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HomeMy WebLinkAboutCAG2001-0488 - Original - Borden Chemical, Inc. - 421-608 1st Ave N, Kent Property Lease - 02/09/2001 LEASE THIS LEASE is made and entered into this _J__ day of February, 2001, by and between the CITY OF KENT, a Washington municipal corporation, ("Landlord") and BORDEN CHEMICAL, INC., a Delaware corporation ("Tenant"). RECITALS WHEREAS, Tenant has heretofore owned, occupied and operated all or a portion of the Premises (as defined below) and is in all respects knowledgeable and familiar with all relevant matters affecting the condition, use and operation of the Premises, including the desirability and suitability of the Premises for the continued use and operation thereof by Tenant throughout the terms of this Lease; and WHEREAS, pursuant to the Real Property Purchase and Sale Agreement dated February 2001 (the "Purchase Agreement"), Tenant sold certain real property described therein, including the Premises, to Landlord and Landlord agreed to lease Tenant the Premises on the terms and conditions set forth in Article IX thereof; and WHEREAS, Landlord desires to lease the Premises to Tenant, and Tenant desires to hire the Premises from Landlord, in accordance with the terms and conditions of this Lease. NOW, THEREFORE, the parties agree as follows: 1. PREMISES 1.1 Lease to Tenant. In consideration of the rents to be paid and the covenants and agreements hereinafter provided which Tenant hereby agrees to keep and perform, Landlord hereby leases to Tenant and Tenant hereby hires from Landlord those certain premises ("Premises") together with appurtenances, situated in the City of Kent, King County, Washington, commonly known as manufacturing facility located at 421-608 1st Avenue North, Kent, Washington and more particularly described on Exhibit A-1 attached hereto and by this reference incorporated herein and outlined on the map attached hereto as Exhibit A-2. The Premises shall be completely fenced so as to prevent unauthorized access to the Premises either from the remaining real property acquired by Landlord from Tenant pursuant to the Purchase Agreement or from the public streets adjoining the Premises. 1.2 Title and Condition of Premises. The Premises are leased to Tenant in their present condition and state of repair without representation or warranty of any kind by Landlord express or implied, and subject to (i)the existing condition of title, (ii) all applicable Legal Requirements (defined below) now or hereafter in effect, and (iii) all the covenants, terms and conditions of any and all presently existing agreements affecting the Premises. Tenant has heretofore operated and occupied the Premises and has thoroughly and completely examined the physical condition of and title to the Premises as well as applicable Legal Requirements and has found all of the same to be satisfactory for all purposes. Tenant hereby accepts the Premises subject to all of the foregoing and without any representation or warranty by Landlord, express or implied in fact or by law and expressly without recourse to Landlord as to title to the Premises, the nature, the physical condition or suitability thereof. 2. TERM. 2.1 Term. The term of this Lease shall be for a period of two (2) years commencing on the date hereof ("Commencement Date") and shall end on the last day of January, 2003, unless sooner terminated as provided in this Lease, or unless it is extended pursuant to the provisions of Section 2.2 below. 2.2 Extensions. Provided Tenant is not in default under this Lease beyond applicable cure periods and there is no event that with the giving of notice, the passage of time, or both would constitute an Event of Default under this Lease, Tenant shall have 2 successive options (each, an "Option") to extend the term of this Lease for six months (each, an "Option Period") on the same terms and conditions. In order to exercise an Option, Tenant shall give Landlord written notice of such exercise at least thirty (30) days prior to the end of the then- current term of this Lease. 2.3 Right to Early Termination. Tenant shall have the right to terminate this Lease and cease operation of its manufacturing facility located on the Premises at any time during the initial or any extended term by giving Landlord thirty (30) days prior written notice. Notwithstanding such termination, all of the provisions of this Lease except the provisions of this Section 2 and the obligation to pay Fixed Rent (defined below) shall remain in full force and effect during the 6-month Demolition Period (as defined in Article IX of the Purchase Agreement and Section 18 of this Lease). 3. RENT. 3.1 Fixed Rent. Tenant covenants and agrees to pay to Landlord as rent for the Premises in advance on the first day of each calendar month during the term of this Lease without deduction, offset, prior notice or demand, in lawful money of the United States, the sum of SIXTEEN THOUSAND FIVE HUNDRED and no/100 DOLLARS ($16,500.00) ("Fixed Rent"). If the Commencement Date is not the first day of a month, or if the Lease termination date is not the last day of a month, a prorated monthly installment shall be paid at the then current rate for the fractional month during which the Lease commences and/or terminates. 3.2 Additional Rent. All amounts which Tenant is required to pay to Landlord pursuant to this Lease (other than Fixed Rent) shall constitute additional rent ("Additional Rent") whether or not the same be designated as Additional Rent. Fixed Rent and Additional Rent is hereinafter referred to collectively as "Rent". Tenant shall perform all its obligations under this Lease at its sole cost and expense, and shall promptly pay to Landlord all Additional Rent. Tenant shall also promptly pay to all third parties any other sums required to be paid by Tenant under this Lease, when the same shall be due and payable and in all event prior to delinquency, without notice or demand, deduction or offset, except as otherwise expressly provided in this Lease. 2 P\DRS\DRS22X 3.3 Absolute Net Lease. This Lease is intended to be and shall be construed as an absolutely net lease pursuant to which Landlord shall not, under any circumstances or conditions, whether presently existing or hereafter arising, or whether beyond the present contemplation of the parties, be expected or required to make any payment of any kind whatsoever or be under any other obligation or liability, except as otherwise expressly set forth in this Lease, and Tenant shall make any and all payments required hereunder. 4. [Intentionally Deleted.] 5. TAXES, ASSESSMENTS AND UTILITIES; COMPLIANCE BY TENANT. 5.1 Payment by Tenant. Tenant shall pay all Taxes directly to the applicable governmental agency prior to delinquency and shall provide proof of such payment to Landlord promptly upon request. 5.2 "Taxes" means all real estate taxes, personal property taxes, assessments, leasehold excise taxes, other excise taxes, charges for public utilities, payments in lieu of taxes and other charges of whatever kind or nature, general or special, ordinary or extraordinary, foreseen or unforeseen, levied by any public, governmental or quasi-governmental authority against the Premises or improvements, fixtures and equipment therein, and all property of Landlord, real or personal, used directly in the maintenance, repair or operation of the Premises including, without limitation, any installments payable for any personal property taxes or sales taxes. To the extent Taxes, assessments or other charges can be paid in installments, Tenant may pay such Taxes in installments and shall only be liable for installments coming due from and after the date of this Lease. With respect to any general or special assessments which may be levied against or upon the Premises, or which under the laws then in force may be evidenced by improvement or other bonds or may be paid in annual installments, only the amount of such annual installment, and interest due thereon, shall be included within the computation of Taxes. 5.3 Personal Property Taxes. Tenant shall pay prior to delinquency all taxes assessed against and levied upon leasehold improvements, fixtures, furnishings, equipment and all other personal property of Tenant contained in the Premises or elsewhere. When possible, Tenant shall cause said leasehold improvements, trade fixtures, furnishings, equipment and all other personal property to be assessed and billed separately from the real property of Landlord. 5.4 Utilities. Tenant shall pay prior to delinquency for all water, gas, heat, light, power, telephone, sewage, air conditioning and ventilating, scavenger, janitorial, landscaping, and all other materials and utilities supplied to the Premises. Tenant shall pay for all telephone and such other services for the Premises for which Tenant shall have contracted. 5.5 Compliance with Legal Requirements and Agreements. Tenant shall at its sole cost and expense comply with and perform all obligations with respect to (i) all applicable local, state and federal laws, ordinances and regulations, and other governmental rules, orders and determinations now or hereafter in effect, whether or not presently contemplated, applicable to the Premises, or its ownership, operation, use or possession (collectively "Legal 3 P\DRS\DRS22X Requirements"), including (without limitation) all those relating to parking restrictions, building codes, zoning or other land use matters, life safety, requirements, environmental compliance with respect to, among other things, the handling, manufacture, treatment, storage, disposal, Release, discharge, use and transportation of Hazardous Substances (defined below) and all other laws and regulations, whether presently existing or hereafter enacted, affecting the construction, use, occupancy and operation of the Premises, and (ii) all contracts (including insurance policies, to the extent necessary to prevent cancellation and to insure full payments of any claims made under such policies), covenants, conditions and restrictions and all other documents applicable to the Premises and its ownership, operation, use or possession, (collectively "Agreements"); which compliance shall include the making of any and all required physical alterations or structural changes to the Premises. 6. USE 6.1 Use. The Premises shall be used and occupied by Tenant for manufacturing, office and distribution purposes consistent with Tenant's past practices on the Premises and for no other purpose without the prior written consent of Landlord. 6.2 Suitability. Tenant acknowledges that neither Landlord nor any agent of Landlord has made any representation or warranty with respect to the Premises or with respect to the suitability of the Premises for the conduct of Tenant's business, nor has Landlord agreed to undertake any modification, alteration or improvement to the Premises. The taking of possession of the Premises by Tenant shall conclusively establish that the Premises were at such time in satisfactory condition. 6.3 Uses Prohibited. (a) Tenant shall not do or permit anything to be done in or about the Premises nor bring or keep anything therein which will in any way increase the existing rate or affect any fire or other insurance upon the Premises or any of its contents (unless Tenant shall pay any increased premium as a result of such use or acts), or cause a cancellation of any insurance policy covering said Premises or any of its contents, nor shall Tenant sell or permit to be kept, used or sold in or about said Premises any articles which may be prohibited by a standard form policy of fire insurance. (b) Tenant shall not use or allow the Premises to be used for any unlawful or objectionable purpose, nor shall Tenant cause, maintain or permit any nuisance in, on or about the Premises. Landlord and Tenant agree that the continued use of the Premises as a manufacturing facility for the manufacture of formaldehyde, urea formaldehyde and phenol formaldehyde thermoset resins for production of particle board and plywood shall not constitute an objectionable purpose under this Lease. Tenant shall not commit or suffer to be committed any waste in or upon the Premises. (c) Tenant shall not use the Premises or permit anything to be done in or about the Premises which will in any way conflict with any law, statute, ordinance or 4 P\DRS\DRS22X governmental rule or regulation or requirement of duly constituted public authorities now in force or which may hereafter be enacted or promulgated. 7. MAINTENANCE, REPAIRS AND MODIFICATION 7.1 Tenant, at Tenant's sole cost and expense, shall keep the Premises and every part thereof, including, without limiting the generality of the foregoing, all plumbing, heating, air conditioning and ventilating, electrical and lighting facilities and equipment within the Premises, foundations, exterior walls, roof, fixtures, interior walls, ceilings, windows, doors, plate glass and skylights located within the Premises and all sidewalks, landscaping, driveways, loading docks, parking lots, fences, signs and other such items located in the areas which are included within the Premises in the same order, condition and repair as it historically operated and maintained the Premises during its prior ownership thereof and in compliance with all Legal Requirements. Upon the expiration or earlier termination of this Lease, Tenant shall perform Tenant's obligations under Article IX of the Purchase Agreement, including, but not limited to, removal of Tenant's personal property, machinery, trade fixtures and equipment located in the buildings presently located on the Premises, including demolition of all structures and Improvements in accordance with the provisions of Section 9.1 thereof, and the provisions of Section 18 of this Lease. Tenant shall indemnify the Landlord against any loss or liability resulting from delay by Tenant in so surrendering the Premises, including without limitation any claims made by any succeeding tenant founded on such delay. In the event Tenant fails to maintain the Premises in as good an order, condition and repair as Tenant has historically operated and maintained the Premises or if Tenant fails to comply with all Legal Requirements, Landlord shall give Tenant notice to do such acts as are reasonably required to so maintain the Premises or to comply with all Legal Requirements. In the event Tenant fails to promptly commence such work and diligently prosecute it to completion, then Landlord shall have the right to do such acts and expend such funds at the expense of Tenant as are reasonably required to perform such work. Any amount so expended by Landlord shall be paid by Tenant promptly after demand as Additional Rent with interest at twelve percent (12%)per annum from the date of such work. Landlord shall have no liability to Tenant for any damage, inconvenience or interference with the use of the Premises by Tenant as a result of performing any such work. Nothing in this Lease shall imply any duty or obligation upon the part of Landlord to do any work or to make any alterations and repairs and the performance thereof by Landlord shall not constitute a waiver of Tenant's default in failing to perform the same. 7.2 Modifications, Alterations and Additions. Tenant shall make no modifications, alterations, additions or improvements to the Premises or any part thereof without first obtaining the prior written consent of Landlord. As a condition to giving such consent, Landlord will require Tenant to remove any 5 P\DRS\DRS22X such modification, alteration, improvement or addition at the expiration of the Lease term as part of its demolition of Improvements as required under Section 9.1 of the Purchase Agreement. All such modifications, alterations, additions and/or improvements if approved by Landlord shall be constructed in accordance with Landlord approved plans and specifications and by a contractor and under a construction contract, the terms and conditions of which have been approved by Landlord. 8. ENTRY BY LANDLORD. Landlord reserves and shall at any and all times during normal business hours and upon reasonable prior notice to Tenant's plant manager or superintendent (and, if within Tenant's manufacturing facility located on the Premises in the presence of Tenant's escort), have the right to enter the Premises to inspect the same, to post notices of non-responsibility, to obtain soil samples, install monitoring wells, conduct surveying work and engage in other pre-development activities and to show the Premises to prospective purchasers or tenants thereof. Tenant hereby waives any claim for damages, for any injury or inconvenience to or interference with Tenant's business, any loss of occupancy or quiet enjoyment of the Premises, and any other loss occasioned thereby. For each of the aforesaid purposes, Landlord shall at all times have and retain a key with which to unlock all of the doors in, upon and about the Premises, excluding Tenant's vaults and safes, and Landlord shall have the right to use any and all means which Landlord may deem proper to open doors in any emergency, in order to obtain entry to the Premises, and any entry to the Premises obtained by Landlord by any of said means, or otherwise, shall not under any circumstances be construed, or deemed to be a forcible or unlawful entry into, or a detainer of, the Premises, or an eviction of Tenant from the Premises or any portion thereof. Any entry by Landlord or its agents shall not unreasonably disrupt or interfere with Tenant's operations on the Property, Tenant's safety program or security requirements, or Tenant's demolition activities under Section 18 below. 9. LIENS. Tenant shall keep the Premises free from any liens out of work performed, materials furnished, or obligations incurred by Tenant and shall indemnify, hold harmless and defend Landlord from any liens and encumbrances arising out of any work performed or materials furnished by or at the direction of Tenant. In the event that Tenant shall not, within thirty (30) days following the imposition of any such lien, cause such lien to be released of record by payment or posting of a proper bond, Landlord shall have, in addition to all other remedies provided herein and by law, the right, but not the obligation, to cause the same to be released by such means as it shall deem proper, including payment of the claim giving rise to such lien. All such sums paid by Landlord and all expenses incurred by it in connection therewith including attorneys' fees and costs shall be payable to Landlord by Tenant on demand with interest at the rate of twelve percent (12%) per annum. Landlord shall have the right at all times to post and keep posted on the Premises any notices permitted or required by law, or which Landlord shall deem proper, for the protection of Landlord and the Premises, and any other party having an interest therein, from mechanics' and materialmen's liens. 6 P\DRS\DRS22X 10. INDEMNITY 10.1 Indemnity. Tenant shall protect, defend, indemnify and hold harmless Landlord from and against any and all claims arising from Tenant's use of the Premises or the conduct of its business or from any activity, work, or thing done, permitted or suffered by Tenant in or about the Premises and shall further protect, defend, indemnify and hold Landlord harmless from and against any and all claims arising from any breach or default in the performance of any obligation on Tenant's part to be performed under the terms of this Lease, or arising from any act or negligence of Tenant, or any of its agents, contractors and employees, and from and against any and all costs, attorneys' fees, expenses and liabilities incurred in connection with such claim or any action or proceeding brought against Landlord by reason of any such claim. Tenant hereby assumes all risk of damage to property or injury to persons, in or about the Premises from any cause. Tenant upon notice from Landlord shall defend the same at Tenant's expense by counsel reasonably satisfactory to Landlord, provided, however, that Tenant shall not be liable for damage or injury occasioned by the negligence or intentional acts of Landlord and its designated agents or employees unless covered by insurance Tenant is required to provide. 10.2 Exception of Landlord from Liability. Landlord shall not be liable to Tenant and Tenant hereby waives all claims against Landlord for injury, illness or death to any person or for damage to any property in or about the Premises by or from any cause whatsoever and, without limiting the generality of the foregoing, whether caused by or resulting from fire, steam, electricity, gas, water or rain, which may leak or flow from or into any part of the Premises, or from breakage, leakage, obstruction or other defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures of the same, whether the said damage or injury results from conditions arising upon the Premises or from other sources. 11. INSURANCE 11.1 Liability Insurance. Tenant shall, at Tenant's sole cost and expense, but for the mutual benefit of Landlord and Tenant, obtain and keep in force throughout the term of this Lease general liability insurance insuring Landlord and Tenant against claims for personal injury (including, without limitation, bodily injury or death), property damage liability and such other loss or damage from such causes of loss as are embraced by insurance policies of the type now known as "Commercial General Liability" insurance, with a combined single limit of $5,000,000. The limits of such insurance shall not, however, limit the liability of Tenant hereunder. 11.2 Property Insurance. Tenant shall, if it desires, obtain and keep in force during the term of this Lease at its sole cost and expense,property insurance on the buildings and any improvements and additions permanently affixed thereto of which the Premises are a part against loss by fire and other causes. Said insurance shall provide for payment of loss thereunder to Tenant. Tenant's decision not to maintain property insurance shall not constitute a defense to Tenant's obligation to remove all of Tenant's personal property machinery, trade fixtures and equipment located in the buildings presently located on the Premises or Tenant's obligation to complete the demolition of all structures and other improvements, including foundations and piping from the Premises in the event of any damage or destruction to the Premises or upon 7 P\DRS\DRS22X expiration or earlier termination of the Lease as required under Section 9.1 of the Purchase Agreement. 11.3 Coverage for Tenant's Personal Property. Tenant shall, at its sole cost and expense, insure its personal property or trade fixtures on the Premises against loss or damage under insurance policies of the type now known as "all risk" or "special cause of loss" property insurance in an amount equal to the replacement cost thereof. Landlord shall have no obligation to insure any of Tenant's personal property or trade fixtures or repair, replace or restore same when damaged or destroyed from any cause whatsoever. 11.4 Insurance Policies. All insurance required under this Lease shall be effected under valid and enforceable policies issued by companies reasonably satisfactory to Landlord, authorized to do business in the State of Washington. Tenant shall deliver to Landlord prior to possession copies of policies of any insurance required under this Lease, or Certificates of Insurance evidencing the existence and amount of such insurance. Tenant's policies shall name Landlord as an additional insured thereunder. All such liability insurance policies shall provide for cancellation or non-renewal only upon notice by registered or certified mail to Landlord effective not earlier than 30 days after the giving of such notice, and shall otherwise be in form reasonably satisfactory to Landlord. 12. DAMAGE TO PREMISES. In the event that there is damage or destruction to the Premises, Tenant shall have the option to repair or rebuild the portion of the Premises so damaged, it being understood that Tenant shall be obligated in any event to demolish the improvements on the Premises after the expiration or earlier termination of the term of this Lease as provided in Section 7.1 and 18 of this Lease, and as provided in Article IX of the Purchase Agreement. 13. CONDEMNATION. (a) If all or any portion of the Premises shall be taken under any right of condemnation or eminent domain or any transfer in lieu thereof, this Lease and all rights of Tenant shall cease and terminate with respect to such portion of the Premises so taken on the date of such taking or transfer. Upon the date of such taking or transfer, the term of this Lease shall expire as fully and completely as if such date were the date hereinabove set forth for the end of the term of this Lease and Tenant shall thereupon vacate the Premises, without prejudice to any rights and remedies accrued to Landlord under this Lease prior to such termination, and any Rent paid or payable by Tenant shall be adjusted as of the date of such termination. (b) The entire award for the taking under any right of condemnation or eminent domain or any transfer in lieu thereof shall belong to Landlord, and Tenant shall not be entitled to any part thereof or damages for the loss of its leasehold estate or other interest in the Premises and hereby assigns to Landlord all of its right, title and interest in and to any such award. Tenant shall have the right, however, to independently claim and recover from the condemning authority compensation for any loss to which Tenant may be put for Tenant's moving expenses, business interruption, the unamortized cost of Tenant owned and financed tenant improvements or taking of Tenant's personal property (not including Tenant's leasehold 8 P\DRS\DRS22X interest) provided that such damages may be claimed only if they are awarded separately in the eminent domain proceedings and not out of or as part of the damages recoverable by Landlord. (c) Nothing contained in this Section 13 shall in any way discharge Tenant from its obligations under Section 9.1 of the Purchase Agreement and Section 18 of this Lease, each of which shall remain in full force and effect. 14. ASSIGNMENT AND SUBLETTING. 14.1 Landlord's Consent Required. Tenant shall not assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any interest therein, and shall not sublet the Premises or any part thereof, without Landlord's prior written consent in each instance, which consent may be withheld by Landlord in its sole discretion. Any request by Tenant for such consent shall be in writing, which shall set forth the details as to the proposed assignment, mortgage or subletting and have annexed thereto a copy of the proposed mortgage, assignment or sublease. Any attempted assignment, transfer, mortgage, encumbrance or subletting without such consent shall be void and shall constitute a breach of this Lease. 14.2 No Release of Tenant. No consent by Landlord to any assignment or subletting by Tenant shall relieve Tenant of any obligation to be performed by Tenant under this Lease, whether occurring before or after such consent, assignment or subletting. The consent by Landlord to any assignment or subletting shall not relieve Tenant from the obligation to obtain Landlord's express written consent to any other assignment or subletting. The acceptance of Fixed Rent or Additional Rent by Landlord from any other person shall not be deemed to be a waiver by Landlord of any provision of this Lease or to be a consent to any assignment, subletting or other transfer. Consent to one assignment, subletting or other transfer shall not be deemed to constitute to any subsequent assignment, subletting or other transfer. 15. SUBORDINATION 15.1 Subordination. This Lease shall be subject and subordinate to the lien of any mortgages or deeds of trust in any amount or amounts whatsoever now or hereafter placed on or against the land or improvements or either thereof, of which the Premises are a part, or on or against Landlord's interest or estate therein, and all modifications or renewals thereof, without the necessity of the execution and delivery of any further instruments on the part of Tenant to effectuate such subordination. 15.2 Subordination Agreements. Tenant covenants and agrees to execute and deliver upon demand without charge therefore, such further instruments evidencing such subordination of this Lease to the lien of any such mortgages or deeds of trust as may be required by Landlord. 15.3 Quiet En,L yment. Landlord covenants and agrees with Tenant that upon Tenant paying rent and other monetary sums due under the Lease, performing its covenants and conditions under the Lease, Tenant shall and may peaceably and quietly have, hold and enjoy the 9 P\DRS\DRS22X Premises for the term, subject, however, to the terms of the Lease or any mortgages or deeds of trust described above. 16. DEFAULT, REMEDIES 16.1 Default. The occurrence of any of the following shall constitute a material default and breach of this Lease by Tenant: (a) Any failure by Tenant to pay Rent, Additional Rent or any other monetary sums required to be paid hereunder which is not paid within three (3) business days after notice from Landlord that such payment is overdue; (b) A failure by Tenant to observe and perform any other provision of this Lease, where such failure continues for twenty (20) days after written notice thereof by Landlord to Tenant, provided, however, that if the nature of the default is such that the same cannot reasonably be cured within said twenty (20) day period, Tenant shall not be deemed to be in default if Tenant shall within such period commence such cure and thereafter diligently prosecute the same to completion and further provided that such period of time shall not be so extended as to subject Landlord to criminal liability; (c) Tenant shall file a voluntary petition in bankruptcy or shall be adjudicated a bankrupt or insolvent or shall file any petition or answer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the present or any future federal bankruptcy code or any other present or future applicable federal, state or other statute or law, or shall seek or consent to or acquiesce in the appointment of any trustee, receiver or liquidator of Tenant or of all or any substantial part of its properties or of the Premises; or (d) If within 60 days after the commencement of any proceeding against Tenant seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under the present or any future federal bankruptcy act or any other present or future applicable federal, state or other statute or law, such proceeding shall not have been dismissed or if, within 60 days after the appointment, without the consent or acquiescence of Tenant, of any trustee, receiver or liquidator of Tenant or of all or any substantial part of its properties or of the Premises, such appointment shall not have been vacated or stayed on appeal or otherwise, or if, within 60 days, after the expiration of any such stay, such appointment shall not have been vacated. 16.2 Remedies. In the event of any such default or breach by Tenant, Landlord may, at any time thereafter without limiting Landlord in the exercise of any right or remedy at law or in equity which Landlord may have by reason of such default or breach: (a) Maintain this Lease in full force and effect and recover the Rent, Additional Rent and other monetary charges as they become due, without terminating Tenant's right to possession irrespective of whether Tenant shall have abandoned the Premises. In the event Landlord elects not to terminate this Lease, Landlord shall have the right to attempt to relet 10 P\DRS\DRS22X the Premises at such rent and upon such conditions and for such a term, and to do all acts necessary to maintain or preserve the Premises as Landlord deems reasonable and necessary without being deemed to have elected to terminate this Lease, including removal of all persons and property from the Premises. Such property may be removed and stored in a public warehouse or elsewhere at the cost of and for the account of Tenant. (b) Terminate Tenant's right to possession by any lawful means, in which case this Lease shall terminate and Tenant shall immediately surrender possession of the Premises to Landlord. In such event Landlord shall be entitled to recover from Tenant all damages incurred by Landlord by reason of Tenant's default, including without limitation thereto, the following: (i) the worth at the time of award of any unpaid rent which had been earned at the time of such termination; plus (ii) the worth at the time of award of the amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that is proved could have been reasonably avoided; plus (iii) the worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of such rental loss that is proved could be reasonably avoided; plus (iv) any other amount necessary to compensate Landlord for all the damages proximately caused by Tenant's failure to perform its obligations under this Lease or which in the ordinary course of events would be likely to result therefrom, including, without limitation, costs of reletting, tenant improvements and leasing commissions; plus (v) at Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by applicable state law. Upon any such re-entry Landlord shall have the right to make any reasonable repairs, alterations or modifications to the Premises, which Landlord in its sole discretion deems reasonable and necessary. As used in (i) above, the "worth at the time of award" is computed by allowing interest at the rate of twelve percent (12%) per annum from the date of default. As used in (ii) and (iii)the "worth at the time of award" is computed by discounting such amount at the discount rate of the U.S. Federal Reserve Bank at the time of award plus one percent (1%). 16.3 Late Charges. Tenant hereby acknowledges that late payment by Tenant to Landlord of Rent, Additional Rent and other sums due hereunder will cause Landlord to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges, and late charges which may be imposed on Landlord by the terms of any mortgage or deed of trust covering the Premises. Accordingly, if any installment of rent or any other sum due from Tenant shall not be received by Landlord or Landlord's designee within ten (10) days after such amount shall be due; Tenant shall pay to Landlord a late charge equal to five percent (5%) of such overdue amount. The parties hereby agree that such late charge represents a fair and reasonable estimate of the costs Landlord will incur by reason of late payment by Tenant. Acceptance of such late charge by Landlord shall in no event constitute a waiver of Tenant's default with respect to such overdue amount, nor prevent Landlord from exercising any of the other rights and remedies granted hereunder. 17. ENVIRONMENTAL INDEMNITY. Tenant shall not cause or permit any Hazardous Substances (as defined in Exhibit "B" attached hereto and by this reference incorporated herein) to be brought upon, kept or used in or about the Premises by Tenant, its I 1 P\DRS\DRS22X agents, employees, contractors or invitees, without the prior written consent of Landlord; provided, however, that Tenant shall be permitted to continue to possess and use Hazardous Substances on, in and about the Premises in a manner consistent with Tenant's prior practices in operating its business on the Premises, so long as Tenant uses all such Hazardous Substances in accordance with all Legal Requirements. Notwithstanding the foregoing, Tenant represents and warrants that it does not and will not use arsenic, arsenic containing materials, asbestos, asbestos containing materials or lead based paint in its manufacturing processes and other operations conducted at the Premises. If Tenant breaches its obligations set forth above or if the presence of Hazardous Substances on or about the Premises caused or permitted by Tenant after the date of this Lease results in contamination of the Premises or if contamination of the Premises or surrounding area by Hazardous Substances otherwise occurs after the date of this Lease for which Tenant is legally liable, then Tenant shall protect, defend, indemnify and hold Landlord harmless from and against any and all claims, judgments, damages, penalties, fines, costs, liabilities or losses (including, without limitation, diminution in value of the Premises or any building of which the Premises are a part), damages for the loss or restrictions on use of any space in the Premises, damages arising from any adverse impact on marketability of other properties owned by Landlord or other space in the building of which the Premises are a part, and sums paid in settlement of claims, attorney's fees, consultant fees and expert fees) which arise during or after the term of this Lease as a result of such contamination. This indemnification of Landlord by Tenant includes, without limitation, costs incurred in connection with any investigation of site conditions or any cleanup, remedial, removal or restoration work required by any federal, state or local governmental agency or political subdivision because of a Release of Hazardous Substances by Tenant after the date of this Lease. If the presence of any Hazardous Substance on or about the Premises caused or permitted by Tenant after the date of this Lease results in any contamination of the Premises or surrounding area, or causes the Premises or surrounding area to be in violation of any laws, rules, statutes, or ordinances, Tenant shall promptly take at its sole expense all actions necessary to return the Premises and surrounding area to the condition existing prior to the introduction of such Hazardous Substance; provided that Landlord's approval shall first be had and obtained, which approval shall not be unreasonably withheld so long as such actions would not potentially have any material adverse long-term or short-term effect on the Premises or surrounding area. Notwithstanding anything to the contrary contained in this Section 17 or elsewhere in this Lease, the parties acknowledge that certain Hazardous Substances may be located in, on or under the Premises, as described and acknowledged in Sections 4.5 and 5.5 of the Purchase Agreement, and nothing contained in this Section 17 or elsewhere in this Lease shall be deemed to amend or modify the provisions of the Purchase Agreement with respect to Existing Hazardous Substances (as defined in the Purchase Agreement) identified in the URS Report or require Tenant to perform any remediation of Existing Hazardous Substances identified in the URS Report or Additional Hazardous Substances (as defined in the Purchase Agreement) which were present on the Property as of the commencement of the term of this Lease; provided, however, Tenant shall be required to remediate and shall protect, defend, indemnify and hold Landlord harmless with respect to Hazardous Substances which are first Released by Tenant on the Premises after the date hereof. 12 P\DRS\DRS22X 18. REMOVAL_ OF PERSONAL PROPERTY AND OTHER IMPROVEMENTS• DEMOLITION PERIOD. 18.1. Removal of Personal Property and Other Improvements. Tenant shall remove all of Tenant's personal property, machinery, trade fixtures and equipment located in the buildings presently located on the Premises, at Tenant's cost and expense no later than the end of the 6-month demolition period following the termination of Tenant's operation of its manufacturing facility on the Premises as provided in Section 2.3 of this Lease (the "Demolition Period"). Tenant shall also remove, dismantle or demolish all structures and improvements including foundations and underground piping located on the Premises, at no cost to Landlord, no later than at the end of the 6-month Demolition Period. No Fixed Rent shall be due Landlord during the 6-month Demolition Period during which Tenant is removing, dismantling or demolishing all structures and other Improvements located on the Property; provided, however, that all other terms and provisions of this Lease (except for Section 2 dealing with Term) shall remain in full force and effect until the end of the 6-month Demolition Period. Demolition shall include the proper removal and disposal of all lead-based paint and asbestos containing materials in accordance with all environmental laws and all Remedial Work resulting from the removal of Tenant's personal property and other Improvements from the Property. Tenant shall obtain all demolition and other permits which may be required under applicable law to complete the demolition work and remove and dispose of all lead-based paint and asbestos containing materials. Tenant shall notify Landlord prior to any removal, dismantling or demolition of structures or Improvements, including foundations and piping, from the Property. Landlord and Landlord's environmental consultants shall have the right to observe the removal, dismantling and/or demolition process and to conduct such investigation and inspection of the Property as the Landlord deems necessary to determine the environmental condition of the Property underneath the structures and Improvements being demolished, including, but not limited to, obtaining air, soil and ground water samples, and the installation and monitoring of ground wells. Such demolition and removal shall be conducted in accordance with all applicable laws, rules and regulations and with the utmost regard for the safety of persons and property. All man-made structures, buildings, process equipment, above and below ground piping and other structures, foundations, pavements and railroad tracks and ties (other than tracks and ties located on the Burlington Northern site immediately adjacent to the south of the Property) will be demolished and removed from the Property and properly disposed of in accordance with applicable laws. No demolition work will occur on the ballfields on the northern half of the Property. All underground utility lines, including natural gas, storm sewer, sanitary sewer and water, will be capped at the street mains in accordance with the requirements of Puget Sound Energy and the City of Kent, respectively. The underground utility lines will be removed from the ground and disposed of in accordance with applicable laws. All areas of the Property where industrial development has occurred will be regraded flat, to an elevation equal to the top of the curb or the top of roadway crown of the roadways adjacent to the Property, plus or minus six inches (6"). If fill is required to achieve this elevation, fill material will be comprised of native soils, free of organic material and manmade debris. All soils removed from the Property as a result of the demolition work will be properly classified and disposed of in accordance with applicable laws. 13 P\DRS\DRS22X Soil fences and erosion control measures will be taken in accordance with all applicable laws. The demolition work will not include hydroseeding or landscaping. Tenant shall have the right to retain for its own account all proceeds derived from the sale or other disposition of such personal property, machinery, trade fixtures, equipment, and other improvements located on the Property. 18.2. Performance and Payment of Remedial Work for Additional Hazardous Substances. In the event Tenant, Landlord or Landlord's environmental consultants discovers during or following the demolition process that Additional Hazardous Substances (as defined in the Purchase Agreement) exist in the soil or in the ground water at or originating from the Property, Landlord shall have the right, but not the obligation, to cause such Additional Hazardous Substances to be remediated to the applicable cleanup standards under applicable environmental laws in light of Landlord's intended use of the Property for residential development and to be reimbursed for the cost of the Remedial Work (defined below) from the Environmental Holdback established pursuant to Section 5.5 of the Purchase Agreement in accordance with the procedures established in Section 9.2 of the Purchase Agreement and this Section 18.2. 18.2.1. Definition of Remedial Work. As used in the Purchase Agreement and in this Lease, the term "Remedial Work" means all activities performed after the date hereof in connection with or in anticipation of the assessment, cleanup, removal, mitigation, monitoring or containment of any Additional Hazardous Substances to meet the requirements of applicable laws relating to the cleanup or remediation of Hazardous Substances in light of the reasonably intended use of the Property at the time the Remedial Work commences. The term "Remedial Work" also includes the defense or prosecution of any proceedings before a court, administrative judge or tribunal or governmental agency and all negotiations with any governmental agency or its employees or consultants relating to the performance of Remedial Work in connection with any Additional Hazardous Substances, the reasonable fees and expenses (including reasonable attorney's fees) of Landlord, and its attorneys and consultants and any fines or penalties assessed against Landlord in connection therewith. Landlord shall not be entitled to reimbursement from the Environmental Holdback for any Remedial Work or any portion thereof caused by or resulting from the negligence of Landlord or from any Hazardous Substances placed on the Property by Landlord after the date hereof. Landlord shall also have the right to obtain at its sole cost (and not be reimbursed from funds on deposit in the Environmental Holdback) a "No Further Action Letter" from the Washington State Department of Ecology. 18.2.2. Notification and Performance of Remedial Work. Prior to commencement of Remedial Work, Landlord shall notify Tenant in writing of its intent to cause performance of any material Remedial Work (the "Remedial Work Notice"). The Remedial Work Notice shall indicate the location, nature and likely source of the Additional Hazardous Substances requiring Remedial Work, the scope of the Remedial Work, and the estimated cost of the Remedial Work. Landlord shall permit Tenant's agents, consultants and contractors prompt and reasonable access to the Property to confirm that the Remedial Work is required. 14 P\DRS\DRS22X 18.2.3. Completion of Remedial Work; Accounting. Once Landlord has substantially completed each phase of the Remedial Work, Landlord shall provide Tenant and Escrow Holder with an accounting of the costs for the Remedial Work, and Escrow Holder shall reimburse Landlord for the cost of such Remedial Work until all amounts on deposit in the Environmental Holdback (including all investment earnings thereon) has been expended. Landlord shall be solely responsible for the payment of all costs of Remedial Work in excess of the Environmental Holdback. 18.2.4. Exigent Circumstances. Notwithstanding the provisions of Section 18.2.2 to the contrary, Landlord may, without notice to Tenant, cause Remedial Work to be done if the Remedial Work is necessary to prevent an immediate and substantial endangerment to the environment or the public health, safety and welfare. In such event, Landlord shall notify Tenant as soon as possible after it learns of the presence of the Additional Hazardous Substance. Landlord shall be reimbursed from the Environmental Holdback for the cost of such Remedial Work in accordance with Section 18.2.3. 18.2.5. Termination of Environmental Holdback. The provisions of this Section 18.2 and the Environmental Holdback shall survive the Closing and the recording of the Deed to the Property and shall terminate upon one (1) year following expiration of the 6-month Demolition Period. During such one (1) year period, the provisions of this Section 18.2 may be enforced by Landlord from time to time as it discovers the need for Remedial Work with reference to Additional Hazardous Substances. Notwithstanding anything to the contrary contained herein, Tenant's total responsibility for the payment of Remedial Work in connection with Additional Hazardous Substances shall not exceed the Environmental Holdback (including any and all investment earnings thereon). Upon termination of this Section 18.2, all funds, if any, on deposit with Escrow Holder in the Environmental Holdback (including any investment earnings thereon) shall be returned to Tenant. 19. MISCELLANEOUS 19.1 Estoppel Certificate. (a) Tenant shall at any time upon not less than ten (10) days prior written notice from Landlord execute, acknowledge and deliver to Landlord a statement in writing (i) certifying that this Lease is unmodified and in full force and effect (or, if modified, stating the nature of such modification and certifying that this Lease, as so modified, is in full force and effect) and the date to which the rent and other charges are paid in advance, if any, and (ii) acknowledging that there are not, to Tenant's knowledge, any uncured defaults on the part of Landlord hereunder, or specifying such defaults if any are claimed. Any such statement may be conclusively relied upon by any prospective purchaser or encumbrancer of the Premises. (b) Tenant's failure to deliver such statement within such time shall be conclusive upon Tenant (i) that this Lease is in full force and effect, without modification except as may be represented by Landlord, (ii)that there are no uncured defaults in Landlord's performance, and (iii)that not more than one month's rent has been paid in advance. 15 P\DRS\DRS22X 19.2 Transfer of Landlord's Interest. In the event of a sale or conveyance by Landlord of Landlord's interest in the Premises, other than a transfer for security purposes only, Landlord shall be relieved from and after the date specified in any such notice of transfer of all obligations and liabilities accruing thereafter on the part of Landlord, provided that any funds in the hands of Landlord at the time of transfer in which Tenant has an interest, shall be delivered to the successor of Landlord. This Lease shall not be affected by any such sale and Tenant agrees to attorn to the purchaser of assignee provided all Landlord's obligations hereunder are assumed in writing by the transferee. 19.3 Captions; Attachments; Defined Terms. (a) The captions of the paragraphs of this Lease are for convenience only and shall not be deemed to be relevant in resolving any question of interpretation or construction of any section of this Lease. (b) Exhibits attached hereto, and addenda and schedules initialed by the parties, are deemed by attachment to constitute part of this Lease and are incorporated herein. (c) The words "Landlord" and "Tenant," as used herein, shall include the plural as well as the singular. Words used in neuter gender include the masculine and feminine and words in the masculine or feminine gender include the neuter. The obligations contained in this Lease to be performed by Landlord shall be binding on Landlord's successors and assigns only during their respective periods of ownership. Any capitalized terms not otherwise defined herein shall have the same meaning as set forth in the Purchase Agreement. 19.4 Entire Agreement. This instrument along with any exhibits and attachments hereto, constitutes the entire agreement between Landlord and Tenant relative to the leasing of the Premises and this Lease and the exhibits and attachments may be altered, amended, or revoked only by an instrument in writing signed by both Landlord and Tenant. Landlord and Tenant agree hereby that all prior or contemporaneous oral agreements between and among themselves and their agents or representatives relative to the leasing of the Premises are merged in or revoked by this Lease. 19.5 Severability. If any term or provision of this Lease shall, to any extent, be determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Lease shall not be affected thereby, and each term and provision of this Lease shall be valid and be enforceable to the fullest extent permitted by law. 19.6 Costs of Suit. (a) If Tenant or Landlord shall bring any action for any relief against the other, declaratory or otherwise, arising out of this Lease, including any suit by Landlord for the recovery of rent or possession of the Premises, the losing party shall pay the successful party a reasonable sum for attorneys' fees which shall be deemed to have accrued on the commencement of such action and shall be paid whether or not such action is prosecuted to judgment. 16 P\DRS\DRS22X (b) Should Landlord, without fault on Landlord's part, be made a party to any litigation instituted by Tenant or by any third party against Tenant, or by or against any person holding under or using the Premises by license of Tenant, or for the foreclosure of any lien for labor or material furnished to or for Tenant or any such other person or otherwise arising out of or resulting from any act or transaction of Tenant or of any such person, Tenant covenants to save and hold Landlord harmless from any judgment rendered against Landlord or the Premises or any part thereof, and all costs and expenses, including reasonable attorneys' fees, incurred by Landlord in or in connection with such litigation. 19.7 Time. Time is of the essence of this Lease and each and every provision hereof. All rights and remedies of the parties shall be cumulative and nonexclusive of any other remedy at law or in equity. 19.8 Binding Effect; Choice of Law. The parties hereto agree that all provisions hereof are to be construed as both covenants and conditions as though the words importing such covenants and conditions were used in each separate paragraph hereof. Subject to any provisions hereof restricting assignment or subletting by Tenant and subject to Section 19.2, all of the provisions hereof shall bind and inure to the benefit of the parties hereto and their respective successors and assigns. This Lease shall be governed by the laws of the State of Washington. 19.9 Waiver. No covenant, term or condition or the breach thereof shall be deemed waived, except by written consent of the party against whom the waiver is claimed, and any waiver or the breach of any covenant, term or condition shall not be deemed to be a waiver or any preceding or succeeding breach of the same or any other covenant, term or condition. Acceptance by Landlord of any performance by Tenant after the time the same shall have become due shall not constitute a waiver by Landlord of the breach or default of any covenant, term or condition unless otherwise expressly agreed to by Landlord in writing. 19.10 Surrender of Premises. The voluntary or other surrender of this Lease by Tenant, or a mutual cancellation thereof, shall not work as a merger, and shall, at the option of the Landlord, terminate all or any existing subleases or subtenancies, or may, at the option of Landlord, operate as an assignment to it of any or all such subleases or subtenancies, or may, at the option of Landlord, operate as an assignment to it of any or all such subleases or subtenancies. 19.11 Holding Over. If Tenant remains in possession of all or any part of the Premises after the expiration of the term hereof, with or without the express or implied consent of Landlord, such tenancy shall be from month to month only, and not a renewal hereof or an extension for any further term, and in such case, rent and other monetary sums due hereunder shall be payable in the amount and at the time specified in this Lease and such month to month tenancy shall be subject to every other term, covenant and agreement contained herein. 19.12 Signs. Tenant shall not inscribe, paint, affix, place or permit to be placed any additional projecting sign, marquee, awning, advertisement, sign, notice or placard on the 17 P\DRS\DRS22X exterior or roof of the Premises or upon or about the entrance doors, windows, sidewalks, or areas adjacent to the Premises beyond those signs installed as of the date of this Lease without Landlord's prior written consent. Landlord reserves the right in Landlord's sole discretion to place such notices, signs, marquees, and advertisements as Landlord may deem appropriate in the operation of Landlord's affairs. 19.13 Limitation on Landlord's Liability. Tenant agrees that it shall look solely to the estate and property of Landlord in the land and buildings constituting the Premises for the collection of any judgment requiring the payment of money by Landlord in the event of any default or breach by Landlord with respect to any term, covenant and condition of this Lease to be performed by Landlord and no other assets of Landlord shall be subject to levy, execution or other procedure for the satisfaction of Tenant's remedies. 19.14 Interest on Past Due Obligations. Except as expressly herein provided, any amount due to Landlord not paid when due shall bear interest at twelve percent (12%) per annum from the date due. Payment of such interest shall not excuse or cure any default by Tenant under this Lease. 19.15 Brokers. Each party will defend, indemnify and hold the other party harmless from any claim, loss or liability made or imposed by any other party claiming a commission or fee in connection with this Lease and arising out of its own conduct. The parties' obligations under this paragraph shall survive expiration or termination of this Lease. 19.16 Notices. All notices, demands, requests, consents and approvals which may, or are required to, be given by any party to any other party hereunder shall be in writing and shall be deemed to have been duly given if delivered personally, sent by a nationally recognized overnight delivery service, or if mailed or deposited in the United States mail and sent by registered or certified mail, return receipt requested,postage prepaid to: Landlord at: City of Kent 220 4th Avenue South Kent, Washington 98032-5895 Attention: Jacki Skaught, Economic Development Manager Tenant at: Borden Chemical, Inc. 520— 112`h Avenue NE P.O. Box 3626 Bellevue, Washington 98009-3626 Attention: Ross Burkett or to such other addresses as either party hereto may from time to time designate in writing and deliver in a like manner. All notices shall be deemed complete upon actual receipt or refusal to accept delivery. 18 P\DRS\DRS22X 19.17 Waiver of Relocation Assistance under Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended. Tenant acknowledges that Landlord formally notified Tenant that the Premises were acquired by Landlord with federal financial assistance provided to Landlord by King County through the receipt and disbursement of Community Development Block Grant monies made available to King County by the United States Department of Housing and Development (hereinafter "HUD") pursuant to the Housing and Community Development Act of 1974, as amended, and the federal regulations promulgated thereunder. Tenant acknowledges that it has been advised of its rights to relocation payments and other relocation assistance under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended ("URA"). Tenant has deliberately, knowingly and intentionally determined not to claim the benefits available to Tenant under URA and hereby releases Landlord and King County from all obligations and liabilities regarding any rights to relocation payments and other relocation assistance under URA. Tenant has had an opportunity to consult with counsel regarding the applicability of URA to the sale of the Property pursuant to the Purchase Agreement and subsequent lease of the Premises under this Lease and does hereby knowingly and intentionally waive its rights to relocation payments and other relocation assistance under URA. Tenant has made this waiver freely and without reservation or qualification. Tenant agrees to execute such additional waivers or other documentation as Landlord or King County may request to confirm the waiver contained in this Section 19.17. 19.18 Corporate Authority. Tenant represents and warrants that it is duly authorized to execute and deliver this Lease in accordance with a duly adopted resolution of the Board of Directors of said corporation or in accordance with the bylaws of said corporation, and that this Lease is binding upon Tenant in accordance with its terms. Landlord represents and warrants that it is duly authorized to execute and deliver this Lease in accordance with a duly adopted resolution of Landlord, and that this Lease is binding upon Landlord in accordance with its terms. 19 P\DRS\DRS22X IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease the date and year first above written. LANDLORD: TENANT: CITY OF KENT, a Washington municipal BORDEN CHEMICAL, INC., a Delaware corporation corporation r� By By Name Name Mir-�ua1 uee� Title Title fce s idenf & C rEo Approved as to form: CITY ATTORNEY: By h9-4 Address: Address: 220—4`h Avenue South P.O. Box 3626 Kent, Washington 98032-5895 Bellevue, Washington 98009-3626 Attn: Ross Burkett 20 P\DRS\DRS22X STATE OF WASHINGTON ) ss. COUNTY OF KING ) I certify that I know or have satisfactory evidence that Qis the person who appeared before me, and said person acknowledged t t he/she signed this instrument, on oath st ted that he/she was authorized to execute the ins ment and acknowledged it as the of the CITY OF KENT, a Washington municipal corporation,to be the free and voluntary a of such party for the uses and purposes mentioned in the instrument. Dated: . d , Notary P he .,t = Print Na e � 4 i -r ,¢�tJ1STC2 My commission expires <• (Use this space for notanal stamp/seal) ID STATE OF ) f "Y.Lim )ss. COUNTY OF K4Wj ) I certify that I know or have satisfactory evidence that m-.,L k C C k C. b'A C Q y is the person who appeared before me, and said person acknowledged that he/she signed this instrument, on oath stated that he/she was authorized to execute the instrument and acknowledged it as the We S,deoi- ♦ C E D of BORDEN CHEMICAL, INC., a Delaware corporation, to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated: Notary PublicnT Print Name My commission expires (Use this space for notarial stamp/seal) 21 P\DRS\DRS22X EXHIBIT A-1 A certain tract of land situated in the City of Kent, King County, Washington and more particularly described as follows: A-1-1 EXHIBIT A The land referred to is situated in the county of King, State of Washington, and described as that portion of the following described real estate as shown on EXHIBIT A-2: PARCEL A: That portion of the northwest quarter of the northeast quarter of Section 24, Township 22 North, Range 4 East, W.M. , in King County, Washington, described as follows: Commencing at the northeast corner of said northwest quarter of the northeast quarter; thence west along the north line thereof to a point in a line parallel with and distant 30 feet west, measured at right angles, from the east line of said northwest quarter of the northeast quarter, said parallel line being the west line of 1st Avenue North; thence south 00°13'30" west along said west line a distance of 548.0 feet to the TRUE POINT OF BEGINNING; thence continuing south 00°13'30" west along said west line a distance of 214.45 feet; thence southwesterly and westerly on a curve to the right, radius of 265.44 feet, which curve is not tangent to said west line, a distance of 203.73 feet to a point of tangency in a line hereinafter called line "A", which bears south 89058130" west from a point in said west line south 00°13'30" west, a distance of 289.58 feet from the TRUE POINT OF BEGINNING, said point of tangency being distant 184 .73 feet westerly, measured along said line "A" from said west line; thence south 89°58'30" west, a distance of 226. 9 feet; thence on a curve to the right, radius of 742.0 feet, a distance of 221.77 feet; thence north 72°53'30" west a distance of 108. 4 feet to a point of curve; thence on a curve to the left, radius 787.0 feet, a distance of 169.14 feet, more or less, to a point in the east line of 4th Avenue North, distant 97.38 feet north, measured along said east line, from said line "All; Tt'1 1,. , thence north 00°13'30" east along said east line of 4th Avenue North, a distance of 427.20 feet; thence north 89°58'30" east parallel with said line "A" a distance of 440. 964 feet to a point in the centerline of the 10 foot right of way easement for a sewer pipe line heretofore granted to the City of Kent; thence southerly along said center line to a point in a line parallel with and distant 289.58 feet northerly, measured at right angles, from said Line "A" , which point is south 89°58' 30" west a distance of 457 .522 feet from the TRUE POINT OF BEGINNING; thence north 89°58' 30" east a distance of 457.522 feet to the TRUE POINT OF BEGINNING EXCEPT that portion thereof condemned in King County Superior Court Cause Number 706251. LEGAL DESCRIPTION, continued: PARCEL B: That portion of the northwest quarter of the northeast quarter of Section 24, Township 22 North, Range 4 East, W.M. , in King County, Washington, described as follows: Commencing at the northeast corner of said northwest quarter of the northeast quarter; thence west along the north line thereof to a point in a line parallel with and distant 30 feet west, measured at right angles, from the east line of said northwest quarter of the northeast quarter, said parallel line being the west line of 1st Avenue North; thence south 00°13'30" west along said west line, a distance of 548.0 feet to the TRUE POINT OF BEGINNING; thence south 89°58 '30" west a distance of 457.522 feet to a point in the center line of the 10-foot right of way easement for a sewer pipe line heretofore granted to the City of Kent; thence northerly along said center line to a point in a line parallel with and distant 235.0 feet north, measured at right angles, from the last described course; thence north 89°58 '30" east a distance of 458.556 feet to said west line; thence south 00*13130" west along west line a distance of 235 feet, more or less, to the TRUE POINT OF BEGINNING; PARCEL C: That portion of the northwest quarter of the northeast quarter of Section 24, Township 22 North, Range 4 East, W.M. , in King County, Washington, described as follows: Commencing at the northeast corner of said northwest quarter of the northeast quarter; thence west along the north line thereof to a point in a line parallel with and distant 30 feet west, measured at right angles, from the east line of said northwest quarter of the northeast quarter, said parallel line being a northerly production of the west line of First Avenue North; thence south 00"13130" west along said produced west line to a point distant 33 feet south, measured at right angles, from the north line of said northwest quarter of the northeast quarter, said point being the intersection of the west line of First Avenue North and the south line of James (Winner) Street, and the point of beginning; thence continuing south 00°13'30" west along said west line, a distance of 280 feet; thence south 89°58130" west a distance of 899.52 feet to the east line of Fourth Avenue North; thence north along said east line a distance of 280 feet to the south line of James (Winner) Street; thence east along said south line to the point of beginning; EXCEPT that portion thereof condemned in King County Superior Court Cause Number 706251. LEGAL DESCRIPTION, continued: PARCEL D: That portion of Tract X described as follows: Beginning at the most southwesterly corner of the parcel land conveyed by Northwestern Improvement Company to The Borden Company under deed dated April 12, 1956 and recorded under Recording Number 4688725, records of King County, Washington, being a point in the east line of 4th Avenue in the City of Kent; Thence south 0*13111" west along said east line 18.2 feet; Thence south 72°53'30" east 270.58 feet to a point of curve; Thence easterly on a curve to the left with a radius of 776. 62 feet, a distance of 108.07 feet; Thence north 9*08107" east 22.3 feet to a point of curve from a tangent bearing south 80°51'53" east; Thence easterly on a curve to the left, with a radius of 754 .32 feet, a distance of 120. 6 feet; Thence north 00*01 '30" west 12.7 feet, more or less, to the southerly line of the above-mentioned parcel of land; Thence westerly along said southerly line to the point of beginning. Said Tract X described as follows: That portion of the northwest quarter of the northeast quarter of Section 24, Township 22 North, Range 4 East, in King County, Washington, lying west of First Avenue North, east of 4th Avenue North, north of Temperance Street and south of the following described line: Beginning at a point on the west line of First Avenue North 762.45 feet south of the north line of said subdivision; Thence southwesterly and westerly on a curve to the right, radius of 265. 44 feet, which is not tangent to said west line, a distance of 203.73 feet to a tangency in a line hereinafter called line "A" ; Thence south 89058'30" west 226. 9 feet; Thence on a curve to the right, radius of 742.0 feet, a distance of 221.77 feet; Thence north 72°53130" west a distance of 108.4 feet to a point of curve; Thence on a curve to the left, radius 787.0 feet, a distance of 169.14 feet, more or less, to a point on the east line of 4th Avenue North. EXHIBIT A-2 Map Outlining Premises Premises shown as cross-hatched _ .)AMES STREET _ AMw-o -- -- -- -- - I +Dp_G +OP-4 BORDEN PLATFIELD l � I I IL I 11= 6 + }DP—T ej+&R-6 —S }OP—a ' Mw-6a t d CYCLONE PENCE —1 —4 10 s RE =i I TR TM N T A� DP— _ t A 1 _ — of + D REA M 0 \ t I s DP E x I x PLA 1 P KIN ` _y 1 � 1 OS 6-6 11K ENT a NE L A-2-1 EXHIBIT B "Hazardous Substances" shall include without limitation: (i) Those substances included within the definitions of "hazardous substances," "hazardous materials," "toxic substances," or "solid waste" in the Comprehensive Environmental Response Compensation and Liability Act of 1980 (42 U.S.C. § 9601 et seq.) ("CERCLA"), as amended by Superfund Amendments and Reauthorization Act of 1986 (Pub. L. 99-499 100 Stat. 1613) ("SARA"), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. § 6901 et M.) ("RCRA"), and the Hazardous Materials Transportation Act, 49 U.S.C. § 1801 et seg., and in the regulations promulgated pursuant to said laws, all as amended; (ii) Those substances listed in the United State Department of Transportation Table (49 CFR 172.101 and amendments thereto) or by the Environmental Protection Agency(or any successor agency) as hazardous substances (40 CFR Part 302 and amendments thereto); (iii) Any material, waste or substance which is (A)petroleum, (B) asbestos, (C)polychlorinated biphenyls, (D) designated as a "hazardous substance" pursuant to Section 311 of the Clean Water Act, 33 U.S.C. 1251 et seq. (33 U.S.C. § 1321) or listed pursuant to Section 307 of the Clean Water Act (33 U.S.C. § 1317); (E) flammable explosives; (F) radon gas, (G) lead or lead-based paint, (H)radioactive materials, (I) coal combustion by-products, or (J) urea formaldehyde foam insulation; (iv) Those substances defined as"dangerous wastes," "hazardous wastes" or as "hazardous substances" under the Water Pollution Control Act, RCW 90.48.010 et seq., the Hazardous Waste Management Statute, RCW 70.105.010 et seq., the Toxic Substance Control Act RCW 70.105B.010 et seq.,the Model Toxics Control Act, RCW 70.105D.010 et seq. and the Toxic Substance Control Act, 15 U.S.C. Section 2601 et se ., and in the regulations promulgated pursuant to said laws all as amended from time to time; (v) Storm water discharge regulated under any federal, state or local law, ordinance or regulation relating to storm water drains, including, but not limited to, Section 402(p) of the Clean Water Act, 33 U.S.C. Section 1342 and the regulations promulgated thereunder, all as amended from time to time; and (vi) Such other substances, materials and wastes which are or become regulated as hazardous or toxic under applicable local, state or federal law, or the United States government, or which are classified as hazardous or toxic under federal, state, or local laws or regulations, all as amended from time to time. "Release" shall mean releasing, spilling, leaking, pumping, pouring, flooding, emitting, emptying, discharging, injecting, escaping, leaching, disposing or dumping, Hazardous Substances in or into the air, soil, surface water or ground water in, on, about or under the Property. B-1