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Exhibit
10.10
LEASE
AGREEMENT
T HIS L
EASE A GREEMENT (the
“Lease”) is entered into this 16 th
day of March,
2004, between American Life Inc., and Vincent DeLuca, Tenants in
Common (“Landlord”), and John Plaza,
(“Tenant”). Landlord and Tenant agree as
follows:
1. LEASE SUMMARY AND
EXHIBITS.
1.1. L
EASED P REMISES . The leased
premises (“Premises”) consist of an agreed area of
7,041 square feet of warehouse/office space, and plus common areas
and are outlined on the floor plan attached as E
XHIBIT A, located on the land legally described
on attached E XHIBIT B , and is commonly
known as 6335 1St – Avenue South, Seattle, Washington. The
Premises do not include, and Landlord reserves, the exterior walls
and roof of the Premises, the land beneath the Premises or
structural elements of the building in which the Premises are
located (“Building”). The Building, the land upon which
it is situated, all other improvements located on such land, and
all common areas appurtenant to the Building are referred to herein
as the “Property.”
1.2. L EASE
C OMMENCEMENT D ATE . The Lease
shall commence on May 15, 2004
1.3. L EASE
T ERMINATION D ATE . The Lease
shall terminate at midnight on May 31, 2008, or such earlier
or later date as provided in Section 3 (the “Termination
Date”).
1.4. B ASE
R ENT . The base monthly rent shall he as
follows:
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Months
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Monthly Base Rent |
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1-12
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$ |
3000 |
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13-24
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$ |
3260 |
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25-36
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$ |
3520 |
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37-48
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$ |
3625 |
Rent shall be payable at
Landlord’s address shown in Section 1.8 below, or such
other place designated in all urban consumers Seattle area writing
by Landlord.
1.5. P
REPAID R ENT . Upon execution of
this Lease, Tenant shall deliver to Landlord one months
rent.
1.6. S
ECURITY D EPOSIT . The amount of
the security deposit is $4000.
1.7. P
ERMITTED U SES . The Premises
shall be used only for the refining of vegetable oil into biodiesel
fuel and for not other purpose without the prior written consent of
Landlord.
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1.8. N
OTICE AND P AYMENT A
DDRESSES .
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| Landlord: |
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American Life, Inc.
3223 Third Avenue S.
Seattle, WA 98134
Fax: 206-381-3376 tel 3375
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| Tenant: |
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Seattle Biodiesel
4130 S.W. Monroe St.
Seattle, WA 98136
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1.9. T
ENANT ’ S P RO R
ATA S HARE . Landlord and Tenant
agree that except for separately metered or allocated expenses
Tenant’s Pro Rata Share is 12.23% for purposes of calculating
utilities such as water, gas, and electricity and other services
supplied only to the 57,540 square feet outlined on Exhibit C based
on the ratio of the agreed rentable area of the Premises (i.e.,
7,041 square feet) to the agreed rentable area of the Building
(i.e., 57,540 square feet) and all other buildings on the Property
as of the date of this Lease. Common area ratios will change as new
square footage is added.
1.10. E
XHIBITS .
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E XHIBIT
A
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Floor
Plan |
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E XHIBIT
B
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Legal
Description of Land |
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E XHIBIT
C
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Floor
Plan for Tenants Area |
2. PREMISES. Landlord
leases to Tenant, and Tenant leases from Landlord the Premises
“as is” and upon the terms specified in this
Lease.
3. TERM.
3.1. C
OMMENCEMENT D ATE . The Lease
shall commence on the date specified in Section 1.2. The first
“Lease Year” shall commence on the Commencement Date
and shall end on the date which is twelve (12) months from the
end of the month in which the Commencement Date occurs. Each
successive Lease Year during the initial term and any extension
terms shall be twelve (12) months, commencing on the first day
following the end of the preceding Lease Year, except that the last
Lease Year shall end on the Termination Date.
3.2. C
ONDITION OF P REMISES
. Except as specified elsewhere in this Lease. Landlord makes
no representations or warranties to Tenant regarding the Premises,
including the structural condition of the Premises or the condition
of mechanical, electrical, and other systems on the Premises. By
signing this Lease, Tenant acknowledges that it has had adequate
opportunity to investigate the Premises, acknowledges
responsibility for making any corrections, alterations and repairs
to the Premises, and acknowledges that the time needed to complete
any such items shall not
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delay the Commencement Date. Landlord
shall fix the fence surrounding the property and perimeter doors,
and install electrical meter if possible.
3.3. OPTION TO RENEW.
If Tenant complies with the terms and conditions of this Lease may
extend this Lease for an additional five year term on the same
terms and conditions except that the base rent for the first year
of the option period shall be adjusted to market rent for similar
properties in the area but not less than the base rent for the
fifth year of this Lease term. Tenant must give Landlord one
hundred and twenty days written notice of its intent to renew to
preserve this Option to Renew. Landlord and Tenant must agree to
the new base rent within thirty days of receipt of Tenants renewal
notice. If Landlord and Tenant are unable to agree on a new base
rent the Lease shall not be extended.
4. RENT. Tenant shall
pay Landlord without demand, deduction or offset, in lawful money
of the United States, the monthly rental stated in Section 1.4 in
advance on or before the first day of each month during the Lease
Term, and any other additional payments due to Landlord
(collectively the “Rent”) when required under this
Lease. Payments for any partial month at the beginning or end of
the Lease term shall be prorated.
If any sums payable by Tenant
to Landlord under this Lease are not received by the tenth
(10th) day of each month, Tenant shall pay Landlord the cost
of collecting and handling such late payment. In addition, all
delinquent sums payable by Tenant to Landlord, and not paid within
ten (10) days of the Due date shall, at Landlord’s
option, bear interest at the rate of twelve percent (12%) per
annum, or the highest rate of interest allowable by law, whichever
is less. Interest on all delinquent amounts shall be calculated
from the original due date to the date of payment.
Landlord’s acceptance
of less than the full amount of any payment due from Tenant shall
not be deemed an accord and satisfaction or compromise of such
payment unless Landlord specifically consents in writing to payment
of such lesser sum as an accord and satisfaction, or compromise of
the amount which Landlord claims.
5. SECURITY DEPOSIT.
Tenant will pay a security deposit of $4,000.00 upon execution of
this lease.
6. USES. The Premises
shall be used only for the uses specified in Section 1.7 above (the
“Permitted Uses”), and for no other business or purpose
without the prior written consent of Landlord. No act shall be done
on or around the Premises that is unlawful or that will increase
the existing rate of insurance on the Premises. Tenant shall not
commit or allow to be committed any waste upon the Premises, or any
public or private nuisance.
7. COMPLIANCE WITH
LAWS. Tenant shall not cause or permit the Premises to be used
in any way which violates any law, ordinance, or governmental
regulation or order. Tenant shall be responsible for complying with
all laws applicable to
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the Premises solely as a result of
Tenant’s particular use, such as modifications required by
the Americans With Disabilities Act as a result of Tenant opening
the Premises to the public as a place of public accommodation. If
the enactment or enforcement of any law, ordinance, regulation or
code during the Lease Term requires an changes to the Premises
during the Lease Term, Tenant shall perform all such changes at its
expense if the changes are required due to the nature of
Tenant’s activities at the Premises, or to alterations that
Tenant seeks to make to the Premises; otherwise, Landlord shall
perform all such changes at its expense.
8. OPERATING
COSTS.
8.1. D
EFINITION . As used herein, “Operating
Costs” shall mean all costs of operating, maintaining and
repairing the Premises, the Building, and the Property, determined
in accordance with accounting principles consistently applied, and
including without limitation the following: all taxes and
assessments (including, but not limited to, real and personal
property taxes and assessments, local improvement district
assessments and other special purpose assessments, and taxes on
rent or gross receipts); insurance premiums paid by Landlord and
(to the extent used) deductibles; water, sewer and all other
utility charges (other than utilities separately metered and paid
directly by Tenant or other tenants); refuse and trash removal;
refurbishing and repainting; air conditioning, heating, ventilation
and elevator service; pest control; lighting systems, fire
detection and security services; landscape maintenance; parking
lot, road, sidewalk and driveway patching, resurfacing and
maintenance; snow and ice removal; graffiti removal, window repair
and replacement, amortization (in accordance with accounting
principles consistently applied) of capital improvements as
Landlord may in the future install to comply with governmental
regulations and rules or undertaken in good faith with a reasonable
expectation of reducing operating costs (the useful life of which
shall be a reasonable period of time as determined by Landlord);
and costs of legal services (except those incurred directly
relating to a particular .occupant of the Building); accounting
services; property management fee not to exceed 4-— % of base
rent; labor, supplies, materials and tools. Operating Costs shall
not include: Landlord’s income tax or general corporate
overhead, depreciation on the Building or equipment therein; loan
payments; real estate broker’s commissions; capital
improvements to or major repairs of the Building shell (i.e., the
Building structure, exterior walls and roof) not described in this
paragraph; or any costs regarding the operation, maintenance and
repair of the Premises, the Building, or the Property paid directly
by Tenant or other tenants in the Building.
8.2. A
DDITIONAL R ENT . As additional
Rent, Tenant shall pay to Landlord on the first of each month with
payment of Tenant’s base Rent one-twelfth of Tenant’s
Pro Rata Share of Operating Costs.
8.2.1. Landlord
shall provide to Tenant, as soon as possible following the first
day of each succeeding calendar year, a good faith estimate of
Tenant’s annual Pro Rata Share of Operating Costs for the
then-current year;
8.2.2. Each
estimate of Tenant’s annual Pro Rata Share of Operating Costs
determined by Landlord as described above, shall be divided into
twelve
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(12) equal monthly installments.
Tenant shall pay to Landlord such monthly installment of Operating
Costs with each monthly payment of base Rent. In the event the
estimated amount of Tenant’s Pro Rata Share of Operating
Costs has not yet been determined for any calendar year, Tenant
shall pay the monthly installment in the estimated amount
determined for the preceding calendar year until the estimate for
the current calendar year has been provided to Tenant. At such time
as the estimate for the current calendar year is received, Tenant
shall then pay any shortfall or receive a credit for any surplus
for the preceding months of the current calendar year and shall,
thereafter, make the monthly installment payment in accordance with
the current estimate; and
8.2.3. As soon
as reasonably possible following the end of each calendar year of
the Lease term, Landlord shall determine and provide to Tenant a
statement (the “Operating Costs Statement”) setting
forth the amount of Operating Costs actually incurred and the
amount of Tenant’s Pro Rata Share of Operating Costs actually
payable by Tenant with respect to such calendar year. In the event
the amount of Tenant’s Pro Rata Share of Operating Costs
exceeds the sum of the monthly installments actually paid by Tenant
for such calendar year, Tenant shall pay to Landlord the difference
within thirty (30) days following receipt of the Operating
Costs Statement. In the event the sum of such installments exceeds
the amount of Tenant’s Pro Rata Share of Operating Costs
actually clue and owing, the difference shall be applied as a
credit to Tenant’s future Pro Rata Share of Operating Costs
payable by Tenant pursuant to this Section,
9. UTILITIES. Landlord
shall not be responsible for providing any utilities to the
Premises, but represents and warrants to Tenant that as of the
Commencement Date that electricity, water, sewer and telephone
utilities are available at or adjacent to the Premises. Tenant
shall determine whether the available capacity of such utilities
will meet Tenant’s needs. Tenant shall install and connect,
if necessary, and directly pay for all water, sewer, gas,
janitorial, electricity, garbage removal, heat, telephone, and
other utilities and services used by Tenant on the Premises during
the Term, whether or not such services are billed directly to
Tenant. Tenant will also procure, or cause to be procured, without
cost to Landlord, all necessary permits, licenses or other
authorizations required for the lawful and proper installation,
maintenance, replacement, and removal on or from the Premises of
wires, pipes, conduits, tubes, and other equipment and appliances
for use in supplying all utilities or services to the Premises.
Landlord, upon request of Tenant, and at the sole expense and
liability of Tenant, shall join with Tenant in any application
required for obtaining or continuing such utilities or
services.
10. TAXES. Tenant
shall pay all taxes, assessments, liens and license fees
(“Taxes”) levied, assessed or imposed by any authority
having the direct or indirect power to tax or assess any such
liens, by reason of Tenant’s occupancy of the Premises, and
all Taxes on Tenant’s personal property located on the
Premises. Landlord shall pay all Taxes with respect to the Building
and the Project, including any Taxes requiting from a reassessment
of the Building or the Project due to a change of ownership or
otherwise, which shall be included in Operating Costs.
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11. ALTERATIONS.
Tenant may make alterations, additions or improvements to the
Premises (“Alterations”) with the prior written consent
of Landlord, which consent shall not be unreasonably withheld. The
term “Alterations” shall not include the installation
of shelves, partitions, Tenant’s equipment and trade fixtures
which may be performed without damaging existing improvements or
the structural integrity of the Premises, and Landlord’s
consent shall not be required for Tenant’s installation of
those items. Tenant shall complete all Alterations at
Tenant’s expense in compliance with all applicable laws and
in accordance with plans and specifications approved by Landlord.
Landlord shall he deemed the owner of all Alterations except for
those which Landlord requires to be removed at the end of the Lease
term. Tenant shall remove all Alterations at the end of the Lease
term unless Landlord conditioned its consent upon Tenant leaving a
specified Alteration at the Premises, in which case Tenant shall
not remove such Alteration. Tenant shall immediately repair any
damage to the Premises caused by removal of Alterations.
12. REPAIRS AND
MAINTENANCE. Tenant shall, at its sole expense, maintain the
Premises in good condition and promptly make all repairs and
replacements, whether structural or non-structural, necessary to
keep the Premises in safe operating condition, including all
utilities, bathrooms and other systems serving the Premises, and
glass and window damage, but excluding the roof, foundation and
exterior walls, which Landlord shall maintain in good condition and
repair at Landlord’s expense. Tenant shall not disturb the
structural integrity of the Premises and shall promptly repair any
damage or injury done to the structural elements caused by Tenant
or its employees, agents, contractors or invitees. Notwithstanding
anything in this Section to the contrary, Tenant shall not be
responsible for any repairs to the Premises made necessary by the
acts of Landlord or its agents, employees, contractors or invitees
therein.
Upon expiration of the Lease
term whether by lapse of time or otherwise. Tenant shall promptly
and peacefully surrender the Premises, together with all keys, to
Landlord in as good condition as when received by Tenant from
Landlord or as thereafter improved, reasonable wear and tear and
insured casualty excepted.
13. ACCESS. After
reasonable notice from Landlord (except in cases of emergency,
where no notice is required) Tenant shall permit Landlord and its
agents and employees to enter the Premises at reasonable times for
the purposes of repair or inspection. This Section shall not impose
any repair or other obligation upon Landlord not expressly stated
elsewhere in this Lease. After reasonable notice to Tenant,
Landlord shall have the right to enter the Premises for the purpose
of showing the Premises to prospective purchasers or lenders at any
time, and to prospective tenants within one hundred eighty (180)
days prior to the expiration or sooner termination of the Lease
term.
14. SIGNAGE. Tenant
shall obtain Landlord’s written consent before installing any
signs upon the Premises, which consent shall not be unreasonably
withheld. Tenant shall install any approved signage at
Tenant’s sole expense and in compliance with all applicable
laws. Tenant shall not damage or deface the Premises in installing
or removing signage and shall repair any injury or damage to the
Premises caused by such installation or removal.
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15. DESTRUCTION OR
CONDEMNATION.
15.1. D
AMAGE AND R EPAIR
. If the Premises are partially damaged but not rendered
untenantable, by fire or other insured casualty, then Landlord
shall diligently restore the Premises and this Lease shall not
terminate. The Premises shall not be deemed untenantable if less
than twenty-five percent (25%) of the Premises are damaged.
Landlord shall have no obligation to restore the Premises if
insurance proceeds arc not available to pay the entire cost of such
restoration. If insurance proceeds are available to Landlord but
are not sufficient to pay the entire cost of restoring the
Premises, then Landlord may elect to terminate this Lease and keep
the insurance proceeds, by notifying Tenant within sixty
(60) days of the date of such casualty.
If the Premises are entirely
destroyed, or partially damaged and rendered untenantable, by fire
or other casualty, Landlord may, at its option: (a) terminate
this Lease as provided herein, or (b) restore the Premises to
their previous condition. If, within sixty (60) days after
receipt by Landlord from Tenant of written notice that Tenant deems
the Premises untenantable, Landlord fails to notify Tenant of its
election to restore the Premises, or if Landlord is unable to
restore the Premises within nine (9) months of the date of the
casualty event, then Tenant may elect to terminate the
Lease.
If Landlord restores the
Premises under this Section 15.1, Landlord shall proceed with
reasonable diligence to complete the work, and the base monthly
rent shall be abated in the same proportion as the untenantable
portion of the Premises bears to the whole Premises, provided that
there shall be a rent abatement only if the damage or destruction
of the Premises did not result from, or was not contributed to
directly or indirectly by the act, fault or neglect of Tenant, or
Tenant’s officers, contractors, licensees, agents, servants,
employees, guests, invitees or visitors. No damages, compensation
or claim shall be payable by Landlord for inconvenience, loss of
business or annoyance directly incidentally or consequentially
arising from any repair or restoration of any portion of the
Premises. Landlord will not carry insurance of any kind for the
protection of Tenant or on Tenant’s furniture or on any
fixtures, equipment, improvements or appurtenances of Tenant under
this Lease, and Landlord shall not be obligated to repair any
damage thereto or replace the same unless the damage is caused by
Landlord’s negligence.
15.2. C
ONDEMNATION . If the Premises are made
untenantable by eminent domain or conveyed under a threat of
condemnation, this Lease shall automatically terminate as of the
earlier of the date title vests in the condemning authority or the
condemning authority first has possession of the Premises and all
Rents and other payments shall be paid to that date. In case of
taking of a part of the Premises that does not render the Premises
untenantable, then this Lease shall continue in full force and
effect and the base monthly rental shall be equitably reduced based
on the proportion by which the floor area of the Premises is
reduced, such reduction in Rent to be effective as of the earlier
of the date the condemning authority first has possession of such
portion or title vests in the condemning authority. Landlord shall
be entitled to the entire award from the condemning authority
attributable to the value of the Premises and Tenant shall make no
claim for the value of its leasehold. Tenant shall be permitted to
make a separate claim against the condemning authority for moving
expenses or damages
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resulting from interruption in its
business, provided that in no event shall Tenant’s claim
reduce Landlord’s award.
16.
INSURANCE.
16.1. L
IABILITY I NSURANCE . During the
Lease term, Tenant shall pay for and maintain commercial general
liability insurance with broad form property damage and contractual
liability endorsements. This policy shall name Landlord as an
additional insured, and sha
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