LEASE AGREEMENT
THIS
LEASE AGREEMENT is
made
and entered into this 1st
day of
September, 2007 (hereinafter “EFFECTIVE DATE”), by and between Perma-Fix
Northwest Richland, Inc. (hereinafter “LESSOR”), a Washington corporation with
its offices located at 0000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000,
and
IsoRay, Inc. (hereinafter “LESSEE”), a Delaware corporation with its corporate
offices located at 000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxxxxx 00000,
(collectively, the "Parties" and each a "Party").
WHEREAS,
On June
14, 2007, LESSOR purchased and now owns the premises known as 0000 Xxxxxxxx
Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxx; and
WHEREAS,
LESSEE
has leased a portion of said premises from the former owner, Nuvotec
USA,
pursuant to a written lease agreement (hereinafter “PRIOR LEASE”);
and
WHEREAS,
both
Parties have an interest in amending the terms of the prior lease for these
premises;
NOW,
THEREFORE,
in
consideration of the mutual promises hereinafter contained, the parties hereto
agree to terminate the PRIOR LEASE and enter into this new lease agreement
(hereinafter “AGREEMENT”) as follows:
SECTION
1 - PREMISES.
LESSOR
does hereby lease to LESSEE the Waste Storage Bay 3 of the Mixed Waste Building
on the premises commonly known as 0000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxx
00000. Further, LESSEE shall have access to the rest room facilities and
lunchroom located near the Premises, as well as other common areas as
appropriate and necessary.
SECTION
2- TERM.
The term
of this AGREEMENT shall be from the EFFECTIVE DATE through January 31, 2008
(hereinafter, “TERMINATION DATE”), subject to the terms for occupying the
premises beyond the TERMINATION DATE set forth in Section 5.
SECTION
3 - EARLY TERMINATION. LESSOR
acknowledges LESSEE’s desire to vacate the leased premises before the end of the
term.
LESSOR
agrees to allow early termination of this lease provided that LESSEE gives
LESSOR written notice at least forty-five (45) days prior to the date LESSEE
intends to vacate the premises. Forty-five (45) days notice is necessary to
ensure LESSOR adequate time to confirm that the premises have been restored
to
conditions specified in Sections 12, 16, and/or 23 of this
AGREEMENT.
If
LESSEE
makes notification of its intent to terminate the lease early, LESSEE shall
pay
LESSOR the full rent due at the beginning of each month subsequent to said
notification until LESSEE has demonstrated to LESSOR’s satisfaction that the
premises have been restored to conditions specified in Sections 12, 16, and
23
of this AGREEMENT; and LESSOR, in its sole discretion, releases (in writing)
LESSEE from LESSEE’s obligations set forth in these Sections. LESSOR’s written
release shall not be unreasonably withheld. During the month in which LESSOR’s
release is granted, LESSOR will only be required to pay a prorated share of
that
month’s rent. The prorated share of rent due shall be calculated by dividing the
number of calendar days (including the release date) that have passed in the
subject month by that month’s total calendar days; and multiplying the resulting
fraction by the affected month’s rent.
SECTION
4 - RENT.
LESSEE
covenants and agrees to pay LESSOR five thousand dollars ($5,000) per month
during the term of this AGREEMENT. If the rent is not paid by the 10th day
of
each month, then LESSOR shall be entitled to collect and LESSEE shall pay a
late
charge of ten percent (10%) of the five thousand dollar ($5,000) monthly rent.
LESSEE shall pay the first month’s rent due under this AGREEMENT on or before
September 10, 2007. Payments are to be made to the LESSOR at its offices located
at 0000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, Attention: Accounts
Receivable.
SECTION
5 - OCCUPANCY OF PREMISES BEYOND THE TERMINATION DATE. Should
the LESSEE continue to occupy the premises after the Termination Date (which
is
January 31, 2008), such tenancy shall be from month to month, and the LESSEE
covenants and agrees to pay LESSOR fifty thousand dollars ($50,000) per month
until LESSEE has vacated the premises and
obtained
LESSOR’S written release from LESSEE’s obligations set forth in Sections 12, 16,
and 23 of this AGREEMENT. If the rent is not paid by the 10th day of each month
following the TERMINATION DATE, then LESSOR shall be entitled to collect and
LESSEE shall pay a late charge of ten percent (10%) of the fifty thousand dollar
($50,000) monthly rent. Payments are to be made to the LESSOR at its offices
located at 0000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, Attention:
Accounts Receivable. The provisions of this section shall not apply if the
holdover by LESSEE is caused by acts of God or unforeseen delays or acts by
a
third party over which the LESSEE has no control.
SECTION
6 - OCCUPANCY OF PREMISES BEYOND FEBRUARY 1, 2008.
If
LESSEE has not vacated the premises and
obtained
LESSOR’s written release from LESSEE’s obligations set forth in Sections 12, 16,
and 23 of this AGREEMENT by February 1, 2008, then LESSEE covenants and agrees
to pay LESSOR one-hundred thousand dollars ($100,000) to continue the AGREEMENT
on a month to month basis under the terms set forth in Section 5. The Payments
are to be made to the LESSOR at its offices located at 0000 Xxxxxxxx Xxxxxxxxx,
Xxxxxxxx, Xxxxxxxxxx 00000, Attention: Accounts Receivable. The provisions
of
this section shall not apply if the holdover by LESSEE is caused by acts of
God
or unforeseen delays or acts by a third party over which the LESSEE has no
control.
SECTION
7 - TERMINATION & VACATION REQUIRMENTS.
This
Agreement may be terminated:
(1)
At
any time upon written agreement of both parties; or
(2)
Upon
expiration of the AGREEMENT’s term and LESSOR’s written release of LESSEE from
LESSEE’s obligations set forth in Sections 12, 16, and 23.
Upon
termination of the AGREEMENT, LESSEE shall surrender to LESSOR all keys fitting
all locks located on the Premises that are in the possession of
LESSEE.
SECTION
8 - ACCEPTANCE OF PREMISES.LESSEE
accepts the Premises “as-is”. There are no expectations for facility
modifications necessary to accommodate LESSEE but if the situation arises,
LESSEE must obtain LESSOR’s written approval for such modifications and the
responsibility for the cost shall be borne by LESSEE.
SECTION
9 - PERMITTING.
LESSEE
shall be responsible for obtaining and maintaining any and all permits, which
are specific to LESSEE’s operations on the leased premises.
SECTION
10 - RELATIONSHIP OF THE PARTIES.
Nothing
contained in this AGREEMENT shall, by express grant, implication, estoppel,
or
otherwise, create in either party any right, title, interest, or license in
or
to the inventions, patents, technical data, computer software, or software
documentation of the other party. This Agreement is not intended by the parties
to constitute or create a joint venture, pooling arrangement, partnership,
or
formal business organization of any kind, other than a landlord-tenant
relationship, and the rights and obligations of the parties shall be only those
expressly set forth herein. Neither party shall have authority to bind the
other
except to the extent authorized herein. Nothing in this Agreement shall be
construed as providing for the sharing of profits or losses arising out of
the
efforts of either or both parties
SECTION
11 - OPERATING COSTS AND EXPENSES. LESSOR
is
responsible for real estate taxes, building insurance, and building maintenance,
without any additional charge to the LESSEE. LESSEE is responsible for providing
their own office and operating equipment and administrative
personnel.
SECTION
12 - CONTAMINATION.
Notwithstanding any other provision of this AGREEMENT, in the event that the
activities of LESSEE contaminate the leased premises and/or any of the premises
commonly known as 0000 Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxxx, LESSEE shall
be
solely responsible for the cost of restoring the contaminated areas to the
same
condition as existed at the inception of the PRIOR LEASE with Nuvotec
USA
(hereinafter “BASELINE CONDITION”). LESSEE agrees to clean up any known
contaminates at the time the contamination occurs and to immediately notify
LESSOR of the situation. The BASELINE CONDITION of the premises was established
by Nuvotec USA
at
inception of the PRIOR LEASE (see attached baseline survey). The sufficiency
of
restoration work conducted by or on behalf of LESSEE in order to return the
premises to the BASELINE CONDITION shall be determined solely by LESSOR’s
evaluation and approval of restoration work. LESSOR’s approval of restoration
work shall not be unreasonably withheld.
SECTION
13 - TECHNICAL SUPPORT. Under
this AGREEMEMT LESSOR may, from time to time, provide certain technical support
staff to the LESSEE. Time for said staff will be billed in accordance with
the
rates set forth in Exhibit A.
SECTION
14 - UTILITIES.
LESSOR
shall pay all charges for water, sewage disposal, and gas or other fuel utilized
in connection with normal and customary general occupancy of the premises
without any additional charge to LESSEE. LESSEE shall pay all charges for
telephone, internet, LAN, and other charges specific to the use of the premises
by LESSEE. Additionally, LESSEE shall be responsible for establishing their
own
mail service - both pick-up and drop-off - as this function will not be provided
by the LESSOR. Further, LESSEE shall be responsible for all electricity charges
consumed by the LESSEE’s operations.
SECTION
15 - JANITORIAL SERVICES. LESSEE
shall be responsible for and provide janitorial services and supplies to support
its occupancy.
SECTION
16 - MAINTENANCE.
The
LESSEE will at all times keep the premises neat, clean, and sanitary. LESSEE
shall take all reasonable measures to maintain the premises in a condition
that
is at least as well maintained as it was at the time of initial occupancy under
the PRIOR LEASE, accounting for normal wear and tear.
SECTION
17 - TAXES. The
Parties acknowledge that LESSOR shall pay and hold LESSEE harmless for all
state, federal, and local taxes and assessments against the Premises or
leasehold improvements thereto.
SECTION
18 - INSURANCE.LESSEE
shall, at its cost and expense, procure and maintain during the term of this
AGREEMENT the following insurance coverage:
(1) |
Comprehensive
general public liability insurance insuring against the risks of
bodily
injury, property damage, and personal injury liability occurring
on the
Premises or arising out of LESSEE's negligent use or occupancy of
the
Premises, with a combined single limit of liability of at least
$1,000,000.
|
(2) |
Fire
and extended coverage insurance, insuring LESSEE's personal property
in or
on the Premises for one hundred percent (100%) of its full insurable
and
replacement cost, without deduction for
depreciation.
|
(a) |
LESSEE's
policy of liability insurance shall list LESSOR as additional insured
and
shall also contain an endorsement that although LESSOR is listed
as
additional insured, LESSOR shall not be entitled to recover under
the
policy for any loss or damage occasioned to it or its agents or employees
except by reason of LESSEE's negligence. Any insurance policy LESSEE
is
required to procure and maintain under this AGREEMENT shall be issued
by a
responsible insurance company or companies licensed to do business
in the
State of Washington. Further, each such policy shall provide that
it may
not be canceled, terminated, or changed except after thirty (30)
days
prior written notice to LESSOR.
|
(b) |
LESSOR
and LESSEE each waives any claim it might have against the other
for
personal injury or death or for damage to or theft, destruction,
loss, or
loss of use of any property, to the extent the same is insured against
under any insurance policy that covers the Building, LESSOR’s or LESSEE’s
fixtures, personal property, leasehold improvements, or business,
or is
required to be insured against under the terms hereof, and each party
shall cause its insurance carrier to endorse all applicable policies
waiving the carrier's rights of recovery under subrogation or otherwise
against the other party.
|
(3) |
In
the event that it is determined that to be in compliance with state
regulatory requirements additional insurance coverage is necessary,
the
parties agree to work together to obtain
such.
|
SECTION
19 - SUCCESSORS IN INTEREST. This
AGREEMENT shall be binding upon and inure to the benefit of the heirs,
successors, assigns, and transferees of the parties hereto. This AGREEMENT
shall
not be assignable in whole or in part without the prior written approval of
the
LESSOR.
SECTION
20 - ACCESS TO PREMISES.
LESSEE
shall allow LESSOR access at all reasonable times to the leased premises for
the
purpose of inspection and repairs.
SECTION
21 - DEFAULT BY LESSOR.
Should
LESSOR fail to perform any of the terms and conditions required herein, LESSEE
may declare LESSOR to be in default upon thirty (30) days written notice. Upon
default, LESSEE may terminate this AGREEMENT (without liability to pay any
amount for such termination) and/or pursue any and all remedies available to
it
under Washington law. Provided, however, that if such failure to observe or
perform is remediable but is of such nature that it cannot be remedied within
such thirty (30) day period, then for such longer period as may be reasonably
required, so long as LESSOR promptly commences and diligently pursues such
remedy to completion.
SECTION
22 - DEFAULT BY LESSEE. Should
LESSEE fail to perform any of the terms and conditions required herein, LESSOR
may declare LESSEE to be in default upon thirty (30) days written notice. Upon
default, LESSOR may terminate this AGREEMENT (without liability to pay any
amount for such termination) and/or pursue any and all remedies available to
it
under Washington law. Provided, however, that if such failure to observe or
perform is remediable but is of such nature that it cannot be remedied within
such thirty (30) day period, then for such longer period as may be reasonably
required, so long as LESSEE promptly commences and diligently pursues such
remedy to completion.
The
occurrence of any one or more of the following events shall constitute a
material default in breach of this AGREEMENT by LESSEE: 1) failure by LESSEE
to
make any payment of rent or other sum required herein as and when due; 2)
failure by LESSEE to sign this AGREEMENT; and/or, 3) failure by LESSEE to
materially observe or perform any of the covenants, conditions, or provisions
of
this AGREEMENT. In such event, the LESSEE will be liable to LESSOR for the
balance of unpaid rent and all costs incurred by LESSOR to restore the leased
premises to the BASELINE CONDITION.
SECTION
23 - ALTERATIONS/IMPROVEMENTS. LESSEE
shall not make any alterations or improvements in, on, or about the premises
without the prior written consent of LESSOR, which shall not be unreasonably
withheld. Upon the expiration or termination of this AGREEMENT, the LESSEE
acknowledges that any alterations and/or improvements to the property which
have
been installed by the LESSEE and approved by the LESSOR may or may not be left
with the Premises. LESSOR may require the LESSEE to remove any alterations
and/or improvements which were made with or without the LESSOR’S approval (or
LESSOR’S approval under the PRIOR LEASE) and restore the premises to their
original condition as of the beginning date of the PRIOR LEASE as determined
solely by LESSOR’s independent engineer.
The
LESSEE process and process support equipment shall not be considered Alterations
or Improvements and shall be removed by the LESSEE upon termination of this
AGREEMENT. This equipment includes, but is not limited to:
· |
Hot
cells;
|
· |
Glove
boxes;
|
· |
Analytical
equipment;
|
· |
Radiation
monitoring equipment;
|
· |
Computers
and peripheral equipment; and,
|
· |
Ancillary
and support equipment related to the
above.
|
The
following Alterations and Improvements shall be removed as directed by LESSOR
upon or prior to termination of this AGREEMENT: HVAC, electrical modifications
(including lighting), walls, cabinetry, exterior concrete pad, fencing/gates,
and signage.
SECTION
24 - SIGNAGE. LESSOR
hereby consents to LESSEE posting one sign on the exterior of the main entrance
to the building (fenceline) and one sign at or near the roadway at the main
road
entrance as approved per the City of Richland. All signs shall be subject to
the
prior review and approval of the LESSOR.
SECTION
25 - PARKING. LESSOR
shall provide spaces for automobile parking.
SECTION
26 - COMMON AREAS. Common
areas are defined to include the following interior and exterior areas:
hallways, restrooms, emergency exits, parking areas and the entrances and exits
thereof, driveways, sidewalks, lunch rooms, rest rooms/locker rooms on the
east
side of main building (Building 17), and other areas and facilities provided
for
general use.
LESSOR
shall arrange for all required maintenance of both interior and exterior common
areas including gardening and landscaping, janitorial, repair of common area
facilities, line painting, lighting lamp replacement, sanitary control, removal
of snow, trash rubbish and other refuse, policing, traffic and other
regulations.
SECTION
27 - HAZARDOUS MATERIALS.
LESSEE
shall not take or store upon the premises any pollutants, contaminants,
hazardous, or toxic materials as defined by the law of the State of Washington
or by federal law, except in strict compliance with all applicable local, state
or federal rules, regulations, ordinances, and statutes.
SECTION
28 - NOTICES.
All
notices, certificates, acknowledgments, and other reports hereunder shall be
in
writing and shall be deemed properly delivered when duly mailed by registered
letter to the other party at its address as follows, or to such other address
as
either party may, by written notice, designate to the other.
Perma-Fix
Northwest Richland, Inc.
|
|||
0000
Xxxxxxxx Xxxxxxxxx
|
000
Xxxxx Xxxxxx, Xxxxx 000
|
||
Xxxxxxxx,
Xxxxxxxxxx 00000
|
Xxxxxxxx,
XX 00000
|
||
Attn:
Xxxxxxx Xxxxxxx
|
Attn:
Xxxxx X. Xxxxxxxx
|
||
Phone:
(000) 000-0000
|
Phone:
(000) 000-0000
|
||
Fax:
|
Fax:
(000) 000-0000
|
SECTION
29 - CHANGES TO TERMS.
This
AGREEMENT shall not be amended, modified, or extended, nor shall any waiver
of
any right hereunder be effective unless set forth in a document executed by
duly
authorized representatives of both the parties. The waiver of any breach of
any
term, covenant, or condition herein contained shall not be deemed to be a waiver
of such term, covenant, or condition for any subsequent breach of the
same.
SECTION
30 - NON-WAIVER.
The
failure of the LESSOR to insist, in any one or more instances, upon strict
performance of any of the covenants, agreements, or obligations of the Lessee
hereunder, or to exercise any option herein contained, shall not be construed
as
a waiver, or a relinquishment for the future of such covenant of option, but
the
same shall continue and remain in full force and effect. The receipt by the
LESSOR of rent, with knowledge of the breach of any covenant, agreement or
obligation hereof shall be not deemed to be a waiver of any such breach to
have
been made unless expressed in writing and signed by the LESSOR
SECTION
31 - TIME OF ESSENCE.
In all
instances where LESSOR or LESSEE is required hereunder to pay any sum or do
any
act at a particular indicated time or within an indicated period, it is
understood and stipulated that time is of the essence.
Lease
Agreement IsoRay - September 1, 2007
|
Page 7
of
8
|
SECTION
32 - INTEGRATON.
This
AGREEMENT contains all of the agreements, representations, and understandings
of
the parties hereto and supersedes and replaces any and all previous
understandings, commitments, or agreements, oral or written, related to this
AGREEMENT set forth herein.
SECTION
33 - SEVERABILITY.
If any
part, term, or provision of this AGREEMENT shall be held void, illegal,
unenforceable, or in conflict with any law of a federal, state, or local
government having jurisdiction over this AGREEMENT, the validity of the
remaining portions of provisions shall not be affected thereby.
SECTION
34 - JURISDICTION.
This
AGREEMENT shall be enforced and interpreted under the laws of the State of
Washington.
SECTION
35 - PREVAILING PARTY. In
the
event that either party hereto brings an action at law or in equity for the
enforcement of any provision of this AGREEMENT, the prevailing party shall
be
entitled to recover all costs and expenses including reasonable attorney's
fees
incurred both at trial and on appeal.
IN
WITNESS WHEREOF,
the
parties hereto have executed this AGREEMENT on the date first stated
above.
PERMA-FIX NORTHWEST, INC. | ISORAY, INC. | |||
By:
|
/s/ Xxxxxxx Xxxxxxx for |
By:
|
/s/ Xxxxxxxx X. Xxxx | |
Name:
Xxx Xxxxxxxx, CPA
Title: Business Manager |
Name:
Xxxxxxxx X. Xxxx
Title: Chief Financial Officer |
|||
Date: 10/10/2007 | Date: 10/10/2007 |
Lease
Agreement IsoRay - September 1, 2007
|
Page
8 of
8
|