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EXHIBIT 10.3
(12.25.92.CPI) XXXXXX ENTERPRISES, INC.
0000 XX XXXXXX XXXX.
XXXXXXXX, XXXXXXXXXX 00000
(000) 000-0000 OR 455-4781 FAX 391-4009
COMMERCIAL LEASE AGREEMENT
THIS LEASE made this 1st day of June, 1993, by and between XXXXXX
ENTERPRISES INC., A Washington Corp. ("Landlord") and Polymer Technology Intl.,
A Washington Corporation ("Tenant").
WITNESSETH:
1. PREMISES. For the term specified below, Landlord leases to Tenant, the
building, or portion of the building, located at 0000 XX Xxxxxx Xxxx.,
Xxxxxxxx, Xxxxxxxxxx 00000 (the "Premises"). The Premises are located upon
property legally described in Exhibit "A" (the "Property"). The Premises are
diagrammed on the Exhibit "B" map.
2. TERM.
*See Exhibit F
2.1 Commencement Date and Expiration. The term of this Lease shall
commence* on September 15, 1993 and end on September 14, 1998. Tenant shall not
enter the Premises prior to the Lease commencement date without the prior
written consent of the Landlord. The Lease term includes any extensions of the
initial term. See Exhibit G.
2.2 Delays. See exhibit "F" Commencement.
3. RENT.
3.1 Minimum Rent. Tenant covenants and agrees to pay Landlord, at 0000
Xxxxxx Xxxxxxxxx X.X., Xxxxxxxx, Xx. 00000 or to such other party or at such
other place as Landlord designates, the Minimum Rent, initially $15,375.00, plus
the additional amounts described in this Lease, in advance, on or before the
first day of each month of the Lease term.
3.2 Inflation Adjustment to Minimum Rent. Minimum Rent shall be
adjusted beginning on the 25th month of this Lease by using the revised Consumer
Price Index (CPI) for all urban consumers as published by the United States
Department of Labor for the Seattle Metropolitan area (the "Index"). As of the
25th month and on each anniversary of the Lease commencement date thereafter,
the percentage of change in the Index from the previous year compared to the
most current Index shall be multiplied by the Minimum Rent amount; the result
shall be added to the Minimum Rent to determine the Minimum Rent for the coming
year, the maximum adjustment increase shall be no more than 5%. In no event
shall Minimum Rent be less than the previous year's Minimum Rent. If the
publication of said Index is discontinued the Landlord in its sole discretion
shall select a similar replacement index from those available.
3.3 Late Rent and Other Charges. If any rent becomes more than 10 days
past due, Tenant will pay a late charge of 10% of the total monthly rent as
additional rent. However, Landlord may additionally exercise a statutory
Three-Day Notice to Quit Premises or Pay Rent as soon as, and anytime after,
rent is not paid on the first of the month. If so, Tenant will pay the
additional sum of $30 as the cost for preparing and serving notice and this
amount will be added to delinquent rent due. Tenant will pay a $20 fee for
special handling of any dishonored check as additional rent. If no rent check is
honored within the first 10 days of the month, Tenant will pay the late charge
and is subject to a Three-Day Notice to Quit Premises or Pay Rent, as above.
3.4 Interest. Interest will be charged by Landlord on the total rent
unpaid, beginning after delivery of the Notice to Quit Premises or Pay Rent, or
upon expiration of the ten day grace period, whichever date is earlier. The
interest shall be treated as additional rent due. Interest shall be at the rate
of 12% per year.
3.5 Rent Offset or Holdback Prohibited. Rent offsets or holding rent
back for any reason is hereby prohibited.
4. SECURITY DEPOSIT. Landlord acknowledges receipt of Fifteen Thousand and
no/100 Dollars ($15,000.00) as a security deposit. Landlord may deduct from
this security deposit amounts owed under this Lease, including Landlord's costs
related to any default by Tenant. Tenant shall then pay to the Landlord any
deficiency for the default costs and pay to the Landlord the amount needed to
bring the security deposit back to its original amount. Repayment shall be made
within ten days of notice from Landlord. All interest earned on the security
deposit belongs to Landlord. Within 60 days from termination of tenancy and
vacation or abandonment of Premises, Landlord will give Tenant a statement of
the basis for retaining any of the security deposit and any additional amounts
due, or refund any amount due to Tenant at Tenant's last known address.
Withholding security deposit monies by Landlord does not relieve Tenant of
responsibility for payment of damages exceeding the security deposit amount.
Landlord may choose to proceed against Tenant for this additional amount,
together with reasonable attorney's fees. The security deposit may not be used
by Tenant for payment of last month's rent. If Landlord transfers its interest
in this Lease, Tenant shall look solely to the new Landlord for return of the
security deposit.
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5. UTILITIES. Tenant agrees to timely pay all charges for light, heat,
trash disposal services and all other utilities to the premises during the full
term of this Lease. If the Leased Premises are part of a building or larger
premises to which such costs are charged as a whole, then Tenant agrees to pay
a proper and fair share of said charges as determined by Landlord. Landlord
shall under no circumstances be liable to Tenant in damages or otherwise for
failure to furnish, or interruption in services of any water, electricity,
trash disposal, sewerage or other utility service for any cause whatsoever.
Landlord may charge as additional rent, on a monthly basis or otherwise, an
estimated amount for Tenant's share of utility charges. Tenant must object to
any final utility charge within two months of Landlord's receipt of the actual
xxxx or receipt of the final charge, whichever date is later, or is forever
barred.
5.1. Non-Liability for Interruption. Lessor shall under no
circumstances be liable to Lessee in damages or otherwise for failure to
furnish or for any interruption of service of any water, gas, electricity,
garbage disposal or for stoppage of sewerage for any cause whatsoever.
6. NET LEASE; TAXES AND INSURANCE.
6.1. Rent to be Net to Landlord. The parties intend that the rent
payable hereunder shall be "triple net" to Landlord, so that this Lease shall
yield to Landlord the full rent and Tenant shall pay all costs, expenses and
obligations of every kind and nature whatsoever relating to the Premises. The
cost of repair and maintenance of parking lot, landscaping, irrigation, and
HVAC are the responsibility of the Landlord.
6.2. Taxes. In addition to the Minimum Rent, as additional rent,
Tenant agrees to pay all real estate taxes and assessments, including but not
limited to LIDs, ULIDs, RIDs, or other assessments, applicable to the Premises
and due and payable during the Lease term. If the Premises are part of a larger
building, Tenant shall pay its portion of said taxes on the building equal to
the percentage of the total net rentable space in the building leased to
Tenant, plus the prorated portion of the taxes applicable to the land described
in Exhibit "A." Tenant shall pay 1/12th of said real estate taxes and
assessments each month as additional rent. If any other law, statute or
ordinance levies any tax (other than Federal or State income taxes) upon rents,
Tenant shall similarly pay such tax.
6.3. Fees. All fees and charges including all license fees, personal
property taxes and other governmental charges levied on the Premises or upon
Tenant's business will be paid directly by Tenant. If the Premises are a part
of a building or larger premises to which such charges are charged as a whole,
then Tenant agrees to pay a proper and fair share of said charges as additional
rent.
6.4. Landlord's Insurance.
6.4.1. Premiums. When Landlord submits proof of payment of insurance
premium, Tenant agrees to pay as additional rent, premiums for fire, flood,
extended coverage, earthquake and other insurance which may be charged during
the Lease term upon the Premises, or upon the total building of which the
Premises are part. Tenant's premium share shall be pro-rated if the Premises
are part of a building. Tenant shall pay to the Landlord 1/12th of the annual
premium for said insurance each month as additional rent. This Lease imposes no
duty to insure upon Landlord.
6.4.2. Conformity with Insurance Policy. Tenant will not keep, use,
or offer for sale in or upon the Premises any article prohibited by the
standard form fire insurance policy.
7. TENANT'S USE OF PREMISES. Tenant shall use the Premises only for
office & Mfg of Medical devices, equip. or Medicine and no other purpose or
use without the prior written consent of Landlord. Tenant agrees that it has
determined the Premises can be used for the permitted use. Tenant acknowledges
that neither 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. Tenant shall not operate, sublease or assign to any automobile
related business.
8. TENANTS DUTY OF REPAIR AND MAINTENANCE
8.1. Premises "As Is". The Premises have been inspected and are
accepted "as is" by Tenant in their present condition and Tenant acknowledges
the present condition of the Premises is good. Landlord is responsible for
containment or removal of any hazardous material currently on the Premises.
8.2. Tenant Cleaning; Conformance with Law. Tenant shall, at its own
expense and at all times, keep the Premises neat, clean, and in a sanitary
condition, and keep and use the Premises in accordance with applicable laws,
ordinances, rules, regulations, and requirements of governmental authorities.
8.3. Waste. Tenant shall permit no waste, damage or injury to the
Premises or building. For example, Tenant shall protect water, heating, gas,
drainage and other pipes from freezing, breaking, and blockage; repair all
leaks and damage caused by leaks; replace interior and exterior light bulbs or
fixtures as needed; replace glass in windows and doors of the Premises if
cracked or broken; paint interior surfaces as needed; repair or replace floor
coverings as needed; and remove ice and snow from sidewalks adjoining the
Premises.
8.4. Tenant Repairs. Tenant shall make repairs necessary to maintain
the Premises in good condition except for structural repairs to the roof,
exterior walls and foundation, which are the responsibility of the Landlord.
8.5. Electrical Overloading. If Tenant installs any electrical
equipment that overloads the line to the Premises or in the building of which
the Premises are a part, Tenant shall at its own expense make whatever changes
are necessary to comply with the
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requirements of the Insurance Underwriters and/or Governmental authorities
having jurisdiction.
8.6 Landlord's Right to Cure Tenant's Defaults. If Tenant
fails to perform a duty required by this Section 8 to the satisfaction of
Landlord within thirty (30) days after written demand, or less if an emergency,
Landlord may undertake the duty, without liability to Tenant for any loss or
damage that may accrue to Tenant. Tenant shall pay Landlord's costs for
undertaking the duty as additional rent. Landlord's costs will include a markup
of twenty (20%) percent on said costs to cover Landlord's overhead.
9. LANDLORD REPAIR. Landlord shall maintain the structural portions
of the Premises, that is, the exterior of the roof, exterior walls (except
painting) and foundation. If Landlord must make structural repairs due to
Tenant's act or failure to act, the cost of repairs shall become additional
rent. Tenant must give Landlord written notice of necessity for structural
repairs except which are not readily discernible.
10. COMPLIANCE WITH RULES. Tenants shall comply with rules concerning
the Premises provided to Tenant by Landlord. Such rules shall constitute part
of this Lease. Landlord may make amendments and additional rules for the
safety, care, cleanliness and aesthetics of the Premises and the Property. A
violation of any of the rules from time to time in effect shall constitute
default by Tenant under this Lease. These rules are made to enable Landlord to
operate the Property and Premises in a manner beneficial to both Landlord and
Tenants. If there is an express, direct conflict between such rules and this
Lease, the Lease shall control. Landlord shall not be liable to Tenant or to
any third parties for failure of other tenants or occupants of the building to
perform or observe Landlord's rules.
11. SIGNS. No signs or symbols may be placed in the windows or doors
of the Premises, or upon any exterior part of the building or Property, without
Landlord's prior written consent which shall not be unreasonably withheld.
Tenant's failure to remove an unapproved sign or symbol within forty-eight (48)
hours will constitute a default under the Lease. Additionally, Landlord shall
have the right to cause the sign to be removed and the building repaired at
Tenant's sole expense. At the termination of this Lease, Tenant will remove all
signs placed by it upon the Premises, and will repair any damage caused by
removal. All signs must comply with all applicable sign ordinances and be
placed in accordance with required permits.
12. ALTERATIONS.
12.1 Tenant. Tenant shall not make any alterations, additions
or improvements ("Alterations") to the Premises without the prior written
consent of Landlord. Alterations shall be at the sole expense of Tenant, and
shall become the property of the Landlord, at the termination of this Lease,
without disturbance or damage. However, the Landlord may require all or some of
the Alterations be removed and the Premises restored at Tenant's sole expense.
Tenant holds the Landlord free and harmless from damage, loss or expense
arising out of the Alterations. Alterations shall be performed only according
to Landlord approved plans by adequately insured, competent and licensed
contractors.
12.2 Landlord. Tenant agrees that Landlord has the right to
make Alterations to the Premises and to the building in which the Premises are
situate and Landlord shall not be liable for any damage which Tenant might
suffer by reason of such undertaking. Landlord shall notify Tenant 48 hours in
advance for any alteration.
12.3 Liens. Tenant shall keep the Premises and the Property
free and clear from any liens or lien claims arising out of any work performed,
materials furnished or obligations incurred by or on behalf of Tenant. Tenant
shall defend, indemnify and hold Landlord harmless from any liability for
losses or damages resulting directly or indirectly from any such liens or lien
claims and from any work performed on or about the Premises by Tenant, its
agents, employees, contractors or subcontractors. If any lien or lien claim is
filed against any part of the Property or Premises by any person claiming by,
through or under Tenant, Tenant shall, upon Landlord's request, at Tenant's
expense, immediately furnish to Landlord a bond in form and amount and issued
by a surety satisfactory to Landlord indemnifying Landlord and the Property
against all resulting liability, cost and expenses, including attorneys' fees.
If such bond has been furnished to Landlord, Tenant at his sole cost and
expense and after written notice to Landlord, may contest by appropriate
proceedings conducted in good faith and with due diligence any lien,
encumbrance or charge against the Premises arising from work done or materials
provided to or for Tenant if, but only if, such proceedings suspend the
enforcement and collection of the lien or the lien claim and neither the
Premises or the Property is or will be in any danger of being sold, forfeited
or lost.
13. CONDEMNATION.
13.1 General. If a public or quasi public authority, or private
corporation or individual having the power of condemnation (condemnation being
the exercise of power by legal proceedings or otherwise and/or a voluntary sale
or transfer to the condemnor under threat of condemnation) purchases a portion
of or all of the Premises, this Lease shall automatically terminate as to the
portion so taken as of the date the condemnor has right to possession. If a
portion of the Premises taken renders the remaining portion untenantable and
unusable by Tenant, Tenant shall have the option to terminate this Lease.
13.2 Taking of the Property. If a portion of the Property is
taken by condemnation (whether or not the Premises are affected) and (i)
Landlord determines that the remaining portions cannot be economically and
effectively used by it, or (ii) in the opinion of the Landlord the building
should be restored in such a way as to alter the Premises materially, then
Landlord shall have the option to terminate this Lease.
13.3 Restoration and Repair. If a portion of the Premises is
condemned and neither party elects to terminate the Lease, then Landlord
shall, to the extent of severance damages received by Landlord and equitably
allocated by Landlord among the Premises and other portions of the Property,
repair the damage to the Premises at Landlord's cost and expense.
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Tenant must repair, restore or replace alterations or property and at its sole
expense. Any sums received by Tenant due to the taking shall be applied to the
restoration and repair of Alterations.
13.4. Exercise of Options. If either party elects to exercise any
option to terminate the Lease under this Section 13, it shall do so by giving
written notice of the election to the other party not later than ninety (90)
days after the date the nature and extent of the taking by condemnation have
been finally determined (whether by issuance of a certificate of public use and
necessity or its equivalent by a court or other tribunal having jurisdiction
over the Property or otherwise), and if such notice is given, this Lease shall
terminate on the earlier of the date stated in the notice or the date of taking.
13.5 Claims. Any compensation related to the condemnation paid to
Landlord, including compensation for the value of the leasehold, is the
property for the Landlord and Tenant hereby assigns to Landlord any and all
claims to the compensation. However, the Tenant is not precluded from asserting
claims against condemnor, not Landlord, for the taking of Tenant's personal
property or for moving expenses.
14. PARKING. Tenant understands that parking is apportioned in conformity
with controlling zoning ordinances and that Landlord shall have the right to
make such regulations as Landlord deems desirable for the control of parking
vehicles on the Property or other property under Landlord's control, including
the right to designate certain areas for parking of the Tenant, employees of
Tenant, its customers and other Tenants of Landlord's building(s).
15. SUBLETTING OR ASSIGNMENT.
15.1 Landlord's Consent Required. Tenant shall not transfer,
mortgage, pledge, hypothecate, encumber or otherwise assign this Lease or any
interest therein, and shall not sublet or share all or any part of the Premises
(voluntarily, involuntarily or by operation of law), without the prior written
consent of the Landlord; which shall not be unreasonably withheld and any
attempt to do so without such consent shall be void and constitute breach of
this Agreement.
15.2 No Release of Tenant. No assignment or subletting, and no consent
of Landlord to any assignment or subletting, by Tenant or Tenant's sub or
assignees of any tier, shall relieve Tenant of any obligation to be performed
by Tenant under this Lease, whether before or after such consent, assignment or
subletting. The consent of Landlord to an assignment or subletting does not
relieve the obligation to obtain Landlord's prior written consent to any other
assignment or subletting. The acceptance of rent by Landlord from any person or
entity other than Tenant shall not be deemed a waiver by Landlord of any
provision of this Lease or be deemed a consent to any assignment or subletting.
All assignees or subletters shall assume all obligations of this Lease.
15.3 Transfers of Stock or Other Assets. If Tenant (or any of its
permitted successors or assigns) is a corporation or a partnership, any
transfer of the Lease by merger, consolidation, liquidation, dissolution, or
any change in the majority ownership of or power to vote a majority of its
outstanding voting stock, whether voluntary, involuntary, or by operation of
law, shall constitute a voluntary assignment for purposes of this Section 15.
Landlord agrees to such assignment.
15.4 Transfer and Assignment of Premises by Landlord. Landlord shall
have the right to transfer and assign, in whole or in part, its rights and
obligations under this Lease and in the Premises and/or the Property. In the
event of any such transfer or transfers, the transferor shall be automatically
relieved of any and all obligations and liabilities on the part of Landlord
accruing from and after the effective date of the transfer.
16. ACCESS. Landlord shall have the right to enter the Premises at all
reasonable times to clear, inspect, make repairs, additions or alterations, and
to show the Premises to prospective tenants, purchasers or mortgagees. Landlord
agrees to give Tenant 24 hours notice prior to access except in the case of
emergency.
17. DESTRUCTION OF OR DAMAGE TO THE BUILDING.
17.1 Repairs by Landlord. If the Demised Premises or any portion of
the building in which the Demised Premises are located should be damaged or
destroyed during the Lease term by any casualty, the Landlord may either
terminate this Lease or elect to repair and/or restore the damage or
destruction. If the Landlord elects to repair and/or rebuild, the Tenant's
rent shall be abated, as provided below, during the time of restoration.
Landlord shall advise Tenant in writing of Landlord's intentions within ninety
(90) days after the casualty. If the Landlord elects not to repair or rebuild
then this Lease shall terminate without further notice, and all further
obligations under this Lease of either party shall cease as of the date Tenant
was forced to cease business in the Premises. If such damage occurs and this
Lease is not so terminated by Landlord this Lease shall remain in full force and
in effect. The Landlord's obligation under this paragraph shall not exceed the
work done in the original construction of the Premises.
17.2 Continuation of Business. At Tenants option, Tenant agrees
during any period of reconstruction or repair of the Premises and/or of said
building to continue the operation of its business in the Premises to the
extent reasonably practical.
17.3 Repairs of Tenant Alterations. Tenant shall in the event of any
damage or destruction, unless this Lease shall be terminated as provided
above, promptly replace or fully repair all doors, exterior signs, trade
fixtures, equipment and other installations originally installed by Tenant.
Landlord shall have no obligation to do so. Landlord shall have no interest in
the proceeds of any insurance carried by Tenant on Tenant's interest in this
Lease and Tenant shall have no interest in the proceeds of any insurance
carried by the Landlord.
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17.4 Abatement of Rent. The rent shall be abated, in a fair
proportion as determined by Landlord, during any period in which there is
damage or restoration causing substantial interference with the operation of
Tenant's business. No abatement shall occur if the damage or destruction was
caused in whole or in part by Tenant.
18. TENANT INDEMNIFICATION, LIABILITY AND PERSONAL PROPERTY INSURANCE.
18.1. No Liability. Landlord shall not be liable to Tenant and
Tenant hereby waives all claims against Landlord for any injury or damage to any
person or property in or about Premises or the Property by or from any cause
whatsoever including, but not limited to, water leakage from the roof, walls,
basement or other portion of the Premises or the Property, or caused by repairs,
operations, gas, fire, oil, electricity; provided, that nothing contained in
this Lease relieves Landlord from liability for any such injury or damage caused
solely by Landlord's negligence or failure to perform normal maintenance.
Tenant, as a material part of the consideration to be received by Landlord under
this Lease, assumes all risk of, and waives and releases all claims for, any
damages through Tenant, which damages result from any accident or occurrence in
or upon the Premises or the Building from any cause whatsoever unless caused
solely by the negligence of Landlord, or failure to perform normal maintenance,
its agents or invitees.
18.2. Indemnification. Tenant shall defend, indemnify and hold
Landlord harmless from and against any and all liability, claims, causes of
action, damages, costs and expenses including without limitation, attorney's
fees, for any injury or damage to any person or property: (i) occurring in, on
or about the Premises or any part of the Premises unless caused solely by
Landlord's negligence, or failure to perform normal maintenance, (ii) occurring
in, on or about any part of the Property, the use of which Tenant may have in
conjunction with other tenants or occupants of the Building, when such injury
or damage shall be caused in whole or in part by the act or omission of Tenant,
its officers, agents, contractors, employees, licensees, or invitees, (iii)
arising from the conduct or management of any work or thing done by Tenant in
or about, or from transactions of Tenant concerning, the Premises, or (iv)
arising from any breach or default under this Lease by Tenant, or from any act
or omission of Tenant, or any of its officers, agents, employees, contractors,
licensees, or invitees. The foregoing provisions shall not be construed to
make Tenant responsible for loss, damage, liability or expense resulting from
injuries to third parties caused solely by the negligence or failure to perform
normal maintenance, or of Landlord or its officers, agents, employees,
contractors, licensees, or invitees. The provisions of this Section 18.2 shall
service the expiration of or termination of this Lease with respect to any
events occurring prior to such expiration or termination. Upon notice by
Landlord, Tenant at Tenant's expense shall defend Landlord, in any action or
preceding brought against Landlord by reason of any claim described in this
Section 18.2.
18.3. Public Liability and Property Damage Insurance. Tenant shall,
during the Lease term, at its sole cost, keep full force and effect a policy of
public liability and property damage insurance with respect to the Premises and
the business operated by the Tenant and/or any Sub-Tenant of Tenant in the
Premises, naming Landlord as an additional insured, in which the limits of
public liability shall be not less than $500,000 per person and $1,000,000 per
accident and in which the property damage portion shall not be less than
$500,000.
18.4. Approval of Insurer and Copies of Policies. Whenever Tenant
is hereby required to insure against any risk, said insurance shall be with an
insurance company approved by the Landlord which approval shall not be
unreasonably withheld and a copy of said policy or Certificate of Insurance
carrier endorsed thereon providing that said policy shall remain in full force
and effect until Landlord is notified in advance and in writing thirty days
before any change or cancellation.
18.5. Conformity with Insurance Policy. Tenant will not keep, use,
or offer for sale in or upon the Premises any article prohibited by the
standard form fire insurance policy.
18.6. Personal Property Insurance. All personal property kept on the
Premises shall be at the sole risk of Tenant. Tenant shall take full
responsibility for obtaining casualty, liability and personal property
insurance. Tenant shall indemnify and hold Landlord harmless for any damage,
either to person or property, sustained by Tenant or others for any reason,
including damage caused by any defects now in said Premises or hereafter
occurring, or due to the failure of Tenant to make repairs to the premises that
are the tenant's responsibility, or caused by fire, windstorm, flood, vandalism
or theft, etc., or from any act of God or a third party.
19. ESTOPPEL CERTIFICATE. Tenant shall, from time to time, upon written
request of Landlord, execute, acknowledge and deliver to Landlord or its
designee a written certificate of Tenant stating: that Tenant has accepted the
Premises (or if Tenant has not done so, that Tenant has not accepted the
Premises and specifying the reasons therefore); the commencement and expiration
dates of this Lease; the dates on which rent under this Lease has been paid;
that this Lease is in full force and effect and has not been modified (or if
there have been modifications, that this Lease is in full force and reflect as
modified and stating the modifications); whether or not there are, to Tenant's
knowledge, then existing any defaults by Landlord in the performance of its
obligations under this Lease (and if so, specifying the name); whether or not
there are then existing any defenses against the enforcement of any obligations
of Tenant under this Lease (and if so, specifying the same); the amount of the
security deposit and prepaid rent, if any, that has been deposited with
Landlord; and any other information reasonably requested. It is agreed that any
such certificate deliver pursuant to this paragraph may be relied upon by a
prospective purchaser or mortgagee of any part of Landlord's interest in the
Premises, or an assignee of any mortgage and any part of Landlord's interest.
If Tenant fails to respond within thirty (30) days after receipt by Tenant of
Landlord's written request, Tenant shall be deemed to have admitted the
accuracy of any information supplied by Landlord to such prospective purchaser,
mortgagee or assignee, but such admission shall not relieve Tenant of the
obligation to provide the said Certificate. Further, at Landlord's option, such
failure shall be deemed a breach by Tenant of this Lease.
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20. SUBORDINATION.
20.1. Priority. This Lease shall be subject and subordinate to the
lien of any mortgage or deed of trust which may now exist or hereafter be
executed in any amount for which all or a portion of the Property or Premises is
specified as security, and all renewals, modifications, extensions,
substitutions, replacements, and/or consolidations of such mortgage or deed of
trust. Not withstanding the foregoing, Landlord shall have the right to
subordinate or cause to be subordinated any such liens to this Lease. Tenant
shall, notwithstanding any subordination, attorn to and become the tenant of the
purchaser at such foreclosure sale or grantee of such deed (the "then owner") if
so requested by the then owner. Tenant covenants and agrees to execute and
deliver any of the instruments or documents described in this paragraph within
thirty (30) days after receipt of written request.
20.2. Mortagee Protection. Tenant agrees to give a copy of any
notice of default served upon Landlord to any mortgagee identified to Tenant by
Landlord. Tenant further agrees that any such mortgagee shall have the right to
cure such default on behalf of the Landlord within thirty (30) days after
receipt of such notice. Tenant further agrees not to invoke any of the remedies
which it may have against Landlord under the Lease until such thirty (30) days
have elapsed, or during any period that the mortgagee is proceeding to cure such
default with due diligence, or is diligently taking steps to obtain the right to
enter the Premises and cure the default, whichever is later.
21. WAIVER OF SUBROGATION RIGHTS. Anything in this Lease to the contrary
notwithstanding. Landlord and Tenant each hereby waive any and all rights of
recovery, claims, actions or causes of action against the other, its agents,
officers, directors, shareholders, or employees, for loss or damage to the
Premises or any improvements to the Premises, or the adjoining property or any
improvements to the Property, or any personal property of such party, that is
caused or results from fire and other perils insured against under the normal
extended coverage clauses of standard insurance policies carried by the parties
and in force at the time of damage or loss.
22. DEFAULT.
22.1. Right to Re-enter. If Tenant fails to pay rent within three
(3) days following delivery to the Premises of a "Notice to Pay Rent"; or if
Tenant fails to perform any provisions of the Lease, other than rent, for more
than ten (10) days after written notice of default has been mailed to Tenant, or
if Tenant becomes bankrupt or insolvent files any debtor proceedings or files,
or has taken against it, any proceedings of any kind under any provisions of a
federal or state bankruptcy, insolvency or suffers this Lease to be taken under
any writ of execution; then Landlord besides other rights or remedies it may
have, may immediately re-enter and remove all persons and property from the
Premises and store such property in a public warehouse or elsewhere at the cost
of and for the account of Tenant, all without service of notice or resort to
legal process and without being deemed guilty of trespass or becoming liable for
any loss or damage which may be occasioned thereby.
22.2. Loss of Tenant's Right to Cure. Despite any provision to the
contrary, if Tenant defaults three (3) times under one or more provisions of
this Lease, at Landlord's option and without further notice, Tenant shall be
deemed to have forfeited its right of cure.
22.3. Landlord's Other Remedies. Notwithstanding Landlord's
above-mentioned remedies for default, those remedies shall not be deemed
exclusive, and Landlord may use and proceed under any legal procedures
available, including eviction pursuant to RCW 59.12.
22.4. Right to Re-let. Should Landlord elect to re-enter as herein
provided for above, or should it take possession pursuant to legal proceedings
or pursuant to any notice provided by law, it may either terminate this Lease or
it may from time to time, without terminating this Lease, make such alterations
and repairs as may be necessary in order to re-let said Premises or any part
thereof for such terms (which may be for a term extending beyond the term of
this Lease) and at such rental or rentals and upon such other terms and
conditions as Landlord in its sole discretion deems advisable.
22.4.1. Application of Rent from Re-letting. Upon each such
re-letting described above, all rentals received by the Landlord from the
re-letting shall be applied first to the payment of any indebtedness other than
rent due hereunder from the Tenant to Landlord; second to the payment of rent
due and unpaid hereunder and the residue, if any, shall be held by Landlord and
applied in payment of future rent on the same basis as listed herein and as the
rentals may become due and payable hereunder. If sub-letting rentals received
during any month after deduction for non-rent obligations of Tenant to Landlord
as described above are less than that to be paid during that month by Tenant
hereunder, Tenant shall pay the deficiency to Landlord. Such deficiency shall be
calculated and paid monthly. Tenant shall have no right to any excess rental.
22.4.2. Termination. No re-entry or taking possession of said
Premises by Landlord shall be construed as an election on Landlord's part to
terminate this Lease unless a written notice of such intention is given to
Tenant or unless the termination thereof be decreed by a court of competent
jurisdiction. Not withstanding any re-letting without termination, Landlord may
at any time thereafter elect to terminate this Lease for such previous breach.
Should Landlord at any time terminate this Lease for any breach, in addition to
any other remedies it may have, it may recover from Tenant all damages it may
incur by reason of the breach including the costs and reasonable attorney's
fees, and including the worth at the time of such termination of the excess, if
any, of the amount of rent and charges equivalent to rent reserved in the Lease
for the remainder of the stated term; all such amounts shall be immediately due
and payable from Tenant to Landlord as additional rent.
22.5. Landlord Default. Landlord shall have fifteen (15) days, or
longer if more time is reasonably required, to cure default after written notice
is received from Tenant.
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23. COSTS AND ATTORNEY'S FEES; ACTIONS. In an action for breach of this
Lease, the losing party agrees to pay the prevailing party's reasonable costs
and attorney's fees. Venue for any legal action brought under this Lease is in
the county in which the Premises are situated. Washington law shall govern this
Lease.
24. NON-WAIVER; NO ACCORD SATISFACTION. The waiver by Landlord of any
breach of any Lease provision is not a waiver of the provision. Acceptance of
rent by Landlord shall not be deemed a waiver of any existing breach by Tenant
regardless of Landlord's knowledge of that breach when accepting the rent.
Landlord's acceptance of keys from the Tenant shall not waive any provision of
the Lease. No payment by tenant, or receipt by Landlord of less than the full
monthly rent, or any endorsement or statement on any check or any letter
accompanying any payment of rent, may be deemed accord and satisfaction. The
Landlord may accept such check or payment without prejudice to Landlord's right
to recover the balance of such rent or pursue any other legal remedy.
25. SURRENDER OF LEASE AND HOLDING OVER.
25.1. Surrender Upon Termination. At the expiration of the Lease
term, Tenant shall surrender the Premises in the same condition of cleanliness,
repair and sightliness the Premises were in upon commencement of the Lease,
ordinary wear and tear excepted. Tenant shall surrender all keys to the
Premises to Landlord at the place then fixed for payment of rent, and shall
inform Landlord of all combination on locks and safes. Tenant shall remove all
its movable personal property at its own expense. Any property not so removed
shall be disposed of by Landlord without account to Tenant. Tenant shall be
liable for Landlord's costs regarding the property. If the Premises are not
surrendered at such time, whether with Landlord's consent or not, Tenant
indemnifies Landlord against loss of liability resulting from delay by Tenant
in surrendering the Premises, including without limitation, any claims made by
any succeeding tenant founded upon the delay. Tenant's obligation to observe or
perform this covenant shall survive termination of the Lease.
25.2 Liquidated Damages. If Tenant at termination of this Lease fails
to yield possession to Landlord, Landlord may require Tenant to pay and Tenant
shall pay as liquidated damages for each day possession is withheld, an amount
equal to double the amount of the daily Minimum Rent last in effect, computed
on a thirty day month basis.
25.3 Holding Over. Any holding over after the expiration of the said
term, with the consent of the Landlord, shall be construed to be a tenancy
from month to month at the monthly rentals herein specified in the paragraph on
Liquidated Damages above and shall otherwise be on the Lease's terms and
conditions.
26. EVENTS BEYOND PARTIES' CONTROL. If either party hereto is delayed or
prevented from performing any act required here-under, except payment of rent
and all other amounts by Tenant, by reason of labor troubles, inability to
procure materials, failure of power or water, restrictive governmental laws or
regulations, riots, war or other reason of like nature not the fault of the
party delayed, then performance of such act is excused for the period of the
delay and the period for the performance extended for a period equal to the
delay.
27. SECURITY MEASURES. Tenant hereby acknowledges that the rental payable
to Landlord hereunder does not include the cost of guard service or other
security measures, and that Landlord shall have no obligation whatsoever to
provide same. Tenant assumes all responsibility for the protection of Tenant,
its agents and invitees from acts of third parties.
28. RECYCLING. Tenant will recycle materials including, but not limited
to, the following: Newspaper, Aluminum/Metal/Tin, Glass, #1 PET & #2 HDPE
Plastics, Paperboard Milk & Juice Cartons, Copy/Ledger Paper, Mixed Paper and
Cardboard.
Methods of participation are at the tenant's discretion (for example:
Commercial Pick-up, transfer stations, buy back centers, etc.) Landlord's
recycling coordinator is available for assistance in program development and
implementation.
29. GENERAL.
29.1 Form. The grammatical changes needed to make this Lease apply in
the plural sense, where there is more than one Tenant, and to either
corporations, associations, partnerships or individuals and males or females,
shall be assumed as though fully expressed.
29.2 Captions. The captions of the several articles contained herein
are for convenience only and do not define, limit, describe or construe the
contents of the articles.
29.3 Notice. Any notice required to be given by either party to the
other shall be deposited in the United States mail, postage prepaid, addressed
to the Landlord at 0000 X.X. Xxxxxx Xxxx., Xxxxxxxx, XX 00000 or to the Tenant
at 0000 X.X. Xxxxxx Xxxx., Xxxxxxxx, XX 00000 OR at such other address as either
party may designate to the other in writing from time to time.
29.4. Commissions. Each party represents that it has not had dealings
with any real estate broker, finder or other person who would be entitled to any
commission or fee in connection with the negotiation, execution or delivery of
this Lease except N/A. Each party shall indemnify, defend and hold the other
party harmless from all claims, including attorneys' fees, that may be asserted
against the other party by any broker, finder or other person with whom the
party giving the indemnity has or purportedly has dealt, except the broker named
above.
29.5 Joint and Several Obligations. If the Tenant is more than one
person or entity, the obligations imposed on the Tenant shall be joint and
several.
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29.6. Severability. The unenforceability, invalidity, or illegality
of any provision of this Lease shall not render any other provisions
unenforceable, invalid or illegal.
29.7. Recordation. Tenant shall not record this Lease or any
memorandum of Lease which refers to this Lease. Any such recording shall be a
breach under this Lease.
30. ENTIRE AGREEMENT. This Lease contains the entire agreement between the
parties; there are no verbal promises. Any written promises between them are
attached hereto as an addendum. Any agreement hereafter made shall not change,
modify, discharge or effect an abandonment of this lease in whole or in part,
unless the agreement is in writing and signed by the party against whom
enforcement of this Lease or of any changes, modifications, discharge or
abandonment is sought. This Lease becomes effective as a Lease only upon
execution and delivery by Landlord and Tenant.
31. SUCCESSORS. The covenants and conditions herein contained shall,
subject to the provisions as to assignment, apply to and bind and inure to the
benefit of the respective heirs, successors, executors, administrators and
assigns of the parties hereto and in any case where there is more than one
Tenant, each Tenant shall be jointly and severally liable hereunder.
32. TIME IS OF THE ESSENCE OF THIS LEASE.
33. RIDERS. Riders, if any, attached hereto are made a part of this Lease
by reference and are described as follows: EXHIBIT "A" (legal description of
Property), EXHIBIT "B" (map showing Premises location), EXHIBIT "C" (Landlord
Rules and Regulations), EXHIBIT "D" (Hazardous Substances Warranty) Exhibit "E"
(Tenant Improvements) Exhibit "F" (Commencement Date), Exhibit "G" (Option to
Extend)
IN WITNESS WHEREOF, the parties hereto have executed the above
instrument upon this 1st day of June, 1993.
LANDLORD: TENANT:
XXXXXX ENTERPRISES INCORPORATED /s/ [SIG]
A Washington Corporation ----------------------------
/s/ [SIG] Polymer Technology Int'l
---------------------------- ----------------------------
President
----------------------------
DATE 6-1-93 DATE 5/26/93
----------------------- -----------------------
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STATE OF WASHINGTON )
) ss
County of )
On this 26th day of May, 1993, personally appeared before me Xxxxx X. Xxxxxx, to
me known to be the President of Polymer Technology Int'l the corporation that
executed the within and foregoing 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 they were authorized to execute said instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal,
the day and year first above written.
/s/ XXXXXXX XXXXX
-------------------------------------------------
NOTARY PUBLIC, in and for the State of Washington
Residing at: 00000 Xxxxxxxx Xx. XX Xxxxxxxxxxx 00000
[NOTARY SEAL]
10
STATE OF WASHINGTON )
) ss
County of King )
On this 1st day of June, 1993, personally appeared before me Xxxxxxx X. Xxxxx,
to me known to be the President of Xxxxxx Enterprises, Inc. the corporation that
executed the within and foregoing 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 they were authorized to execute said instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal,
the day and year first above written.
/s/ XXXXX XXXXXXXX
-------------------------------------------------
NOTARY PUBLIC, in and for the State of Washington
Residing at: Issaquah
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AMENDMENT TO LEASE
This Amendment of Lease made this 1st day of November, 1996 affects that
certain Lease Agreement between Xxxxxx Enterprises, Inc., a Washington
Corporation as Landlord and Polymer Technology International Corporation, as
Tenant and which is dated June 1, 1993. Polymer Technology International
Corporation subsequently assigned its interest to Intracel Corporation. Said
Lease Agreement is for that certain office/manufacturing space located at 0000
XX, Xxxxxx Xxxx. Xxxxxxxx, Xxxxxxxxxx 00000.
WHEREAS, the parties hereto agree to certain changes or modifications of said
Lease Agreement.
NOW THEREFORE, LANDLORD AND TENANT AGREE the above-mentioned Lease Agreement
shall be modified or changed as follows:
1. The security deposit per paragraph 4 (Security Deposit) shall be increased
to Forty Nine Thousand Five Hundred ($49,500.00) Dollars.
2. Exhibit "G" (Optional to Extend) is modified as follows:
Landlord grants to Tenant an Option to Extend the term of this Lease for
one additional five-year term. Tenant shall notify the Landlord in writing no
later than ninety (90) days before the end of the initial Lease term, of
Tenants intent to exercise its option to extend the term. Rent shall be
increased at the beginning date of every year of the extended term by the
percent of change in the Consumer Price Index per paragraph 23. (Inflation
Adjustment to Minimum Rent), but with a maximum increase of 5% over the
previous year.
ALL OTHER TERMS AND CONDITIONS OF THE LEASE AGREEMENT DATED, JUNE 1, 1993
BETWEEN THE PARTIES HERETO, SHALL REMAIN IN EFFECT AND CONTINUE FOR THE FULL
EXTENDED TERM HEREIN.
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE SET THEIR HANDS THE DAY AND
YEAR FIRST WRITTEN ABOVE.
LANDLORD: TENANT:
Xxxxxx Enterprises, Inc. Intracel Corporation
By: /s/ [SIG] By: /s/ [SIG]
---------------------- ---------------------
Its: President Its Chief Financial Officer
---------------------- ---------------------
Date: 10-29-96 Date: 10-30-96
---------------------- ---------------------
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STATE OF WASHINGTON )
) ss
County of KING )
On this 29th day of October, 1996, personally appeared before me Xxxxxxx X.
Xxxxx, to me known to be the president of Xxxxxx Enterprises Inc. the
corporation that executed the within and foregoing 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 they were authorized to execute said
instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal,
the day and year first above written.
/s/ XXXXX XXXXXXXX
-------------------------------------------------
NOTARY PUBLIC, in and for the State of Washington
Commission Expires 2/5/98
Print Name Xxxxx XxXxxxxx
Residing at: Issaquah
STATE OF WASHINGTON )
) ss
County of KING )
On this 30th day of October, 1996, personally appeared before me Xxxxxxx X.
Xxxx, to me known to be the CFO of Intracel Corporation the corporation
that executed the within and foregoing 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 they were authorized to execute said instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal,
the day and year first above written.
/s/ XXXXX X. XXXXX
-------------------------------------------------
NOTARY PUBLIC, in and for the State of Washington
Commission Expires 5-29-00
Print Name Xxxxx X. Xxxxx
Residing at: Seattle WA
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ASSIGNMENT OF LEASE
THIS ASSIGNMENT OF LEASE is made this 30 day of October, 1996 by POLYMER
TECHNOLOGY INTERNATIONAL CORPORATION ("Assignor") in favor of INTRACEL
CORPORATION ("Assignee"), with respect to the following:
1. Assignor is Debtor and Debtor in Possession in a Chapter 11
Bankruptcy Case pending in the United States Bankruptcy Court for the Western
District of Washington at Seattle ("Court") in Case No. 95-06304 ("Case"); and
2. Assignor is Tenant under a certain Commercial Lease Agreement dated
June 1, 1993 under which Xxxxxx Enterprises Inc. is Landlord, covering real
property commonly known as 0000 X.X. Xxxxxx Xxxx., in Issaquah, Washington
("Lease") a copy of which is attached hereto as Exhibit A; and
3. On October 23, 1996, the Court entered its Order Authorizing Polymer
to Assume and Reject Leases of Nonresidential Real Property ("Order"), which,
among other things, approves Assignor's assignment to Assignee of the Lease, a
copy of which Order is attached hereto as Exhibit B.
NOW, THEREFORE, for and in consideration of the sum of $100,000 ($50,000
due on October 31, 1997 and $43,700 to Polymer due on execution and $6,300 to
Xxxxxx on execution) and the terms of the Order,
1. Assignor hereby assigns all of its rights, title and interest in the
Lease to Assignee subject to modifications in the terms of the Lease pursuant
to the Order.
2. This assignment by Assignor is without recourse and without
representations or warranties of any kind or nature whatsoever except as
expressly set forth above.
3. Landlord and Assignee agree to amend the Lease Agreement paragraph 4.
"Security Deposit" so that Assignee agrees to pay to the Landlord, upon
execution of this Agreement, the sum of Forty Nine Thousand Five Hundred
($49,500.00) as the security deposit for said Lease Agreement. Upon receipt of
Assignee's payment to the security deposit, Landlord shall release its currently
held security deposit of Fifteen Thousand ($15,000.00) Dollars to Polymer
Technology International Corporation, Assignor.
4. As further consideration of this Assignment of Lease, Landlord and
Assignee agree to amend the Lease Agreement, Exhibit "G" "Option To Extend" so
that the Assignee shall have one five-year option to extend the term of the
Lease.
5. As partial consideration for this Assignment of Lease, the Assignee
shall pay to the Landlord the sum of Six Thousand Three Hundred ($6300.00)
Dollars as Landlord's attorney's fees related to the above-mentioned bankruptcy.
POLYMER TECHNOLOGY INTERNATIONAL CORPORATION
By
---------------------------
Its
--------------------
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CONSENT BY LANDLORD
The undersigned, Landlord under the Lease, hereby consents to the
Assignment of the Lease as amended to Intracel Corporation described herein.
This consent shall apply only to this transaction and shall not be deemed to be
a consent to any other assignment or sublease.
LANDLORD: XXXXXX ENTERPRISES INC.
By [ILLEGIBLE]
-----------------------------
Its President
------------------------
10-29-96
AGREED BY ASSIGNEE
The undersigned, Assignee, hereby agrees to the terms of the order
mentioned above and to the modifications of the Lease as specified therein.
ASSIGNEE: INTRACEL CORPORATION
By [ILLEGIBLE]
-----------------------------
Its Chief Financial Officer
------------------------
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SECOND AMENDMENT TO LEASE
This Amendment of Lease made this 22nd day of June, 1998 affects that
certain Lease Agreement between Xxxxxx Enterprises Inc., a Washington
Corporation as Landlord and Intracel Corporation, a Delaware Corporation as
Tenant; and Dated June 1, 1993. Said Lease was originally between said Landlord
and Polymer Technology International Corporation as Tenant, whose leasehold
interest was assigned to Intracel Corporation October 30, 1996.
WHEREAS, the parties hereto agree to certain changes or modifications of
said Lease Agreement.
NOW THEREFORE, LANDLORD AND TENANT AGREE the above-mentioned Lease
Agreement shall be modified or changed as follows:
1. Landlord and Tenant hereby extend the term of said Lease Agreement for an
additional term beginning at the expiration date of the current Lease term
and ending the thirty first (31st) day of December, 1998.
2. Tenant shall grant access to the Landlord or his representative for the
purpose of showing the Premises to prospective tenants during business
hours.
3. Tenant agrees to surrender the Premises on December 31, 1998, in the same
condition of cleanliness, repair and as presently equipped and will not
remove fixed property without written consent of the Landlord.
4. Rent shall be adjusted to Seventeen Thousand Eight Hundred Eighty
($17880.00) Dollars per month beginning the first day of October, 1998.
ALL OTHER TERMS AND CONDITIONS OF THE ABOVE-MENTIONED LEASE AGREEMENT
BETWEEN THE PARTIES HERETO, SHALL REMAIN IN EFFECT AND CONTINUE FOR THE FULL
EXTENDED TERM HEREIN.
IN WITNESS WHEREOF, THE PARTIES HERETO HAVE SET THEIR HANDS THE DAY AND
YEAR FIRST WRITTEN ABOVE.
LANDLORD: TENANT:
Xxxxxx Enterprises Inc. Intracel Corporation, Inc.
By: [SIG] By: [SIG]
-------------------- --------------------
Its President Its VP, Operations
DATE: June 23, 1998 DATE: June 22, 1998
----------------- -----------------
