Tenant's interest in this Lease or in the Premises
without Landlord's prior written consent, which Landlord shall not unreasonably
withhold. Any attempted assignment, transfer, mortgage, encumbrance, or
subletting without such consent shall be void and shall constitute a breach of
the Lease. Any transfer of Tenant's interest in this Lease or in the Premises
from Tenant by merger, consolidation, or liquidation or by any subsequent change
in the ownership of thirty (30%) percent or more of the capital stock of Tenant
shall be deemed a prohibited assignment within the meaning of this Article 13.
13.2 NO RELEASE OF TENANT. Regardless of Landlord's consent, no subletting
or assignment shall release Tenant of Tenant's obligation to pay the rent and to
perform all other obligations to be performed by Tenant hereunder for the term
of this Lease. The acceptance of rent by Landlord from any other person shall
not be deemed to be a waiver by Landlord of any provision hereof. Consent to one
assignment or subletting shall not be deemed consent to any subsequent
assignment or subletting.
13.3 ASSIGNMENT FEE. In the event that Landlord shall consent to a sublease
or assignment under Article 13.1, Tenant shall pay Landlord reasonable fees not
to exceed One Hundred and no/100th ($100,00) Dollars incurred in connection with
giving such consent.
14. DEFAULTS; REMEDIES.
14.1 DEFAULTS. The occurrence of any one or more of the following events
shall constitute a default and breach of this Lease by Tenant
(a) The vacating or abandonment of the Premises by Tenant.
(b) The failure by Tenant to make any payment of rent or any other
payment required to be made by Tenant hereunder, as and when due, where such
failure shall continue for a period of three (3) days after written notice
thereof from Landlord to Tenant
(c) The failure by Tenant to observe or perform any of the covenants,
conditions or provisions of this Lease to be observed or performed by Tenant,
other than described in Paragraph (b) above, where such failure shall continue
for a period of thirty (30) days after written notice thereof from Landlord to
Tenant; provided, however, that if the nature of Tenant's default is such that
more than thirty (30) days are reasonably required for its cure, then Tenant
shall not be deemed to be in default if Tenant commenced such cure within said
thirty (30) day period and thereafter diligently prosecutes such cure to
completion.
(d) (i) The making by Tenant of any general assignment, or general
arrangement for the benefit of creditors; (ii) the filing by or against Tenant
of a petition to have Tenant adjudged a bankrupt or a petition for
reorganization or arrangement under any law relating to bankruptcy (unless, in
the case of a petition filed against Tenant, the same is dismissed within sixty
(60) days); (iii) the appointment of a trustee or receiver to take possession of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where possession is not restored to Tenant within thirty
(30) days; or (iv) the attachment, execution or other judicial seizure of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where such seizure is not discharged within thirty (30)
days.
14.2 REMEDIES IN DEFAULT. In the event of any such default or breach by
Tenant, Landlord may at any time thereafter, with or without notice or demand
and without limiting Landlord in the exercise of any right or remedy which
Landlord may have by reason of such default or breach.
(a) Terminate Tenant's right to possession of the Premises by any
lawful means, in which case this Lease shall terminate and Tenant shall
immediately surrender possession of the Premises to Landlord. In such event
Landlord shall be entitled to recover from Tenant all damages incurred by
Landlord by reason of Tenant's default including, but not limited to, the cost
of recovering possession of the Premises; expenses of reletting, including
necessary renovation and alteration of the Premises, reasonable attorney's fees,
and any real estate commission actually paid; the worth at the time of award by
the court having jurisdiction thereof of the amount by which the unpaid rent for
the balance of the term after the time of such award exceeds the amount of such
rental loss for the same period that Tenant proves could be reasonably avoided;
and that portion of the leasing commission paid by Landlord applicable to the
unexpired term of this Lease. Unpaid installments of rent or other sums shall
bear interest from the date due at the rate of ten (10%) percent per annum. In
the event Tenant shall have abandoned the Premises, Landlord shall have the
option of (i) retaking possession of the Premises and recovering from Tenant the
amount specified in this Article 14.2(a), or (ii) proceeding under Article
14.2(b).
(b) Maintain Tenant's right to possession, in which case this Lease
shall continue in effect whether or not Tenant shall have abandoned the
Premises, in such event, Landlord shall be entitled to enforce all of Landlord's
rights and remedies under this Lease, including the right to recover the rent as
it becomes due hereunder.
(c) Pursue any other remedy now or hereafter available to Landlord
under the laws or judicial decisions of the state in which the Premises are
located.
14.3 DEFAULT BY LANDLORD. Landlord shall not be in default unless Landlord
fails to perform obligations required of Landlord within a reasonable time, but
in no event later than thirty (30) days after written notice by Tenant to
Landlord and to the holder of any first mortgage or deed of trust covering the
Premises whose name and address shall have theretofore been furnished to Tenant
in writing, specifying wherein Landlord has failed to perform such obligation;
provided, however, that if the nature of Landlord's obligation is such that more
than thirty (30) days are required for performance then Landlord shall not be in
default if Landlord commences performance within such thirty (30) day period and
thereafter diligently prosecutes the same to completion.
14.4 LATE CHARGES. Tenant hereby acknowledges that late payment by Tenant
to Landlord of rent and other sums due hereunder will cause Landlord to incur
costs not contemplated by this Lease, the exact amount of which will be
extremely difficult 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 trust deed covering the Premises.
Accordingly, if any installment of rent or any other sum due from Tenant shall
not be received by Landlord or Landlord's designee within ten (10) days after
written notice that said amount is past due, then Tenant shall pay to Landlord a
late charge equal to ten (10%) percent of such overdue amount. The parties
hereby agree that such late charge represents a fair and reasonable estimate of
the cost Landlord will incur by reason of late payment by Tenant. Acceptance of
such late charge by Landlord shall in no event constitute a waiver of Tenant's
default with respect to such overdue amount, nor prevent Landlord from
exercising any of the other rights and remedies granted hereunder.
15. CONDEMNATION. If the Premises or any portion thereof are taken under the
power of eminent domain, or sold by Landlord under the threat of the exercise of
said power (all of which is herein referred to as "condemnation"), this Lease
shall terminate as to the part so taken as of the date the condemning authority
takes title of possession, whichever occurs first, if more than twenty-five
(25%) percent of the floor area of any buildings on the Premises, or more than
twenty-five (25%) percent of the land area of the Premises not covered with
buildings, is taken by condemnation, either Landlord or Tenant may terminate
this Lease as of the date the condemning authority takes possession by notice in
writing of such election within twenty (20) days after Landlord shall have
notified Tenant of the taking or, in the absence of such notice, then within
twenty (20) days after the condemning authority shall have taken possession.
If this Lease is not terminated by either Landlord or Tenant then it shall
remain in full force and effect as to the portion of the Premises remaining,
provided the rental shall be reduced in proportion to the floor area of the
buildings taken within the Premises as bears to the total floor area of all
buildings located on the Premises. In the event this Lease is not so terminated
then Landlord agrees, at Landlord's sole cost, to as soon as reasonably possible
restore the Premises to a complete unit of like quality and character as existed
prior to the condemnation. All awards for the taking of any part of the Premises
or any payment made under the threat of the exercise of power of eminent domain
shall be the property of Landlord, whether made as compensation for diminution
of value of the leasehold or for the taking of the fee or as severance damages;
provided, however, that Tenant shall be entitled to any award for loss of or
damage to Tenant's trade fixtures and removable personal property.
16. GENERAL PROVISIONS.
16.1 OFFSET STATEMENT.
(a) Tenant shall at any time upon not less than ten (10) days' prior
written notice from Landlord execute, acknowledge and deliver to Landlord a
statement in writing (i) certifying that this Lease is unmodified and in full
force and effect for, if modified, stating the nature of such modification and
certifying that this Lease, as so modified, is in full force and effect and the
date to which the rent, security deposit, and other charges are paid in advance,
if any, and (ii) acknowledging that there are not, to Tenant's knowledge, any
uncured defaults on the part of Landlord hereunder, or specifying such defaults,
if any, which are claimed. Any such statement may be conclusively relied upon by
any prospective purchaser or encumbrances of the premises.
(b) Tenant's failure to deliver such statement within such time shall
be conclusive upon Tenant (i) that this Lease is in full force and effect,
without modification except as may be represented by Landlord, (ii) that there
are no uncured defaults in Landlord's performance and (iii) that
(PAGE 4 - MODIFIED NET)
not more than one (1) month's rent has been paid in advance.
(c) If Landlord desires to finance or refinance the Premises, or any
part thereof, Tenant hereby agrees to deliver to any lender designated by
Landlord such financial statements of Tenant as may be reasonably required by
such lender. Such statements shall include the past three (3) years' financial
statements of Tenant. All such financial statements shall be received by
Landlord in confidence and shall be used only for the purposes herein set forth.
16.2 LANDLORD'S INTERESTS. The term "Landlord" as used herein shall mean
only the owner or owners at the time in question of the title or a tenant's
interest in a ground lease of the Premises. In the event of any transfer of such
title or interest, Landlord herein named (and in case of any subsequent
transfers the then grantor) shall be relieved from and after the date of such
transfer of all liability as respects Landlord's obligations thereafter to be
performed, provided that any funds in the hands of Landlord or the then grantor
at the time of such transfer. In which Tenant has an interest, shall be
delivered to the grantee. The obligations contained in this Lease to be
performed by Landlord shall, subject as aforesaid, be binding on Landlord's
successors and assigns, only during their respective periods of ownership.
16.3 SEVERABILITY. The invalidity of any provision of this Lease, as
determined by a court of competent jurisdiction, shall in no way affect the
validity of any other provision hereof.
16.4 INTEREST ON PAST-DUE OBLIGATIONS. Except as expressly herein provided,
any amount due to Landlord not paid when due shall bear interest at ten (10%)
percent per annum from the date due. Payment of such interest shall not excuse
or cure any default by Tenant under this Lease.
16.5 TIME OF ESSENCE. Time is of the essence.
16.6 CAPTIONS. Article and paragraph captions are not a part hereof.
16.7 INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS. This Lease contains all
agreements of the parties with respect to any master mentioned herein. No prior
agreement or understanding pertaining to any such matter shall be effective.
This Lease may be modified in writing only, signed by the parties in interest at
the time of the modification.
16.8 WAIVERS. No waiver by Landlord of any provision hereof shall be deemed
a waiver of any other provision hereof or of any subsequent breach by Tenant of
the same or any other provision. Landlord's consent to or approval of any act
shall not be deemed to render unnecessary the obtaining of Landlord's consent to
or approval of any subsequent act by Tenant. The acceptance of rent hereunder by
Landlord shall not be a waiver of any preceding breach by Tenant of any
provision hereof, other than the failure of Tenant to pay the particular rent so
accepted, regardless of Landlord's knowledge of such preceding breach at the
time of acceptance of such rent.
16.9 RECORDING. Tenant shall not record this Lease. Any such recordation
shall be a breach under this Lease.
16.10 HOLDING OVER. If Tenant remains in possession of the Premises or any
part thereof after the expiration of the term hereof with the express written
content of Landlord, such occupancy shall be a tenancy from month to month at a
rental in the amount of the last monthly rental plus all other charges payable
hereunder, and upon the terms hereof applicable to month-to-month tenancy.
16.11 CUMULATIVE REMEDIES. No remedy or election hereunder shall be deemed
exclusive, but shall wherever possible, be cumulative with all other remedies at
law or in equity.
16.12 COVENANTS AND CONDITIONS. Each provision of this Lease performable by
Tenant shall be deemed both a covenant and a condition.
16.13 BINDING EFFECT; CHOICE OF LAW. Subject to any provisions hereof
restricting assignment or subletting by Tenant and subject to the provisions of
Article 16.2, this Lease shall bind the parties, their personal representatives,
successors and assigns. This Lease shall be governed by the laws of the state
where the Premises are located.
16.14 SUBORDINATION.
(a) That Lease, at Landlord's option, shall be subordinate to any
ground lease, mortgage, deed of trust, or any other hypothecation for security
now or hereafter placed upon the real property of which the Premises are a part
and to any and all advances made on the security thereof and to all renewals,
modifications, consolidations, replacements and extensions thereof.
Notwithstanding such subordination, Tenant's right to quiet possession of the
Premises shall not be disturbed if Tenant is not in default and so long as
Tenant shall pay the rent and observe and perform all of the provisions of this
Lease, unless this Lease is otherwise terminated pursuant to its terms. If any
mortgages, trustee or ground lesse shall elect to have this Lease prior to the
lien of its mortgage, deed of trust or ground lease, and shall give written
notice thereof to Tenant, this Lease shall be deemed prior to such mortgage,
deed of trust, or ground lease, whether this Lease is dated prior or subsequent
to the date of said mortgage, deed of trust or ground lease or the date of
recording thereof.
(b) Tenant agrees to execute any documents required to effectuate such
subordination or to make this Lease prior to the lien of any mortgage, deed of
trust or ground lease, as the case may be, and failing to do so within ten (10)
days after written demand, does hereby make, constitute and irrevocably appoint
Landlord as Tenant's attorney in fact and in Tenant's name, place and stead, to
do so.
16.15 ATTORNEY'S FEES. If either party named herein brings an action to
enforce the terms hereof or declare rights hereunder, the prevailing party in
any such action, on trial or appeal, shall be entitled to his reasonable
attorney's fees to be paid by the losing party as fixed by the court.
16.16 LANDLORD'S ACCESS. Landlord and Landlord's agents shall have the
right to enter the Premises at reasonable times for the purpose of inspecting
the same, showing the same to prospective purchasers, or tenders, and making
such alterations, repairs, improvements or additions to the Premises or to the
building of which they are a part as Landlord may deem necessary or desirable.
Landlord may at any time place on or about the Premises any ordinary "For Sale"
signs and Landlord may at any time during the last one hundred twenty (120) days
of the term hereof place on or about the Premises any ordinary "For Sale or
Lease" signs, all without rebate of rent or liability to Tenant.
16.17 AUCTIONS. Tenant shall not place any auction sign upon the Premises
or conduct any auction thereon without Landlord's prior written consent.
16.18 MERGER. The voluntary or other surrender of this Lease by Tenant, or
a mutual cancellation thereof, shall not work a merger, and shall, at the option
of Landlord, terminate all or any existing subtenancies or may, at the option of
Landlord, operate as an assignment to Landlord of any or all of such
subtenancies.
16.19 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.
16.20 LANDLORD'S LIABILITY. If Landlord is a limited partnership, the
liability of the partners of the Landlord pursuant to this Lease shall be
limited to the assets of the partnership; and Tenant, its successors and assigns
hereby waive all rights to proceed against any of the parteners, or the
officers, shareholders, or directors of any corporate partner of Landlord except
to the extent of their interest in the partnership. The term "Landlord", as used
in this Article, shall mean only the owner or owners at the time in question of
the fee title or its interest in a ground lease of the Premises, and in the
event of any transfer of such title or interest. Landlord herein named land in
case of any subsequent transfers the then grantor shall be relieved from and
after the date of such transfer of all liability as respects Landlord's
obligations thereafter to be performed, provided that any funds in this hands of
Landlord or the then grantor at the time of such transfer, in which Tenant has
an interest, shall be delivered to the grantee. The obligations contained in
this Lease to be performed by Landlord shall, subject as aforesaid, be binding
on Landlord's successors and assigns, only during their respective periods of
ownership.
17. PERFORMANCE BOND. At any time Tenant either desires to or is required to
make any repairs, alterations, additions, improvements or utility installation
thereon pursuant to Articles 7.5 or 9.2 herein, or otherwise, Landlord may at
his sole option require Tenant, at Tenant's sole cost and expense, to obtain and
provide to Landlord a lien and completion bond in an amount equal to one and
one-half (1 1/2) times the estimated cost of such improvements, to insure
Landlord against liability for mechanics' and materialmen's liens and to insure
completion of the work.
(PAGE 5 - MODIFIED NET)
18. BROKERS. The parties hereto acknowledge that Xxxxxx, Xxxxxxx & Xxxxxx, Inc.
were the real estate brokers that represented the parties herein, and that no
other commissions are due to any brokers whatsoever, other than the above named
brokers.
19. NOTICES. Whenever under this Lease provision is made for any demand, notice
or declaration of any kind, or where it is deemed desirable or necessary by
either party to give or serve any such notice, demand or declaration to the
other party, it shall be in writing and served either personally or send by
United States mail, postage prepaid, addressed at the addresses set forth
hereinbelow.
To Landlord at 802 Dexter Associates, 000 Xxxxxx Xx., Xxxxxxx, XX 00000
To Tenant at X.X. Xxxxxxxxx, Criton Technologies
00000 X.X. 0xx, Xxxxxxxx, Xx 00000
Copy to: Xxxxx and Xxxxx, Bank of California Center,
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxx
20. INSURING PARTY. The insuring party under this Lease shall be the Landlord
See Exhibit "A", Addendum to Lease, attached hereto and by this reference is
made a part hereof.
The parties hereto have executed this Lease at the place and on the dates
specified immediately adjacent to their respective signatures.
Dexter Avenue Associates
Executed at
------------------------- ----------------------------------------
on By /s/ Xxxxxx Xxxxx 7/18/84
---------------------------------- -----------------------------
Xxxxxx Xxxxx, Its Managing Partner
By
-------------------------------------
"LANDLORD"
Korry Electronics Company, A Division of
Executed at Criton Technologies
-------------------------
on By /s/ Xxx Xxxxx 7/17/4
---------------------------------- ------------------------------
Xxx Xxxxx, President
By
-------------------------------------
"TENANT"
If this Lease has been filled in it has been prepared for submission to
your attorney for his approval. No representation or recommendation is made by
the real estate broker or its agents or employees as to the legal sufficiency,
legal effect, or tax consequences of this Lease or the transaction relating
thereto.
(PAGE 6 - MODIFIED NET)
FIRST AMENDMENT TO LEASE
THIS AGREEMENT, entered into as of this 10th day of May, 1985, between
DEXTER AVENUE ASSOCIATES, a Washington general partnership ("Landlord"), and
KORRY ELECTRONICS CO., a Division of Criton Technologies ("Tenant"),
RECITALS
A. Landlord and Tenant are parties to a Lease dated July 17, 1984 with
respect to certain premises (the "Existing 901 Premises") located at 000 Xxxxxx
Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxx (the "901 Lease"), as described more
particularly in the 901 Lease.
B. The parties wish to expand the area of the Existing 901 Premises
and extend and modify the Lease in certain other respects.
NOW, THEREFORE, the parties covenant and agree as follows:
1. The 901 Lease is modified as follows:
1.1 The Existing 901 Premises are expanded to include the
remainder of the building in which the Existing 901 Premises are located, other
than the facility with the street address of 000 Xxxxxx Xxxxxx Xxxxx. Thus added
to the Existing 901 Premises are a facility with the street address of 000
Xxxxxx Xxxxxx Xxxxx (the "925 Premises") and the shed which lies to the rear of
the 925 Premises (collectively, the "Expanded 901 Premises"), effective as of
September 1, 1985.
1.2 The monthly rental shall be increased to Nineteen Thousand
Five Hundred Dollars ($19,500), effective as of September 1, 1985. The $19,500
rental rate is predicated on the assumption that the usable area of the 925
Premises, exclusive of shed, is ten thousand (10,000) square feet. The actual
area shall be measured in a manner acceptable to both parties, and the rent
shall be adjusted by fifty cents ($.50) per square foot, upward or downward, as
appropriate, to reflect any difference between the measured area and 10,000
square feet. In addition to Landlord's impovements specified herein, Landlord
shall give Tenant a $10,000 credit against the September 1, 1985 rent for
Tenant's renovation of the 925 Premises.
1.3 Landlord shall improve the 925 Premises in the same manner as
is specified in paragraph 4 of Exhibit A to the 901 Lease; shall finish and
paint the walls of the 925 Premises to match the Existing 901 Premises; shall
upgrade the electrical system of the 925 Premises in the manner described in
Exhibit 1 hereto; shall renovate the front of the 925 Premises to match the
existing 901 Premises; and shall install a heating, ventilating and air
conditioning system capable of satisfying the requirements of paragraph 5.11 of
Exhibit A to the 901 Lease, all by no later than August 31, 1985.
1.4 Landlord shall build additional men's and women's restrooms
on the first and second floors of the Extended 901 Premises and in the 925
Premises and shall completely renovation of the existing second floor men's and
women's restrooms in the Existing 901 Premises, all in accordance with Tenant's
specifications, by no later than August 31, 1985. All work performed by Landlord
within the Existing 901 Premises shall be performed in a manner which minimizes
its impact on Tenant's operations. The enclosure of the new bathrooms in the
Existing 901 Premises shall be accomplished on a weekend.
-1-
1.5 If the work specified in paragraphs 1.3 and 1.4 hereof is not
completed by September 1, 1985 and a permanent certificate of occupancy for the
Expanded 901 Premises has not been obtained by such date, then Tenant shall
receive a $l0,000-per-month credit against rent for each such month or partial
month period that completion of the work or the obtaining of the certificate is
delayed.
1.6 Landlord shall be required to provide Tenant with the
following parking on an exclusive basis without additional charge: forty (40)
spaces in the lot lying to the north of the Premises; fifty (50) spaces in the
two lots currently leased by Landlord on Aurora Avenue; and, if Landlord
acquires Lots 7 and 8, Block 21, which lie between the Aurora Avenue parking
lots, all parking spaces on such new site. These parking areas are depicted on
Exhibit 2 hereto. Landlord has indicated its intention to construct a facility,
including parking garage, on property which includes the lot to the north of the
Premises which presently affords Tenant forty (40) parking spaces. If Landlord
proceeds to develop the parking garage, it shall provide Tenant, during the
construction period, with forty (40) substitute parking spaces in close
proximity to the Premises and shall provide Tenant with one hundred twenty (120)
spaces in the parking garage once construction thereof has been completed.
2. The duration of the 901 Lease is modified as follows:
2.1 The basic Lease term is extended through August 31, 1990.
2.2 Paragraph 1 of Exhibit A to the 901 Lease is deleted in its
entirety. Tenant shall have an option to extend the term of the 901 Lease for up
to ten (10) consecutive two (2) year periods. To exercise a renewal option,
Tenant must give Landlord written notice thereof not less than one hundred
eighty (180) days prior to the end of the lease term then in effect. If Tenant
fails to exercise a renewal option with respect to the 901 Lease, all subsequent
renewal options with respect to the 901 Lease shall terminate.
2.3 If the first renewal option is exercised under the 901 Lease,
then the monthly rent for the first renewal period shall be the monthly rent
payable during the base period, increased by the percentage increase in the cost
of living, as indicated by the Consumer Price Index for All Urban Consumers -
All Items, for the Seattle Metropolitan Area, as published by the U.S.
Department of Labor's Bureau of Labor Statistics (the "Index") during the
immediately preceding twelve (12) month period, up to a maximum percentage
increase of two and one-half percent (2-1/2%). If subsequent renewal options are
exercised, then the monthly rent for each such renewal period shall be equal to
the monthly rent payable during the prior renewal period, increased by the
percentage increase in the Index during the prior two (2) year period, up to a
maximum percentage increase of two and one-half percent (2-1/2%) in any one year
and a maximum of five percent (5%) increase for the two-year period. (By way of
illustration only, if the monthly rent under the 901 Lease were $20,000 for the
September 1, 1990 - August 31, 1992 period and the Index increased four percent
(4%) during the September 1, 1990 - August 31, 1991 period and one percent (1%)
during the September 1, 1991 - August 31, 1992 period, then the monthly rent for
the September 1, 1992 - August 31, 1994 period would be increased by three and
one-half percent (3-1/2%), or Seven Hundred Dollars ($700.00), based on the
2-1/2% ceiling for the increase in the September 1, 1990 - August 31, 1991
period and the actual 1% increase during the following twelve-month period.) If
the Index is discontinued,
-2-
the parties shall substitute a comparable index of consumer prices.
3. This is made expressly contingent upon Tenant and 801 Dexter
Associates executing a first amendment to their lease extending the term thereof
in the same manner as is described in paragraph 2 above. If such amendment has
not been executed by May 15, 1985, then this Amendment shall terminate, unless
Tenant waives such contingency.
4. The parties shall promptly execute and record a memorandum of the
901 Lease.
5. The 901 Lease shall otherwise continue in full force and effect as
written.
6. If after the date hereof, Landlord intends to offer for lease any
other portion of the real property of which the Expanded 901 Premises forms a
part at the date of execution of this First Amendment to Lease, it shall not do
so without first offering such premises to Tenant. If Landlord and Tenant are
not able to reach agreement thereon within 60 days, the Landlord may proceed to
offer such premises to a third party. If Landlord receives a lease proposal from
a third party which Landlord wishes to accept, it shall not accept such without
first providing Tenant with a copy of such offer and offering to lease such
premises to Tenant on the same terms and conditions. If the Tenant does not
accept such proposal within five days of its receipt thereof, the Landlord shall
be free to enter into the lease with the third party on the offered terms and
conditions.
IN WITNESS WHEREOF, the parties have executed this First Amendment as
of the day and year first above written.
DEXTER AVENUE ASSOCIATES
("Landlord")
By /s/ Xxxxxx Xxxxx
-------------------------------------
Xxxxxx Xxxxx,
Its Managing Partner
KORRY ELECTRONICS CO.,
a Division of Criton Technologies
("Tenant")
By /s/ X. X. Xxxxxxxxx
-------------------------------------
Its V X. Xxxxxx Technologies
-3-
STATE OF OF WASHINGTON )
) ss.
COUNTY OF KING )
On this 14th day of May, 1985, before me, the undersigned, a Notary
Public in and for the State of Washington, duly commissioned and sworn,
personally appeared Xxxxxx Xxxxx, to me known to be the Managing Partner of the
general partnership that executed the foregoing instrument, and acknowledged the
said instrument to be the free and voluntary act and deed of said general
partnership for the uses and purposes therein mentioned, and on oath stated that
he was authorized to execute the said instrument.
WITNESS my hand and official seal hereto affixed the day and year
first above written.
/s/ Illegible
----------------------------------------
NOTARY PUBLIC, in and for the State of
Washington, residing at Illegible
STATE OF OF WASHINGTON )
) ss.
COUNTY OF KING )
On this 10th day of May, 1985, before me, the undersigned, a Notary
Public in and for the State of Washington, duly commissioned and sworn,
personally appeared X. X. Xxxxxxxxx, to me known to be the Vice President of
Criton Technologies, the company that executed the foregoing instrument, and
acknowledged the said instrument to be the free and voluntary act and deed of
said company for the uses and purposes therein mentioned, and on oath stated
that he was authorized to execute the said instrument.
WITNESS my hand and official seal hereto affixed the day and year
first above written.
/s/ Illegible
----------------------------------------
NOTARY PUBLIC, in and for the State of
Washington residing at Redmond
-3-
SECOND AMENDMENT TO LEASE
THIS AGREEMENT entered into as of this 20th day of June, 1986 between
DEXTER AVENUE ASSOCIATES, a Washington general partnership ("Landlord") and
KORRY ELECTRONICS CO., a division of Criton Technologies ("Tenant").
RECITALS
A. Landlord and Tenant are parties to a lease dated July 17, 1984, as
amended by First Amendment dated May 10th, 1985 (collectively the "Lease") with
respect to premises located at 901 and 000 Xxxxxx Xxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxxxx as described more particularly in the Lease (the "Premises").
B. Landlord is obligated to Tenant for certain sums in connection with
the Lease, and the parties wish to modify the Lease to deal with that and
related matters.
NOW, THEREFORE, the parties covenant and agree as follows:
1. Landlord acknowledges that it is indebted to Tenant in the amount
of one Hundred and Fifty Thousand Dollars ($150,000), and that it has requested
that Tenant pay Seventy-Five Thousand Dollars ($75,000) of the cost of the
improvements described in Exhibit 1 hereto (the "Improvements"). In
consideration of Tenant's agreement to forgive the $150,000 and to advance
$75,000 of the Improvement costs, as and when due, Landlord agrees that:
1.1 The monthly rental due under the Lease is reduced to Fourteen
Thousand Four Hundred Ninety Five Dollars ($14,495) per month, commencing on
August 1, 1936 and continuing at such rate through July 31, 1991; and
l.2 The basic Lease term is extended through July 31, 1991;
2. Landlord agrees that it will complete construction of the forty
(40) parking spaces referenced in paragraph 1.6 of the First Amendment to Lease
on or before 20 Dec, 1986, and it if fails to do so, Tenant shall receive a
credit against the rent due under the Lease of $150.00 per day for each day
thereafter that completion of construction is so delayed.
3. Landlord agrees that it will pay the first Fifty Thousand Dollars
($50,000) of the cost of the Improvements and, in addition, all costs and
expenses of the Improvements in excess of the first One Hundred and Twenty Five
Thousand
(6/17/86)
-1-
Dollars ($125,000). These sums will be paid by permitting Tenant to offset
against the rents next accruing under the Lease the first $50,000 paid by Tenant
in costs and expenses in connection with the construction of the Improvements
and for all costs and expenses of the Improvements in excess of $125,000, as
such costs and expenses are incurred. Tenant shall present Landlord on each'
rental payment date hereafter with a schedule reflecting the Improvements costs
incurred by Tenant during the preceding month and shall reduce the rental
payment by the total thereof until such time as it has been reimbursed for the
$50,000 in Improvements costs and for all costs and expenses of the Improvements
in excess of $125,000. If Tenant's Improvements expenditures in any month exceed
the rental amount due for the succeeding month, Tenant may deduct the excess
from the next rent payment due from it thereafter.
4. If improvements to the 925 Premises (as described in the First
Amendment to Lease) are not completed by July 31, 1986, then effective August 1,
1986 monthly rent shall be reduced by Five Thousand Dollars ($5,000) per month
to Nine Thousand Four Hundred Ninety-Five Dollars ($9,495) per month until such
time as such improvements are completed and accepted by Tenant. In addition, if
the improvements to the 925 Premises are not completed by August 15, 1986, then
for each day thereafter until the improvements to the 925 Premises are completed
and accepted by Tenant, Tenant shall receive a credit of One Hundred Sixty-Seven
Dollars ($167) per day against the rent otherwise due under the Lease.
5. Landlord agrees that Tenant may select the contractor and contract
for the Improvements and such additional work as Tenant elects to have performed
for its own account.
6. This Second Amendment is made expressly contingent upon Tenant and
801 Dexter Associates executing a second amendment to the 801 Dexter Associates
lease extending the term thereof in the same manner as is described in paragraph
1.2 above. If such amendment has not been executed by June 23, 1986, then this
Second Amendment shall terminate, unless Tenant waives such contingency.
7. If Landlord fails to perform its obligations under the Lease as
required thereunder, Tenant may elect to do so on Landlord's behalf and offset
the cost thereof against rents next coming due under the Lease or pursue any
other remedy available to it at law or in equity for Landlord's default.
8. The Lease shall otherwise continue in full force and effect as
written.
-2-
IN WITNESS WHEREOF, the parties have executed this Second Amendment as
of the date and year first above written.
DEXTER AVENUE ASSOCIATES
("Landlord")
By: /s/ Xxxxxx Xxxxx
------------------------------------
Xxxxxx Xxxxx
Its Managing Partner
KORRY ELECTRONICS CO., a Division of
Criton Technologies
("Tenant")
By: /s/ Illegible
------------------------------------
Its: President
-3-
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this 20th day of June, 1986, before me, the undersigned, a Notary
Public in and for the State of Washington, duly commissioned and sworn
personally appeared XXXXXX XXXXX, known to me to be the Managing Partner of
DEXTER AVENUE ASSOCIATES, the partnership that executed the foregoing
instrument, and acknowledged the said instrument to be the free and voluntary
act and deed of said partnership, for the purposes therein mentioned, and on
oath stated that he was authorized to execute said instrument.
WITNESS my hand and official seal hereto affixed the day and year in
the certificate above written.
/s/ Illegible
-----------------------------------------
NOTARY PUBLIC in and for the State of
Washington, residing at Illegible County.
My commission expires 6-1-86.
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
On this 20th day of June, 1986, before me, the undersigned, a Notary
Public in and for the State of Washington, duly commissioned and sworn
personally appeared A. XXX XXXXX, known to me to be the PRESIDENT of KORRY
ELECTRONICS CO., the company that executed the foregoing instrument, and
acknowledged the said instrument to be the free and voluntary act and deed of
said company, for the purposes therein mentioned, and on oath stated that
_________ he was authorized to execute said instrument.
WITNESS my hand and official seal hereto affixed the day and year in
the certificate above written.
/s/ Illegible
-----------------------------------------
NOTARY PUBLIC in and for the state of
Washington, residing at Illegible County.
My commission expires 6-1-86.
-4-
THIRD LEASE AMENDMENT AGREEMENT
(901)
THIS AGREEMENT is made this 1st day of September, 1987 by and between Korry
Electronics Co. ("Korry"), a division of Criton Technologies, a New York general
partnership, and Dexter Avenue Associates, a Washington general partnership
referred to herein as the "Partnership."
RECITALS
X. Xxxxx and Dexter Avenue Associates entered into an Industrial Lease on
or about July 17, 1984 for certain commercial premises located in King County,
Washington, which premises is commonly known and is referred to herein as "901
Dexter Avenue North." Said Industrial Lease was subsequently amended by First
and Second Lease Amendment agreements dated May 10, 1985 and June 20, 1986,
respectively. Said Industrial Lease and the First and Second Lease Amendment
agreements shall be collectively referred to herein as the "901 Lease."
B. The parties now desire to amend the 901 Lease in certain material
respects as set forth herein.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. The Partnership shall immediately paint over the "Calcom" signage area
on the building located at 000 Xxxxxx Xxxxxx Xxxxx and perform any other
required work so the signage area blends with the color and texture of the
surrounding wall area. Such work and the materials to be used in connection with
such work shall be to a standard and of a quality to the reasonable satisfaction
of Korry.
2. In return for the agreement of Dexter Avenue Associates listed above,
Korry agrees that the Landlord's maintenance and replacement obligations under
the 901 Lease shall hereafter be limited to (1) the maintenance of the
utilities located outside of the leased premises, the foundations, the exterior
side of the roofs, and the exterior side of the exterior walls and (2) boiler,
heat pump/compressor replacement costs in excess of Five Thousand Dollars
($5,000.00) per calendar year. Dexter Avenue Associates hereby agrees that it
shall be responsible for the repair and maintenance of the exterior walls, roof
and foundation of both the 801 building, and 901-925 building to the extent that
(1) the Landlord for the 801 building is not responsible for such repair and
maintenance; and (2) insurance proceeds do not cover the same.
3. Korry represents and acknowledges to the
Page 1
Partnerships that the right of first refusal provisions as contained in Section
4 of Exhibit A to the Lease, as existing and as modified below, shall not and do
not extend to the air rights over and above the 801, 901 and 000 Xxxxxx Xxxxxx
Xxxxx premises or the parking lot used by Korry and located immediately to the
north of the 000 Xxxxxx Xxxxxx Xxxxx premises ("Air Rights"); provided, however,
the Lease shall be and is hereby amended to substitute the following right of
first refusal provision for the right of first refusal provisions contained in
Section 4 of Exhibit A to the Lease, which new provision shall be applicable,
according to its terms, to all future proposed purchase and exchange
transactions, and any proposed transactions concerning any of the Air Rights:
Landlord shall not sell or exchange the Property at any time during the
term of this Lease, including any extensions thereof, without first
complying with the terms of this paragraph. If at any time during the term
of this Lease (including any extensions thereof), Landlord receives any
bona fide offer for the purchase or exchange of the Property, which
Landlord intends to accept, (an "Offer"), Landlord shall promptly advise
Tenant of the receipt and acceptability of the Offer and provide to Tenant
a copy of all documents pertaining to said sale or exchange and information
on all the material terms and conditions thereof. Tenant shall have ten
(10) business days following the receipt of all such documents and
information within which to advise Landlord whether Tenant is willing to
purchase the Property on the same terms and conditions as the Offer,
subject to receipt of the approval of its governing Board or if Tenant is a
corporation, its Board of Directors. If Tenant so notifies Landlord of
Tenant's decision to purchase the Property, and further advises Landlord of
its Board's approval within ten (10) business days thereafter, then
Landlord shall sell the Property to Tenant, and Tenant shall purchase the
Property from Landlord, on the same terms and conditions as the Offer;
provided, however, that in the case of an exchange transaction described in
Section 1031(a) or (b) of the Internal Revenue Code of 1986 (an "Exchange"
and the "Code," respectively, Tenant shall have the right to purchase the
except tax benefits,
Page 2
If Tenant elects not to exercise its right of first refusal, Landlord may
sell the Property to the party making the Offer on the terms and conditions
stated in the Offer. If the sale or exchange transaction is not closed
within ninety (90) days in accordance with the terms and conditions of the
Offer, then Landlord must again notify Tenant as provided herein. This
right of first refusal shall run with the Property during the term of this
Lease, including any extensions thereof.
4. The phrase "in close proximity to," as contained in Line 14 of Section
1.6 of the First Amendment to the 000 Xxxxxx Xxxxxx Xxxxx Lease, shall be
construed to mean parking located within a 500 yard radius of the center of the
building at 000 Xxxxxx Xxxxxx Xxxxx. When construction of the improvements to
the parking lot property located to the north of 000 Xxxxxx Xxxxxx Xxxxx has
been completed, the Partnership shall immediately thereafter provide Korry with
one hundred twenty (120) parking spaces in the parking garage built as part of
the improvements to the parking lot, which parking spaces may be used by Korry
without charge to Korry and shall be at locations in the parking garage which
are the most convenient to Korry and its employees.
5. Korry shall pay to Dexter Avenue Associates, during the term of the 901
Lease, 30% of the reasonable maintenance costs actually incurred by Dexter
Avenue Associates for the parking lots located at North of 945 Dexter No.
6. All other terms, conditions and covenants of the Lease shall otherwise
remain in full force and effect.
Dated this 1st day of September, 1987.
KORRY ELECTRONICS CO
By /s/ X. X. Xxxxxxxxx
-------------------------------------
Sr. V. P. of Criton Technologies
DEXTER AVENUE ASSOCIATES
/s/ Xxxxxx X. Xxxxx
----------------------------------------
By Xxxxxx X. Xxxxx
Managing Partner
Page 3
STATE OF WASHINGTON )
) ss
COUNTY OF KING )
ON this 1st day of September, 1987, before me, a Notary Public in and for the
State of Washington, duly commissioned and sworn, personally appeared X. X.
Xxxxxxxxx, to me known to be the Sr. V. P. of Criton Technologies named in and
which executed the foregoing instrument; and he acknowledged to me that he
signed the same as the free and voluntary act and deed of said corporation for
the uses and purposes therein mentioned, being authorized so to do, and that the
corporate seal affixed thereto is the seal of said corporation.
WITNESS my hand and official seal the day and year in this certificate
above written.
(SEAL) /s/ Xxxxxxxx X. Xxxxxxx
----------------------------------------
Notary Public in and for the State of
Washington, residing at Illegible
My appointment expires Sept 5, 0000
XXXXX XX XXXXXXXXXX )
) ss
COUNTY OF KING )
ON this 1st day of September, 1987, before me, a Notary Public in and for the
State of Washington, duly commissioned and sworn, personally appeared Xxxxxx X.
Xxxxx, to me known to be the Managing Partner of Dexter Avenue Associates, the
Partnership named in and which executed the foregoing instrument; and he
acknowledged to me that he signed the same as the free and voluntary act and
deed of said partnership for the uses and purposes therein mentioned, being
authorized so to do, and that the partnership seal, if any, affixed thereto is
the seal of said partnership.
WITNESS my hand and official seal the day and year in this certificate
above written.
(SEAL) /s/ Xxxxxxxx X. Xxxxxxx
----------------------------------------
Notary Public in and for the State of
Washington, residing at Illegible
My appointment expires Sept 5, 1989
Page 4
(CRITON LOGO) (KORRY LOGO)
CRITON TECHNOLOGIES KORRY ELECTRONICS CO.
Electronics and 000 Xxxxxx Xxxxxx Xxxxx
Defense Group Xxxxxxx, Xxxxxxxxxx 00000
206 281-1300
January 7, 1991
Xxxx Family Partnership
c/o Xx. Xxxxxx Xxxx
00000 - 0xx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Subject: Lease Renewal
Dear Xx. Xxxx:
This letter is to notify you that Korry Electronics Company is exercising its
option to renew its lease on facilities located at 901 (and 925) Dexter Avenue
North, Seattle, Washington, 98109, for the two year period Beginning August 1,
1991. The Second Amendment to Lease, dated June 20, 1986, extends the basic
period of the lease through July 31, 1991. The rental rate during the option
period will be calculated in accordance with Paragraph 2.3 of the First
Amendment to Lease, dated May 10, 1985, which was unchanged by subsequent
amendments.
Sincerely,
KORRY ELECTONICS CO.
/s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxx
President
SRL/cp
cc: Del Bond
