OFFICE LEASE
DATED: APRIL 24, 1997
BETWEEN: PACIFIC REALTY ASSOCIATES, L.P.
a Delaware limited partnership LANDLORD
AND: LABTEC ENTERPRISES, INC.
a Washington corporation TENANT
Tenant wishes to lease from Landlord the following described
property, hereinafter referred to as "the Premises":
Approximately 14,335 rentable square feet of office space
located in Building No. 8, Columbia Tech Center, 1499 S.E. Tech Center Drive,
Suite 350, Vancouver, Washington 98683 and as further described on the attached
Exhibit A, B and C.
If the Premises consist of a portion but not all of a
building, the building housing the Premises is hereinafter referred to as "the
Building."
1. TERM.
The Lease shall be for a term of 84 calendar months plus the
partial month, if any, in which this Lease commences. The parties anticipate
that the term shall commence on August 1, 1997 and continue through July 31,
2004; however, the term shall actually commence upon such earlier date that
Landlord delivers possession. If the term commences on a date different than the
date set forth above, Landlord and Tenant shall execute a supplemental agreement
setting forth the commencement date and termination date.
2. DELIVERY OF POSSESSION.
Delivery of possession shall occur when Tenant actually
occupies the Premises or when the Premises are available for occupancy by Tenant
with all work to be performed by Landlord substantially completed. Landlord
shall have no liability for delays in delivery of possession caused by labor
disputes, shortages of materials, acts of God, or other causes beyond Landlord's
reasonable control. If Landlord consents, Tenant may occupy the Premises prior
to such commencement date on a rent free basis and compliance with all terms of
this Lease. Tenant may cancel this Lease without liability if possession of the
Premises is not delivered on or before October 1, 1997.
3. RENT.
3.1. Tenant shall pay, on the first day of each month, base
rent for the Premises according to the following schedule:
Base Rent
Period Per Month
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August 1, 1997 through July 31, 2002 $22,697.00
August 1, 2002 through July 31, 2004 $25,086.00
3.2. Rent for any partial month during the lease term shall be
prorated to reflect the number of days during the partial month that Tenant
occupied the Premises. Rent for the first month of the lease term shall be paid
on August 1, 1997.
3.3. In addition to base rent, Tenant shall pay, as additional
rent, escalation payments computed according to Paragraph 19 hereof.
3.4. On or before August 1, 1997, Tenant shall pay the base
rent for the first full month of the lease term and in addition has paid the sum
of Twenty-five Thousand Eighty-six and No/100 Dollars ($25,086.00) as a security
deposit. The deposit shall be held by Landlord to secure all payments and
performances due from Tenant under this Lease. Landlord may commingle the
deposit with its funds and shall owe no interest on the deposit. Landlord may
apply the deposit to the cost of performing any obligation which Tenant fails to
perform within the time required by this Lease, but such application by Landlord
shall not be the exclusive remedy for Tenant's default. If the deposit is
applied by Landlord, Tenant shall on demand pay the sum necessary to replenish
the deposit to its original amount. To the extent not applied by Landlord, the
deposit shall be refunded to Tenant within thirty (30) days after expiration of
the lease term or, at Landlord's option, applied against the base rent for the
last month of the term.
4. USE OF THE PREMISES.
4.1. Tenant shall use the Premises as business offices for the
following business and for no other purpose without first obtaining Landlord's
prior written consent, which consent shall not be unreasonably withheld or
delayed:
General office and a sound room for testing of
Tenant's products.
4.2. In connection with its use, Tenant shall comply with all
applicable laws, ordinances, and regulations of any public authority and shall
not annoy, obstruct, or interfere with the rights of other tenants of the
Building. Tenant shall create no nuisance nor allow any objectionable liquid or
noise to be emitted from the Premises. Tenant shall store no materials nor
conduct any activities that will increase Landlord's fire insurance rates for
the Premises.
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4.3. Tenant shall install in the Premises only such machinery
as is customary for general office use and shall not overload the floors or
electrical circuits of the Premises. Landlord has approved in advance the
installation of any power-driven machinery such as electronic data processing
equipment or other machinery not customary for normal office use. Landlord may
select a qualified electrician whose opinion will control regarding electrical
circuits and a qualified engineer or architect whose opinion will control
regarding floor loads. If machinery installed by Tenant generates heat, any
additional air conditioning desired by Tenant shall be at Tenant's expense.
4.4. No signs, awnings, antennas, or other apparatus shall be
painted on or attached to the Building or on any glass or woodwork of the
Premises without Landlord's written approval as to design, size, location, and
color. All signs installed by Tenant shall be removed upon termination of this
Lease with the sign location restored to its former state. Landlord shall, at
its sole cost and expense, provide interior directory and suite identity signs
in a design and format of Landlord's choosing.
5. UTILITIES AND SERVICES.
5.1. As used in this Paragraph 5, "Normal Business Hours"
shall mean 7 a.m. through 6 p.m., Monday through Friday and 8 a.m. through 12
p.m. on Saturdays.
5.2. Landlord shall, at its expense, furnish Tenant with the
following services and utilities of quality and quantity customary in comparable
office buildings in the City of Vancouver, Washington:
5.2.1. Elevator service during Normal Business
Hours of the Building.
5.2.2. Heating and air conditioning to maintain a
temperature condition which in Landlord's judgment provides for comfortable
occupancy of the Premises during Normal Business Hours, provided Tenant complies
with Landlord's instructions regarding use of drapes and thermostats and Tenant
does not utilize heat generating machines or equipment which affect the
temperature otherwise maintained by the air conditioning system. Tenant may
request heating and air conditioning during other than Normal Business Hours or
on Sundays, or holidays. The cost of such additional service shall be borne by
Tenant at reasonable rates established by Landlord, which reasonable rates will
be provided upon request by Tenant.
5.2.3. Water for drinking, lavatory, and toilet
purposes.
5.2.4. Electrical current for lighting and operation
of customary office machines.
5.2.5. Janitorial service after 5:30 p.m., five days
a week.
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5.3. Tenant shall comply with all government laws or
regulations regarding the use or reduction of use of utilities on the Premises.
If Tenant's future use of the Premises results in a material increase in the
amount of electricity required over the amount required at the commencement of
the lease term, or beyond that required for Normal Business Hours, then Tenant
shall pay a reasonable charge for such increase in electricity requirements when
requested to do so by Landlord.
5.4. Landlord does not warrant that any of the services and
utilities referred to above will be free from interruption. Interruption of
services and utilities shall not be deemed an eviction or disturbance of
Tenant's use and possession of the Premises or render Landlord liable to Tenant
for damages, or relieve Tenant from performance of Tenant's obligations under
this Lease, but Landlord shall take all reasonable steps to correct any
interruptions in service. If such interruption of services and utilities is due
to Landlord's negligent or intentional act or omission, then rent shall be
reduced during the period of said interruption to the extent the Premises are
not reasonably usable for the use permitted by this Lease because of such
interruption of services and utilities.
6. MAINTENANCE BY LANDLORD.
6.1. Landlord shall repair and maintain the Building
structure, foundation, roof, gutters, exterior walls, halls, stairways and
entryway, and common passageways in sound, clean, and serviceable condition.
Landlord shall also repair, maintain and replace, as necessary, the elevators,
heating and air-conditioning machinery, door and window hardware, plumbing,
switches, light fixtures, and wiring and shall replace exterior glass breakage.
Repair or replacement due to damage caused by Tenant's negligent or intentional
acts or acts in breach of this Lease shall be at Tenant's expense.
6.2. Landlord shall have the right to erect scaffolding and
other apparatus necessary for the purpose of making required repairs. Landlord
shall have no liability for failure to perform required maintenance and repair
unless notice of the needed maintenance or repair is given by Tenant and
Landlord fails to remedy the problem within a reasonable time. Landlord shall
have no liability for interference with Tenant's use by needed repairs and
installations provided these are performed in a manner so as to cause a
reasonable minimum of interference to Tenant. Tenant shall have no claim against
Landlord for any interruption or reduction of services or interference with
Tenant's occupancy caused by circumstances beyond Landlord's reasonable control,
and no such interruption or reduction shall be construed as a constructive or
other eviction of Tenant.
7. MAINTENANCE AND ALTERATIONS BY TENANT.
7.1. Tenant shall maintain the interior of the Premises in
neat, clean, and good condition at all times and shall repair all damages to the
Premises caused by Tenant's use, but Tenant shall not be required to repair
normal wear resulting from the ordinary use for which the Premises were leased.
Tenant shall replace all interior broken glass in the Premises with glass of the
same quality.
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7.2. Tenant shall not make any alterations, additions, or
improvements to the Premises, change the color of the interior, or install any
wall or floor covering without Landlord's prior written consent, which consent
shall not be unreasonably withheld or delayed. Any such additions, alterations,
or improvements, except for unattached movable trade fixtures, shall at once
become part of the realty and belong to Landlord unless the terms of the
applicable consent provide otherwise. Notwithstanding the foregoing, if during
the term of the Lease or any extensions thereof Tenant should install any trade
fixtures within the Premises, Tenant may, at its sole cost and expense, remove
such fixtures, and if Tenant removes such fixtures, Tenant shall, at its sole
cost and expense, restore the Premises to its original condition.
8. TENANT'S INDEMNIFICATION; LIABILITY INSURANCE.
8.1. Tenant shall not allow any liens to attach to the
Premises as a result of its activities. Tenant shall indemnify and defend
Landlord from any claim, liability, damage, or loss arising out of any activity
on the Premises by Tenant, its agents, or invitees or resulting from Tenant's
failure to comply with any term of this Lease.
8.2. Tenant shall carry general liability insurance on an
occurrence basis with combined single limits of not less than $1,000,000. Such
insurance shall be provided by an insurance carrier reasonably acceptable to
Landlord and shall be evidenced by a certificate delivered to Landlord stating
that the coverage will not be canceled or materially altered without ten (10)
days' advance written notice to Landlord. Landlord shall be named as an
additional insured on such policy.
9. PROPERTY DAMAGE; SUBROGATION WAIVER.
9.1. If fire or other casualty causes damage to the Building
or the premises in an amount exceeding thirty (30%) percent of the full
construction-replacement cost of the Building or Premises, respectively,
Landlord may elect to terminate this Lease as of the date of the damage by
notice in writing to Tenant within thirty (30) days after such date. Otherwise,
Landlord shall promptly repair the damage and restore the Premises to their
former condition as soon as practicable. Rent shall be reduced during the period
to the extent the Premises are not reasonably usable for the use permitted by
this Lease because of such damage and required repairs.
9.2. Landlord shall be responsible for insuring the Building,
and Tenant shall be responsible for insuring its personal property and trade
fixtures located on the Premises.
9.3. Neither party shall be liable to the other for any loss
or damage caused by water damage, sprinkler leakage, or any of the risks covered
by a standard fire insurance policy with extended coverage and sprinkler leakage
endorsements, and there shall be no subrogated claim by one party's insurance
carrier against the other party arising out of any such loss.
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10. CONDEMNATION.
If a condemning authority takes the entire Building or a
portion sufficient to render the Premises unsuitable for Tenant's use, then
either party may elect to terminate this Lease effective on the date that
possession is taken by the condemning authority. Otherwise, Landlord shall
proceed as soon as practicable following the taking to restore the remainder of
the Building. Rent shall be reduced during the period of restoration to the
extent the Premises are not reasonably usable by Tenant. Rent shall be reduced
for the remainder of the term in an amount proportionate to the reduction in
area of the Premises caused by the taking. All condemnation proceeds shall
belong to Landlord, except for any sums specifically awarded to Tenant for
relocation expenses.
11. ASSIGNMENT AND SUBLETTING.
11.1. Tenant shall not assign its interest under this Lease or
sublet the Premises without first obtaining Landlord's consent in writing, which
consent shall not be unreasonably withheld or delayed. No consent in one
instance shall prevent this provision from applying to each subsequent instance.
This provision shall apply to all transfers by operation of law including, but
not limited to, mergers and transfers of 51% or more of the voting stock of
Tenant. No assignment shall relieve Tenant of its obligation to pay rent or
perform other obligations required by this Lease and no consent to one
assignment or subletting shall be a consent to any further assignment or
subletting. If Tenant assigns this Lease or sublets the Premises for an amount
in excess of the rent called for by this Lease, one-half of such excess shall be
paid to Landlord promptly as it is received by Tenant.
11.2. Subject to the above limitations on transfer of Tenant's
interest, this Lease shall bind and inure to the benefit of the parties, their
respective heirs, successors, and assigns.
11.3. Landlord shall not unreasonably withhold its consent to
assignment or subletting to a financially solvent party for the use permitted
herein, provided that any consideration paid for the assignment or one-half of
any rentals received from any subtenant in excess of the rental specified in
this Lease shall be paid to Landlord within five (5) days after it is received
by Tenant.
12. DEFAULT.
12.1. Any of the following shall constitute a default by
Tenant under this Lease:
12.1.1. Tenant's failure to pay rent or any other
charge under this Lease within five (5) business days after it is due, or
failure to comply with any other term or condition within twenty (20) business
days following written notice from Landlord specifying the noncompliance. If
such noncompliance cannot be cured within the twenty (20) business day period,
this provision shall be satisfied if Tenant commences correction within such
period and thereafter proceeds in good faith and with reasonable diligence to
effect compliance as soon as possible. Time is of the essence.
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12.1.2. Tenant's assignment for the benefit of its
creditors; Tenant's commencement of proceedings under any provision of any
bankruptcy or insolvency law or failure to obtain dismissal of any petition
filed against it under such laws within the time required to answer; or the
appointment of a receiver for Tenant's properties.
12.2. Landlord's failure to give notice as to any failure of
compliance by Tenant shall not be a continuing waiver by Landlord as to the
default.
13. REMEDIES FOR DEFAULT.
In case of default as described in Paragraph 12 above,
Landlord shall have the right to the following remedies which are intended to be
cumulative and in addition to any other remedies provided under applicable law:
13.1. Terminate this Lease without relieving Tenant from its
obligation to pay damages.
13.2. Retake possession of the Premises by summary proceedings
or otherwise, in which case Tenant's liability to Landlord for damages shall
survive the tenancy. Landlord may, after such retaking of possession, relet the
Premises upon any reasonable terms. No such reletting shall be construed as an
acceptance of a surrender of Tenant's leasehold interest.
13.3. Recover damages caused by Tenant's default which shall
include reasonable attorneys' fees at trial and on any appeal therefrom.
Landlord may sue periodically to recover damages as they occur throughout the
lease term, and no action for accrued damages shall bar a later action for
damages subsequently accruing. Landlord may elect in any one action to recover
accrued damages plus damages attributable to the remaining term of the Lease
equal to the difference between the rent under this Lease and the reasonable
rental value of the Premises for the remainder of the term, discounted to the
time of judgment at the rate of six (6%) percent per annum.
13.4. Make any payment or perform any obligation required of
Tenant so as to cure Tenant's default, in which case Landlord shall be entitled
to recover all amounts so expended from Tenant, plus interest at the rate of ten
(10%) percent per annum from the date of the expenditure.
14. SURRENDER ON TERMINATION.
14.1. On expiration or early termination of this lease, Tenant
shall deliver all keys to Landlord and surrender the Premises broom clean and in
the same condition as at the commencement of the term subject only to
depreciation and wear from ordinary use. Tenant may remove all of its
furnishings and trade fixtures that remain its property and restore all damage
resulting from such removal. Failure to remove shall be an abandonment of the
property, and Landlord may dispose of it in any manner without liability.
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14.2. If Tenant fails to vacate the Premises when required,
including failure to remove all its personal property, Landlord may elect
either: (i) to treat Tenant as a tenant from month to month, subject to all
provisions of this Lease except the provision for term and at a base rental of
one-hundred twenty (120%) percent of that specified in this Lease; or (ii) to
eject Tenant from the Premises and recover damages caused by wrongful holdover.
15. REGULATIONS.
Landlord shall have the right to make and enforce reasonable
regulations consistent with this Lease for the purpose of promoting safety,
order, cleanliness, and good service to all tenants of the Building. Copies of
all such reasonable regulations shall be furnished to Tenant and shall be
complied with as if part of this Lease.
16. ACCESS.
16.1. Landlord does not undertake to provide security for the
Building. However, during times other than 7 a.m. through 6 p.m., Monday through
Friday Tenant's officers and employees or those having business with Tenant may
be required to identify themselves or show passes in order to gain access to the
Building. Landlord shall have no liability for refusing to permit access by
anyone.
16.2. Landlord shall have the right to enter upon the Premises
by passkey or otherwise after giving Tenant twenty-four (24) hour verbal notice,
excepting that Landlord shall not be required to give such notice in times of
emergency, to determine Tenant's compliance with this Lease, to perform
necessary maintenance and repairs to the Building or the Premises, or to show
the Premises to any prospective tenant or purchasers. Such entry shall be at
such times and in such manner as not to interfere with the reasonable business
use of the Premises by Tenant.
16.3. Tenant shall move bulky articles in and out of the
Building or make independent use of the elevators only at times approved by
Landlord following at least 24 hours' written notice to Landlord of the intended
move. Landlord will not unreasonably withhold its consent under this paragraph.
17. NOTICES.
Notices between the parties relating to this Lease shall be in
writing, effective when delivered, or if mailed, effective on the second day
following mailing, postage prepaid, to the address for the party stated in this
Lease or to such other address as either party may specify by notice to the
other. Rent shall be payable to Landlord in the same manner at the address for
the party stated in this Lease, but shall be considered paid only when received.
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18. MORTGAGE OR SALE BY LANDLORD; ESTOPPEL CERTIFICATES.
18.1. This Lease is and shall be prior to any mortgage or deed
of trust ("Encumbrance") recorded after the date of this Lease and affecting the
Building and the land upon which the Building is located. However, if any lender
holding an Encumbrance secured by the Building and the land underlying the
Building requires that this Lease be subordinate to the Encumbrance, then Tenant
agrees that this Lease shall be subordinate to the Encumbrance if the holder
thereof agrees in writing with Tenant that so long as Tenant performs its
obligations under this Lease no foreclosure, deed given in lieu of the
foreclosure, or sale pursuant to the terms of the Encumbrance, or other steps or
procedures taken under the Encumbrance shall affect Tenant's rights under this
Lease. If the foregoing condition is met, Tenant shall execute the written
agreement and any other documents required by the holder of the Encumbrance to
accomplish the purposes of this paragraph.
18.2. If the Building is sold as a result of foreclosure of
any Encumbrance thereon or otherwise transferred by Landlord or any successor,
Tenant shall attorn to the purchaser or transferee, and, after completion of the
sale as a result foreclosure proceedings, the transferor shall have no further
liability hereunder. Landlord shall remain obligated to Tenant for all
obligations arising under this Lease that are not transferred to the purchaser
or transferee as part of the sale as a result of foreclosure.
18.3. Either party shall within twenty (20) days after notice
from the other execute and deliver to the other party a certificate stating
whether or not this Lease has been modified and is in full force and effect and
specifying any modifications or alleged breaches by the other party. The
certificate shall also state the amount of monthly base rent, the dates to which
rent has been paid in advance, and the amount of any security deposit or prepaid
rent. Failure to deliver the certificate within the specified time shall be
conclusive upon the party of whom the certificate was requested that the Lease
is in full force and effect and has not been modified except as may be
represented by the party requesting the certificate.
19. ANNUAL RENT ESCALATION.
19.1. As used in this Paragraph 19, the following terms are
defined as follows:
19.1.1. "Base Year" shall mean the January 1 -
December 31, 1998.
19.1.2. "Tenant's Proportionate Share" shall mean a
fraction, the numerator of which is the number of useable square feet of office
space covered by this Lease and the denominator of which is the total number of
useable square feet of office space in the Building, whether or not such space
is actually rented. Tenant's Proportionate Share of Operating Expenses and of
Real Property Taxes relating to common facilities serving all of Columbia Tech
Center, shall be calculated on the portion of such expenses attributable to the
Building. As of the commencement date of the Lease, Tenant's proportionate share
is 20.08%, which is the ratio of 14,335 rentable
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square feet of the Premises divided by the 71,369 current rentable square feet
of space in the Building.
19.1.3. "Operating Expenses" shall mean all direct
costs of operation and maintenance of the Building as determined by generally
accepted accounting principles and shall include, but not be limited to, the
following costs: fees for permits and licenses relating to the Building, water
and sewer charges, insurance premiums, utilities, janitorial services, labor of
Building attendants, Building management fees (if any), maintenance of elevators
and mechanical systems, supplies, materials, equipment, and tools used in
Building maintenance, and upkeep of landscaping, common areas and common
facilities. Operating Expenses shall not include depreciation on the Building,
leasing commissions, or expenditures for capital improvements.
19.1.4. "Real Property Taxes" shall mean all taxes
and assessments, special or otherwise, levied upon the Building and the land
upon which the Building is located as well as on common areas serving all of
Columbia Tech Center, use or occupancy or similar taxes, taxes based on rent or
other income from the Building (computed as if Landlord's income from the
Building is Landlord's sole income) or any other tax, fee or excise of any kind
imposed on Landlord in lieu of existing or additional real property taxes and
assessments. Real Property Taxes shall include the cost of contesting the amount
or validity of any of the aforementioned Real Property Taxes.
19.2. If the Operating Expenses or the Real Property Taxes for
any fiscal year after the Base Year, as defined in Paragraph 19.1.1, exceed
those paid or incurred for the Base Year, then Tenant shall pay its
Proportionate Share of the increase in Operating Expenses or the increase in
Real Property Taxes prorated with respect to years in which this Lease is in
effect for less than the entire fiscal year, provided however, that the base
year amount for real property taxes shall be the amount payable in the real
estate tax year during which the term of this Lease commences, or in the first
year in which the Building is fully assessed. Commencing January 1 of the first
January 1 - December 31 fiscal year following the Base Year and for each year
thereafter, Landlord shall estimate in a reasonable manner the amount by which
Operating Expenses or Real Property Taxes are anticipated to increase for that
year over the Base Year amounts. Landlord shall compute Tenant's Proportionate
Share of such estimated increases, and one-twelfth of Tenant's Proportionate
Share of Operating Expenses increases and of Real Property Taxes increases shall
be paid by Tenant as additional rernt in connection with each monthly rent
payment. At the conclusion of each fiscal year after the Base Year Landlord
shall compute the actual Operating Expenses increases and Real Property Taxes
increases. If the estimated payments collected from Tenant are insufficient to
cover Tenant's Proportionate Share of the actual Operating Expenses increases or
Real Property Taxes increases, Tenant shall within twenty (20) days after
receipt of a billing from Landlord pay the difference. If Landlord's estimates
exceeded the amount of actual Operating Expenses increases or Real Property
Taxes increases, Landlord shall, at Tenant's option, either refund the excess to
Tenant or apply the excess towards reducing Tenant's Proportionate Share of
Operating Expenses increases or Real Property Taxes increases for the next
fiscal year in which the Lease is in effect.
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19.3. Notwithstanding the above, the increase in Tenant's
proportionate share of operating expenses shall not exceed four percent (4%)
annually, on a cumulative basis, for the term of this Lease, exclusive of real
estate taxes.
19.4. Landlord shall use its best efforts to complete its
computation of actual Operating Expenses increases and Real Property Taxes
increases by August following the fiscal year for which the computation is to be
made. Tenant shall pay any additional amounts or be entitled to refund of any
excess payments even if the lease term has expired and Tenant has vacated the
Premises at the time that Landlord's computation of actual Operating Expenses
and Real Property Taxes is made.
19.5. In no event shall Tenant be entitled to a refund for an
Operating Expenses or Real Property Taxes decrease below the Base Year amount.
20. INTEREST AND LATE CHARGES.
Rent not paid when due shall bear interest at the rate of ten
(10%) percent per annum until paid. Landlord may at its option impose a late
charge of $.05 for each $1.00 of rent for rent payments made more than ten (10)
days late in addition to interest and other remedies available for default.
21. DISPUTES - ATTORNEYS' FEES.
In the event of any litigation out of this Lease, the
prevailing party shall be entitled to recover from the other party, in addition
to all other relief provided by law or judgement, its reasonable costs and
attorneys' fees incurred both at and in preparation for trial and any appeal or
review, such amount to be as determined by the court(s) before which the matter
is heard. Disputes between the parties which are to be litigated shall be tried
before a judge without a jury.
22. SEVERABILITY.
If any provision of this Lease is held to be invalid,
unenforceable or illegal the remaining provisions shall not be affected and
shall be enforced to the fullest extent permitted by law.
23. LANDLORD'S LIABILITY.
23.1. Landlord warrants that so long as Tenant complies with
all terms of this Lease it shall be entitled to peaceable and undisturbed
possession of the Premises free from any eviction or disturbance by Landlord or
persons claiming through Landlord.
23.2. Landlord shall indemnify and defend Tenant from any
claim, liability, damage, or loss arising out of any activity on the Premises by
Landlord or its agents or resulting from Landlord's failure to comply with any
term of this Lease.
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23.3. All persons dealing with Pacific Realty Associates, L.P.
("Partnership") must look solely to the property and assets of Partnership for
the payment of any claim against Partnership or for the performance of any
obligation of Partnership as neither the general partner, limited partners,
employees, nor agents of Partnership assume any personal liability for
obligations entered into on behalf of Partnership (or its predecessors in
interest) and their respective properties shall not be subject to the claims of
any person in respect of any such liability or obligation. As used herein, the
words "property and assets of partnership" exclude any rights of Partnership for
the payment of capital contributions or other obligations to it by the general
partner or any limited partner in such capacity.
23.4. Landlord shall have no liability to Tenant for loss or
damages arising out of acts of other tenants.
24. FIRST RIGHT OF NOTICE.
24.1. Tenant shall have the First Right of Notice for the
adjacent 4,567 rentable square feet of space, Suite 300. Landlord shall notify
Tenant of the availability of such space, and Tenant shall have five (5)
business days to enter into good faith negotiations for the First Right of
Notice space in the event Landlord begins negotiations with a third party for
the First Right of Notice space. Landlord agrees to negotiate in good faith with
Tenant for the lease of such First Right of Notice space. Should Tenant choose
not to lease the First Right of Notice space, the First Right of Notice shall
remain in effect for any future availability of the First Right of Notice space.
25. PARKING.
Landlord, at no additional expense to Tenant, shall make
available for the non-exclusive use of Tenant, its officers, directors, visitors
and employees, automobile parking spaces at the rate of approximately four (4)
spaces for each one thousand (1,000) rentable square feet included within the
Premises.
26. AMERICANS WITH DISABILITIES ACT ("ADA").
Tenant shall, at its expense, comply with all applicable
provisions of Title I of the Americans with Disabilities Act of 1990 ("the Act")
related to its specific use of the Premises, and Landlord shall have no
responsibility for compliance with the provisions of Title I of the Act.
Landlord shall, at its expense, cause the Building to comply with, during the
term of this Lease and any extensions thereof, applicable provisions of Title
III of the Americans with Disabilities Act of 1990 which relate to architectural
barriers and communication barriers which are structural in nature so long as
such compliance is readily achievable, as the term readily achievable is defined
in the Act.
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27. LANDLORD'S WARRANTIES AND REPRESENTATIONS.
Landlord represents and warrants that, as of the commencement
of the lease term, to the best of Landlord's knowledge, without specific
inquiry: (i) the Premises are free from all latent and patent defects, and all
mechanical systems servicing the Premises (including, but not limited to,
electrical, plumbing, and heating, ventilating and air-conditioning) are in good
working order, condition and repair; and (ii) the Premises are in compliance
with all applicable federal, state and local laws, rules and regulations, and
ordinances including, but not limited to, all building codes and Title III of
the Americans with Disabilities Act of 1990.
28. BROKERAGE
Landlord and Tenant each warrants to the other that it has not
incurred any obligation for finders' fees or brokers' commissions in connection
with this transaction, except for the employment by Landlord of Mr. Kirk D.
Robertson of Norris, Beggs & Simpson as broker. Landlord shall be responsible
for the commission due the broker. Landlord and Tenant shall each indemnify the
other against any claim arising out of any breach of the warranty contained in
this paragraph.
29. TENANT IMPROVEMENTS.
Landlord shall, at its expense, construct improvements
generally as shown on the attached Exhibit C. The improvements shall be done in
a workmanlike manner and shall be to Columbia Tech Center tenant finish
standards.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the respective dates set opposite their signatures below, but this Agreement on
behalf of such party shall be deemed to have been dated as of the date first
above written.
LANDLORD:
PACIFIC REALTY ASSOCIATES, L.P.,
a Delaware limited partnership
By: PacTrust Realty, Inc.,
a Delaware corporation,
its General Partner
Date: 5-7 , 1997 By: /s/ David G. Hicks
----------------------- --------------------------------------
David G. Hicks
Vice President
Address for Notices/Rent Payments
to Landlord:
15350 S.W. Sequoia Parkway, #300-WMPC
Portland, OR 97224
TENANT:
LABTEC ENTERPRISES, INC.,
a Washington corporation
Date: April 30 , 1997 By: /s/ Richard E. James
-------------------- ---------------------------------
Name: Richard E. James
---------------------------------
Title: CEO
---------------------------------
Date: April 30 , 1997 By:
-------------------- ---------------------------------
Name:
---------------------------------
Title:
------------------------------
Address for Legal Notices to Tenant:
Columbia Tech Center
1499 SE Tech Center Drive Suite 350
Vancouver, WA 97683
-14-
Address for Invoices to Tenant:
Columbia Tech Center
1499 SE Tech Centre Drive Suite 350
Vancouver WA 97683
Tenant Employer Identification Number:
93-0830403
-15-
CORPORATE ACKNOWLEDGMENT On this the 30 day of April 19 97,
------- ------ ---
State of Washington before me,
County of Clark { SS.
M. Annette McRay
---------------------------------------
the undersigned Notary Public,
personally appeared
Richard E. James
---------------------------------------
__ personally known to me
__ proved to me on the basis of
satisfactory evidence
to be the person(s) who executed the
within instrument as CEO or on behalf
of the corporation therein named,
and acknowledged to me that the
corporation executed it.
WITNESS my hand and official seal.
/s/ M. Annette McRay
---------------------------------------
Notary's Signature
CORPORATE ACKNOWLEDGMENT On this the 2 day of May 19 97,
------ ----- ---
State of Oregon before me,
County of Washington { SS.
Cindy A. Carden
-----------------------------------------
the undersigned Notary Public,
personally appeared
David G. Hicks
-----------------------------------------
X personally known to me
___ proved to me on the basis of
satisfactory evidence to be the person(s)
who executed the within instrument as
Vice President or on behalf of the
corporation therein named, and
acknowledged to me that the corporation
executed it.
WITNESS my hand and official seal.
/s/ Cindy A. Carden
---------------------------------------
Notary's Signature
-16-
LABTEC ENTERPRISES, INCORPORATED
EXHIBIT "A"
[MAP OF COLUMBIA TECH CENTER]
-17-
LABTEC ENTERPRISES, INCORPORATED
EXHIBIT "B"
[MAP OF THE PREMISES AT COLUMBIA TECH CENTER]
-18-
EXHIBIT "C"
LABTEC ENTERPRISES, INCORPORATED
TENANT IMPROVEMENT OUTLINE SPECIFICATIONS
BUILDING NO. 8, COLUMBIA TECH CENTER
April 24, 1997
GENERAL - Items noted as "excluded" are items which Landlord will consider for
inclusion but are not included in a typical improvement and do not generally fit
within a building standard tenant improvement allowance.
CONCRETE: Existing concrete slab on grade shall be sawcut, removed, and
poured back for underslab utilities as necessary. Existing upper floor
slabs shall be core drilled for utilities as necessary; new
penetrations in upper floor slabs shall be sealed tight.
DEMISING WALLS: The cost of demising walls shall be split 50% to each
tenant which abuts such walls. Demising walls shall extend from floor
level to the underside of the ceiling grid. Demising walls shall be
constructed using 3-5/8" metal studs, sound attenuation batts, and 5/8"
smooth finished gypsum board on the occupied side. Black "Raco" top
track shall be used at connection of walls to ceiling. 4' wide, batt
insulation shall be provided above ceiling, centered over demising
walls.
EXTERIOR WALLS: Exterior walls shall receive 5/8" smooth finished
gypsum board over existing framing and thermal insulation. Black
"Half-Raco" top track to be used at connections of walls to ceilings.
CORRIDOR AND COMMON AREA WALLS: Corridor and other common area
walls (rest rooms, stairs, utility rooms, etc.) shall be constructed
using 2-1/2" metal studs, sound insulation, and 5/8" smooth finished
gypsum board each side. Shell construction includes framing,
insulation, and finished gypsum board on the corridor side of corridor
walls. Tenant improvement construction includes furnishing and
installation of smooth finished gypsum board on the tenant side of
corridor and common area walls.
BUILDING COLUMNS: Building structural columns shall be furred with
metal stud framing and 5/8" smooth finished gypsum board. Building
"wet" columns located at grids F-2 and P-11 to be furred, insulated
with high density sound insulation, and covered with 5/8" smooth
finished gypsum board. Black "Half-Raco" top track to be used at
connections of columns to ceilings.
-19-
INTERIOR PARTITIONS: Interior partitions shall extend from floor level
to the underside of ceiling grid. Interior partitions shall be
constructed using 3-5/8" metal studs and 5/8" smooth finished gypsum
board each side. Black "Raco" top track, shall be used at connection of
walls to ceiling.
INSULATION: Sound insulation shall be provided in walls surrounding
conference and lunch rooms. Sound insulation includes ceiling and walls
for the lab and test room spaces. Sound insulation around private
offices is excluded. A 4' wide band of fiberglass batt insulation shall
be provided above ceiling, centered above walls receiving insulation.
INTERIOR DOORS: Interior doors shall be nominal 3'-0" by 9'-0" solid
core birch (maple, or ribbon sappellie), stained to a dark cherry wood
finish ("Building Standard Finish") in Timely II door frames, factory
painted to approximate door color ("Building Standard Frame"). Door
hardware to include 2 pair butts, Schlage "AL" series (or similar)
lever latch, and wall stop for each door. Door hardware finish to be
polished brass.
RELITES: Thirteen (13) 3'-0" by 9'-0" relites shall be provided per
tenant improvement plan. Relites shall include 1/4" tempered glass in
Timely II frames, factory painted to match door frames.
SUITE ENTRY: An allowance of $2,000.00 has been provided for the suite
entry. Suite entry is subject to approval by the City of Vancouver.
Suite entry shall include a nominal 3'-0" by 9'-0" solid core birch
(maple, or ribbon sappellie) door, stained to Building Standard Finish
in Building Standard Frame. Door hardware to include closer, butts,
Schlage "D" series (or similar) lever lock, and stop. Door hardware
finish to be polished brass/polished chrome. Glass door, card entry
systems, and special access systems are excluded.
FOLDING PARTITIONS AND OPERABLE WALLS: Folding partitions and
operable walls are excluded.
CEILINGS: The acoustical ceiling suspension system shall be installed
in a 4' by 4' grid, and ceiling tile and remaining tee's supplied under
building shell construction. Typical tenant area construction includes
installation of 2' by 2' tegular edge ceiling tile (Armstrong Minatone
#705 Fissured) and necessary tee's in the building shell ceiling grid.
Ceiling construction for the lab and test rooms consist of 5/8" gypsum
board fastened to 3-5/8" metal studs.
PAINTING: All interior walls shall receive primer and two coats of
finish paint. Paint color is to match approved draw downs.
-20-
WALL COVERING: Vinyl, fabric, tile and other wall coverings are
excluded.
FLOOR COVERINGS: Floor covering colors shall be selected by Tenant from
Landlord's standard finish options. Carpet shall be cut pile or loop.
Cut pile carpet shall be installed on carpet pad. VCT shall be
installed in lunch rooms, copy rooms, storage rooms and other
appropriate locations. Sheet vinyl flooring is excluded. Rubber base to
be 4" in continuous lengths. Coved base to be used in areas with
resilient flooring; flat base to be used in carpeted areas. Quarry or
ceramic tiles, wood flooring, raised computer floors, and other special
floor finishes are excluded.
WINDOW COVERINGS: Building Standard window covering (off-white, non-
perforated, vertical louver blinds) shall be provided at exterior
windows. Window coverings are excluded for interior relites.
CABINETS AND MILLWORK: A $3500.00 allowance for a reception desk has
been provided. Approximately 30' of base cabinets and 8' of upper
cabinets shall provided for the lunch room, kitchenette and coffee bar
areas. Cabinets to be constructed to A.W.I. standards with plastic
laminate tops, fronts, and sides, color as selected by Tenant. Cabinet
interiors shall be constructed of melamine or standard low pressure
laminate. Concealed hinges, heavy-duty drawer hardware, and wire pulls
shall be included for all drawers or doors. One (1) 4' x 4' plywood
phone board is included. Wall paneling, wood base, shelving, and other
special millwork items are excluded.
APPLIANCES: One (1) dishwasher is included in the lunch room per tenant
plans and specifications. Refrigerators, microwave ovens, and vending
machines, coffee makers or other similar equipment are excluded.
FURNITURE AND ACCESSORIES: Furniture, coat hooks, desk partitions, tack
boards, projection screens, fire extinguishers and cabinets, and other
miscellaneous accessories are excluded.
SIGNAGE: Interior and exterior signage are excluded.
PLUMBING: Plumbing within tenant space is included for the lunch room,
kitchenette and coffee bar. Plumbing shall be connected to existing
plumbing services. All waste and vent piping to be cast iron. When
used, typical lunch room sink to be Elkay CR2522 with Delta 100 faucet.
FIRE PROTECTION: Fire protection system shall be modified as required
for tenant improvement layout. Building shell fire protection system
includes service to the building and overhead sprinkler piping. Tenant
improvement fire protection work
-21-
includes the addition of "drops" to ceilings and chrome, semi-recessed
sprinkler heads. Special fire suppression systems such as intergen or
preaction systems are excluded.
H.V.A.C.: Heating, ventilation, and air conditioning systems shall be
extended to serve the tenant improvement layout. The building includes
a closed loop, water- source heat pump system with high efficiency
cooling tower and boiler. System includes DDC automated control with
central panel operation of energy management functions. Modulating
outside air supply and exhaust is managed by the DDC controller and
ducted to and from each zone. Supply and return air main trunk ducts
and main water loop piping shall be provided under the building shell
HVAC work. Heat pumps, thermostats, duct extensions, connections to the
water loop, and supply and return air diffusers shall be added under
tenant improvement construction. Tenant spaces to be connected to
dedicated channel of the DDC control system with programmable override
for after hour use. Tenant HVAC zones to be provided 1 each per
approximate 1000 square feet. Each zone to be thermostatically
controlled. Special computer room, conference room, and lunch room
cooling and ventilation are excluded.
ELECTRICAL: Building shell electrical work includes the main building
electrical service with wires in conduit to electrical distribution
panels on each floor. Tenant improvement electrical work includes
breakers in shell electrical panels, extension of power from the
electrical room to the tenant space, the addition of any tenant
subpanels within the space, and furnishing and installation of lighting
and power outlets.
Lighting shall be provided using 2' by 4' fluorescent light
fixtures with 18-cell parabolic lenses. Wattage available for
lighting for each tenant space is governed by the State of
Washington Energy Code. Special architectural lighting (track
lighting, spot lighting, down lights, wall sconces, etc.) is
excluded. Dual level light switching is excluded. Lighting
lamps, ballasts, and controls shall meet electrical energy
consumption code requirements. Duplex outlets shall be
provided 1 each per 120 square feet of Tenant area.
Power connections to Tenant desk partitions to be provided at
wall, floor, or power pole locations only; wiring within desk
partitions is excluded. Mud rings with pull strings to the
area above ceiling shall be provided 1 each per 240 square
feet of Tenant area for Tenant installed telephone and data
wiring. Cover plates and receptacles for telephone and data
wiring shall be provided by the Tenant. Generators,
uninterruptable power supplies, and special electrical work
for computer and phone systems are excluded.
-22-
FIRE ALARM: Fire alarm and smoke detection systems shall be provided if
required by the local governing jurisdictions.
SECURITY SYSTEMS: A building entry security system is provided by
Landlord as part of the Building Shell. Tenant-specific security
systems are excluded.
TELEPHONE AND COMPUTER SYSTEMS: Telephone, data, and computer system
equipment and wiring are excluded. Tenant phone board and equipment to
be located within the tenant area.
-23-
LEASE AMENDMENT
DATED: FEBRUARY 4, 1998
BETWEEN: COLUMBIA TECH CENTER, L.L.C.,
a Washington limited liability company LANDLORD
AND: LABTEC, INC.,
a Delaware corporation TENANT
By written lease dated April 24, 1997, Tenant leased from
Landlord approximately 14,335 rentable square feet of office space located in
Building No. 8, Columbia Tech Center, 1499 S.E. Tech Center Place, Suite 350,
Vancouver Washington 98683 (hereinafter referred to as the "Premises"). The
Lease was executed by Pacific Realty Associates, L.P., a Delaware limited
partnership. The Landlord in the Lease should have been Columbia Tech Center,
L.L.C., a Washington limited liability company. Such document is hereinafter
referred to as the "Lease." The Lease expires July 31, 2004.
Tenant now wishes to extend the term of the Lease.
NOW, THEREFORE, the parties agree as follows:
1. The name of the Landlord in the Lease is changed to Columbia Tech
Center, L.L.C., a Washington limited liability company.
2. The Lease shall be extended for an additional 21 months commencing
August 1, 2004 and continuing through April 30, 2006.
3. Base rent shall remain the same at $25,086.00 per month commencing
August 1, 2004 and continuing through the extended term.
4. Except as expressly modified hereby, all terms of the Lease shall
remain in full force and effect and shall continue through the extended term.
-23-
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the respective dates set opposite their signatures below, but this
Agreement on behalf of such party shall be deemed to have been dated as of the
date first above written.
LANDLORD:
COLUMBIA TECH CENTER, L.L.C.,
a Washington limited liability company
By: Pacific Realty Associates, L.P.,
a Delaware limited partnership
its Member
By: PacTrust Realty, Inc.,
a Delaware corporation,
its General Partner
Date: 2-10 , 1998 By: /s/ David G. Hicks
--------------- -----------------------------------
David G. Hicks
Vice President
TENANT:
LABTEC, INC.,
a Delaware corporation
Date: 2-6 , 1998 By: /s/ J. E. Hillman
---------------- --------------------------------
Name: J. E. Hillman
-------------------------------
Title: CFO
-------------------------------
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