EXHIBIT 10.13
LEASE
DATED: February 4, 1998
BETWEEN: COLUMBIA TECH CENTER, L.L.C.,
a Washington limited liability company LANDLORD
AND: LABTEC, INC.,
a Delaware corporation TENANT
Tenant wishes to lease from Landlord the following described
property, hereinafter referred to as "the Premises":
Approximately 60,000 square feet of warehouse and office space
located in Building No. 28, Columbia Tech Center, and generally as located on
the attached Exhibit A.
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."
Landlord leases the Premises to Tenant for a term of 84 months
commencing May 1, 1999 and continuing through April 30, 2006. Base rent shall be
according to the following schedule:
Base Rent
Period Per Month*
May 1, 1999 through April 30, 2002 $20,760.00
May 1, 2002 through April 30, 2005 $22,006.00
May 1, 2005 through April 30, 2006 $23,326.00
*Based upon 60,000 total square feet of space and 600 square
feet of office space within the Premises. Base rent amounts may be modified
after all tenant improvements are completed if the final office space square
footage is other than 600 square feet. In the event that the final office square
footage feet is greater than 600 square feet, then the base rent shall be
increased by a sum equal to the difference between 600 square feet and the final
office square footage, multiplied by $7.20 per year.
Rent for the first month of the Lease term shall be paid upon
Landlord delivery of possession of the Premises to Tenant. All rent, including
base rent together with the charges, taxes and expenses to be paid to Landlord
specified in Paragraphs 3 and 4 of this Lease, is payable in advance on the
first day of each calendar month. If Landlord consents, Tenant may occupy the
Premises prior to such commencement date upon payment of rent on a prorated
basis and compliance with all terms of this Lease.
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Delivery of possession shall occur when the Premises are
occupied by Tenant or are ready to be occupied by Tenant with all work to be
performed by Landlord substantially completed. No notice shall be required from
Landlord if the Premises are ready on the date set for commencement of the term
or on the first business day thereafter. If Landlord is unable to deliver
possession of the Premises to Tenant because of strikes, acts of God, or any
other cause beyond Landlord's control, then Tenant may take possession when
Landlord notifies Tenant that the Premises are ready for possession, and the
term of this Lease shall commence on the first day of the first month following
such date and continue for the specified number of months thereafter,
notwithstanding the commencement and termination dates stated above. Tenant
shall owe no rent until the Premises are ready for possession. Landlord shall
have no liability for such delays in delivery of possession, and neither party
shall have the right to terminate except that Landlord may cancel this Lease
without liability if permission to construct, use, or furnish necessary
utilities to the Premises is denied or revoked by any governmental agency or
public utility with such authority. Notwithstanding the foregoing, if Landlord
has not delivered possession of the Premises on or before July 1, 1999, Tenant
may rescind this Lease by notice in writing to Landlord given at any time
thereafter prior to the date on which possession is tendered by Landlord.
This Lease is subject to the following additional terms to
which the parties agree:
1. Use of the Premises.
1.1 Tenant shall use the Premises for the purpose of
conducting 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 warehouse, office, shipping and receiving for
Tenant's products.
If such use is prevented by any law or government
regulation, Tenant may use the Premises for other reasonable uses.
1.2 In connection with its use, Tenant shall at its expense
comply with all applicable laws, ordinances, and regulations of any public
authority, including those requiring alteration of the Premises because of
Tenant's specific use; shall create no nuisance nor allow any objectionable
liquid, odor, or noise to be emitted from the Premises; shall store no gasoline
or other highly combustible materials on the Premises which would violate any
applicable fire code or regulation nor conduct any operation that will increase
Landlord's fire insurance rates for the Premises; and shall not overload the
floors or electrical circuits of the Premises. Landlord shall have the right to
approve the installation of any power-driven machinery by Tenant and 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. Allowable ground floor load shall be 500 pounds per square foot. Landlord
agrees that, as of the commencement of this Lease, the Premises are acceptable
for Tenant's use as shown in Paragraph 1.
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1.3 Tenant may erect a sign stating its name, business, and
product after first securing Landlord's written approval, which approval shall
not be unreasonably withheld or delayed of the size, color, design, wording, and
location, and all necessary governmental approvals. No signs shall be painted on
the Building or exceed the height of the Building. All signs installed by Tenant
shall be removed upon termination of this Lease with the sign location restored
to its former state.
1.4 Tenant shall make no alterations, additions, or
improvements to the Premises exceeding a cost of $1,000.00 or change the color
of the exterior without Landlord's prior written consent, which consent shall
not be unreasonably withheld or delayed and without a valid building permit
issued by the appropriate governmental agency. Upon termination of this Lease,
any such alterations, additions, or improvements (including without limitation
all electrical, lighting, plumbing, heating and air-conditioning equipment,
doors, windows, partitions, drapery, carpeting, shelving, counters, and
physically attached fixtures) shall at once become part of the realty and belong
to Landlord unless the terms of the applicable consent provide otherwise, or
Landlord requests that part or all of the additions, alterations, or
improvements be removed. In such case, Tenant shall at its sole cost and expense
promptly remove the specified additions, alterations, or improvements and repair
and restore the Premises to its original condition. Notwithstanding the
foregoing, if during the term of this 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.
2. Security Deposit.
Upon execution of this Lease, Tenant shall deposit with
Landlord the sum of $23,326.00, hereinafter referred to as "the Security
Deposit," to secure the faithful performance by Tenant of each term, covenant,
and condition of this Lease. If Tenant shall at any time fail to make any
payment or fail to keep or perform any term, covenant, and condition on its part
to be made or performed or kept under this Lease, Landlord may, but shall not be
obligated to and without waiving or releasing Tenant from any obligation under
this Lease, use, apply or retain the whole or any part of the Security Deposit
(i) to the extent of any sum due to Landlord; or (ii) to make any required
payment on Tenant's behalf; or (iii) to compensate Landlord for any loss,
damage, attorneys' fees, or expense sustained by Landlord due to Tenant's
default. In such event, Tenant shall, within five (5) days of written demand by
Landlord, remit to Landlord sufficient funds to restore the Security Deposit to
its original sum; Tenant's failure to do so shall be a material breach of this
Lease. Landlord shall not be required to keep the Security Deposit separate from
its general funds, and Tenant shall not be entitled to interest on such deposit.
Should Tenant comply with all of the terms, covenants, and conditions of this
Lease and at the end of the term of this Lease leave the Premises in the
condition required by this Lease, then the Security Deposit, less any sums owing
to Landlord, shall be returned to Tenant (or, at Landlord's option, to the last
assignee of Tenant's interests hereunder) within thirty (30) days after the
termination of this Lease and vacancy of the Premises by Tenant.
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3. Utility Charges; Maintenance.
3.1 Tenant shall pay when due all charges for electricity,
natural gas, water, garbage collection, janitorial service, sewer, and all other
utilities of any kind furnished to the Premises during the lease term. If
charges are not separately metered or stated, Landlord shall apportion the
utility charges on an equitable basis. Landlord shall have no liability
resulting from any interruption of utility services caused by fire or other
casualty, strike, riot, vandalism, the making of necessary repairs or
improvements, or any other cause beyond Landlord's reasonable control. 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. Tenant shall control the temperature in the Premises to prevent
freezing of any sprinkler system.
3.2 Landlord shall repair and maintain the roof, gutter,
downspouts, exterior walls, building structure, foundation, exterior paved
areas, and curbs of the Premises in good condition. Except for such obligations
of Landlord, Tenant shall keep the Premises neatly maintained and in good order
and repair. Tenant's responsibility shall include maintenance and repair of the
electrical system, plumbing, drainpipes to sewers, air-conditioning and heating
systems, overhead and personnel doors, and the replacement of all broken or
cracked glass with glass of the same quality. Tenant shall refrain from any
discharge that will damage the septic tank or sewers serving the Premises.
Landlord shall grant Tenant a two (2) year warranty for the heating,
ventilating, and air conditioning system, provided that Tenant contracts with a
reputable space contractor to provide proper maintenance for the system. Such
warranty shall be in effect for two (2) years from occupancy.
3.3 If the Premises have a separate entrance, Tenant shall
keep the sidewalks abutting the Premises or the separate entrance free and clear
of snow, ice, debris, and obstructions of every kind.
4. Taxes, Assessments, and Operating Expenses.
4.1 In conjunction with monthly rent payments, Tenant shall
each month pay a sum representing Tenant's proportionate share of real property
taxes and operating expenses for the Premises. Such amount shall annually be
estimated by Landlord in good faith to reflect actual or anticipated costs. Upon
termination of this Lease or annually during the term hereof, Landlord shall
compute its actual costs for such expenses during such period. Any overpayment
by Tenant shall be credited to Tenant, and any deficiency shall be paid by
Tenant within fifteen (15) days after receipt of Landlord's statement.
Landlord's records of expenses for taxes and operating expenses may be inspected
by Tenant at reasonable times and intervals.
4.2 Tenant's proportionate share of real property taxes shall
mean that percentage of the total assessment affecting the Premises which is the
same as the percentage which the rentable area of the Premises bears to the
total rentable area of all buildings covered by the tax statement.
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Tenant's proportionate share of operating expenses for the Building shall be
computed by dividing the rentable area of the Premises by the total rentable
area of the Building. If in Landlord's reasonable judgment either of these
methods of allocation results in an inappropriate allocation to Tenant, Landlord
shall select some other reasonable method of determining Tenant's proportionate
share. Landlord and Tenant agree that, for the first year of the term of this
Lease, Tenant's proportionate share of operating expenses and real property
taxes shall be no more than $.08 per square foot space within the Premises per
month. Notwithstanding the above, the increase in Tenant's proportionate share
of operating expenses shall not exceed three percent (3%) annually, on a
cumulative basis, for the term of this Lease and any extensions thereof,
exclusive of real estate taxes.
4.3 Real property taxes charged to Tenant hereunder shall
include all general real property taxes assessed against the Premises or payable
during the lease term, and any rent tax, tax on Landlord's interest under this
Lease, or any tax in lieu of the foregoing, whether or not any such tax is now
in effect. Tenant shall not, however, be obligated to pay any tax based upon
Landlord's net income.
4.4 Operating expenses charged to Tenant hereunder shall
include all usual and necessary costs of operating and maintaining the Premises,
Building, and any surrounding common areas including, but not limited to, the
cost of all utilities or services not paid directly by Tenant, property
insurance, property management, maintenance and repair of landscaping, parking
areas, and any other common facilities. Operating expenses shall not include
roof replacement or correction of structural deficiencies of the Building.
5. Parking and Storage Areas.
5.1 Tenant, its employees, and customers shall have the
exclusive right to use any private parking spaces immediately adjacent to the
Premises. Tenant shall control the use of such parking spaces so that there will
be no unreasonable interference with the normal traffic flow, and shall permit
no parking on any landscaped or unpaved surface. Under no circumstances shall
trucks serving the Premises be permitted to block streets.
5.2 Tenant shall not store any materials, supplies, or
equipment outside in any unapproved or unscreened area. If Tenant erects any
visual barriers for storage areas, Landlord shall have the right to approve the
design and location. Trash and garbage receptacles shall be kept covered at all
times.
6. Liability Insurance.
6.1 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
or within the Building or the common areas serving the Building, by Tenant, its
agents, or invitees or resulting from Tenant's failure to comply with any term
of this Lease.
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6.2 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.
6.3 Landlord shall indemnify and defend Tenant from any claim,
liability, damage, or loss arising out of the negligence or intentional
misconduct on the Premises or within the common areas serving the Premises by
Landlord or its agents.
7. Property Damage; Subrogation Waiver.
7.1 If fire or other casualty causes damage to the Building or
the Premises in an amount exceeding thirty percent (30%) 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.
7.2 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.
7.3 Landlord and Tenant each hereby releases the other, and
the other's partners, officers, directors, agents and employees, from any and
all liability and responsibility to the releasing party and to anyone claiming
by or through it or under it, by way of subrogation or otherwise, for all
claims, or demands whatsoever which arise out of damage or destruction of
property occasioned by perils which can be insured by an All Risk Property
Insurance Coverage Form. Landlord and Tenant grant this release on behalf of
themselves and their respective insurance companies and each represents and
warrants to the other that it is authorized by its respective insurance company
to grant the waiver of subrogation contained in this Paragraph 7.3. This release
and waiver shall be binding upon the parties whether or not insurance coverage
is in force at the time of the loss or destruction of property referred to in
this Paragraph 7.3.
8. Condemnation.
If a condemning authority takes the entire Premises or a
portion sufficient to render the remainder unsuitable for Tenant's use, then
either party may elect to terminate this Lease effective on the date that title
passes to the condemning authority. Otherwise, Landlord shall proceed as soon as
practicable to restore the remaining Premises to a condition comparable to that
existing at the time of the taking. Rent shall be abated during the period of
restoration to the extent the Premises are not reasonably usable by Tenant, and
rent shall be reduced for the remainder of the term in an amount
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equal to the reduction in rental value of the Premises caused by the taking. All
condemnation proceeds shall belong to Landlord.
9. Assignment and Subletting.
9.1 Tenant shall not assign its interest under this Lease nor
sublet the Premises without first obtaining Landlord's consent in writing, which
consent shall not be unreasonably withheld or delayed. This provision shall
apply to all transfers by operation of law or through 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 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.
9.2 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.
10. Default.
Any of the following shall constitute a default by Tenant
under this Lease:
10.1 Tenant's failure to pay rent or any other charge under
this Lease within ten (10) 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.
10.2 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.
11. Remedies for Default.
In case of default as described in Paragraph 10 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:
11.1 Terminate this Lease without relieving Tenant from its
obligation to pay damages.
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11.2 Retake possession of the Premises by summary proceedings,
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.
11.3 Recover damages caused by Tenant's default which shall
include reasonable attorneys' fees at trial and on any appeal therefrom.
Landlord may xxx 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.
11.4 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
percent (10%) per annum from the date of the expenditure.
12. Surrender on Termination.
12.1 On expiration or early termination of this Lease, Tenant
shall deliver all keys to Landlord, have final utility readings made on the date
of move out, and surrender the Premises clean and free of debris inside and out,
with all mechanical, electrical, and plumbing systems in good operating
condition, all signing removed and defacement corrected, and all repairs called
for under this Lease completed. The Premises shall be delivered in the same
condition as at the commencement of the term, subject only to depreciation and
wear from ordinary use. Tenant shall remove all of its furnishings and trade
fixtures that remain its property and all damage resulting from such removal.
Failure to remove said property shall be an abandonment of same, and Landlord
may dispose of it.
12.2 If Tenant fails to vacate the Premises when required,
Landlord may elect either to treat Tenant as a tenant from month to month,
subject to all provisions of this Lease except the provision for term, or to
eject Tenant from the Premises and recover damages caused by wrongful holdover.
13. Landlord's Liability.
13.1 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.
13.2 All persons dealing with Columbia Tech Center, L.L.C.
(the "Limited Liability Company") must look solely to the property and assets of
the Limited Liability Company for the payment of any claim against the Limited
Liability Company or for the performance of any obligation of the Limited
Liability Company as neither the officers, directors, employees, nor agents of
the
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Limited Liability Company assume any personal liability for obligations entered
into on behalf of the Limited Liability Company (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.
14. Mortgage or Sale by Landlord; Estoppel Certificates.
14.1 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.
14.2 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, 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.
14.3 This Lease shall not be recorded without the consent of
Landlord and Tenant. However, either party may request that a memorandum of this
Lease be recorded in a form reasonably acceptable to both. The requesting party
shall pay all costs of recording.
14.4 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.
15. Disputes - Attorneys' Fees.
In the event of any litigation arising 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
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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.
16. 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.
17. Late Charges.
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 other remedies available for default.
18. General Provisions.
18.1 Waiver by either party of strict performance of any
provision of this Lease shall not be a waiver of nor prejudice the party's right
otherwise to require performance of the same provision or any other provision.
18.2 Subject to the 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.
18.3 Landlord shall have the right to enter upon the Premises
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 make necessary repairs to the Building
or the Premises, or to show the Premises to any prospective tenant or
purchasers. During the last two months of the term, Landlord may place and
maintain upon the Premises notices for leasing or sale of the Premises.
18.4 If this Lease commences or terminates at a time other
than the beginning or end of one of the specified rental periods, then the rent
(including Tenant's share of real property taxes, if any) shall be prorated as
of such date, and in the event of termination for reasons other than default all
prepaid rent shall be refunded to Tenant or paid on its account.
18.5 Tenant shall within ten (10) days following Landlord's
written request deliver to Landlord a written statement specifying the dates to
which the rent and other charges have been paid, whether the Lease is unmodified
and in full force and effect, and any other matters that may reasonably be
requested by Landlord.
18.6 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 at the same address and in the same
manner.
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18.7 This Lease constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof and supersedes any and
all prior representations, understandings and agreements, whether written or
oral. No supplement, modification or waiver of any provision of this Lease shall
be binding unless executed in writing by the party to be bound thereby. No
waiver of any of the provisions of this Lease shall be deemed or shall
constitute a waiver of any other provision hereof (whether or not similar), nor
shall such waiver constitute a continuing waiver unless expressly provided.
19. Environmental.
19.1 Definitions. The term "Environmental Law" shall mean any
federal, state or local statute, regulation or ordinance or any judicial or
other governmental order pertaining to the protection of health, safety or the
environment. The term "Hazardous Substance" shall mean any hazardous, toxic,
infectious or radioactive substance, waste and material as defined or listed by
any Environmental Law and shall include, without limitation, petroleum oil and
its fractions.
19.2 Use of Hazardous Substances. Tenant shall not cause or
permit any Hazardous Substance to be spilled, leaked, disposed of or otherwise
released on or under the Premises. Tenant may use and sell on the Premises only
time Hazardous Substances typically used and sold in the prudent and safe
operation of the business permitted by Paragraph 1 of this Lease. Tenant may
store such Hazardous Substances on the Premises, but only in quantities
necessary to satisfy Tenant's reasonably anticipated needs. Tenant shall comply
with all Environmental Laws and exercise the highest degree of care in the use,
handling and storage of Hazardous Substances and shall take all practicable
measures to minimize the quantity and toxicity of Hazardous Substances used,
handled or stored on the Premises.
19.3 Notices. Tenant shall immediately notify Landlord upon
becoming aware of the following: (a) any spill, leak, disposal or other release
of a Hazardous Substance on, under or adjacent to the Premises; (b) any notice
or communication from a governmental agency or any other person relating to any
Hazardous Substance on, under or adjacent to the Premises; or (c) any violation
of any Environmental Law with respect to the Premises or Tenant's activities on
or in connection with the Premises.
19.4 Spills and Releases. In the event of a spill, leak,
disposal or other release of a Hazardous Substance on or under the Premises
caused by Tenant or any of its contractors, agents or employees or invitees, or
the suspicion or threat of the same, Tenant shall (i) immediately undertake all
emergency response necessary to contain, cleanup and remove the released
Hazardous Substance, (ii) promptly undertake all investigatory, remedial,
removal and other response action necessary or appropriate to ensure that any
Hazardous Substances contamination is eliminated to Landlord's reasonable
satisfaction, and (iii) provide Landlord copies of all correspondence with any
governmental agency regarding the release (or threatened or suspected release)
or the response action, a detailed report documenting all such response action,
and a certification that any
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contamination has been eliminated. All such response action shall be performed,
all such reports shall be prepared and all such certifications shall be made by
an environmental consultant reasonably acceptable to Landlord.
19.5 Condition Upon Termination. Upon expiration of this Lease
or sooner termination of this Lease for any reason, Tenant shall remove all
Hazardous Substances and facilities used for the storage or handling of
Hazardous Substances from the Premises and restore the affected areas by
repairing any damage caused by the installation or removal of the facilities.
Following such removal, Tenant shall certify in writing to Landlord that all
such removal is complete.
19.6 Assignment and Subletting. Notwithstanding the provisions
of Paragraph 9 of this Lease, it shall not be unreasonable for Landlord to
withhold its consent to any assignment, sublease or other transfer of the
Tenant's interest in this Lease if a proposed transferee's anticipated use of
the Premises involves the generation, storage, use, sale, treatment, release or
disposal of any Hazardous Substance.
19.7 Indemnity.
19.7.1 By Tenant. Tenant shall indemnify, defend
and hold harmless Landlord, its employees and agents, any persons holding a
security interest in the Premises, and the respective successors and assigns of
each of them from and against any and all claims, demands, liabilities, damages,
fines, losses, costs (including without limitation the cost of any
investigation, remedial, removal or other response action required by
Environmental Law) and expenses (including without limitation attorneys' fees
and expert fees in connection with any trial, appeal, petition for review or
administrative proceeding) arising out of or in any way relating to the use,
treatment, storage, generation, transport, release, leak, spill, disposal or
other handling of Hazardous Substances on the Premises by Tenant or any of its
contractors, agents or employees or invitees. Tenant's obligations under this
paragraph shall survive the expiration or termination of this Lease for any
reason. Landlord's rights under this paragraph are in addition to and not in
lieu of any other rights or remedies to which Landlord may be entitled under
this agreement or otherwise.
19.7.2 By Landlord. Landlord shall indemnify, defend
and hold harmless Tenant and its officers, directors, employees, invitees and
agents and the respective successors and assigns of each of them from and
against any and all claims, demands, liabilities, damages, fines, losses, costs
(including without limitation the cost of any investigation, remedial, removal
or other response action required by Environmental Law) and expenses (including
without limitation attorneys' fees and expert fees in connection with any trial,
appeal, petition for review or administrative proceeding) arising out of or in
any way relating to the actual or alleged use, treatment, storage, generation,
transport, release, leak, spill, disposal or other handling of Hazardous
Substances on the Premises by Landlord, or any of its contractors, agents or
employees or by Landlord's previous tenants of the Premises. Landlord's
obligations under this paragraph shall survive the expiration or termination of
this Lease for any reason. Tenant's rights under this paragraph are in addition
to and
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not in lieu of any other rights or remedies to which Tenant may be entitled
under this Agreement or otherwise.
20. 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.
21. 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: (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.
22. 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 Xx. Xxxx X.
Xxxxxxxxx and Mr. Xxxx Xxxxxxxx of Xxxxxx, Xxxxx & Xxxxxxx 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.
23. Building Location.
Landlord reserves the right to change the location of the
Building within Columbia Tech Center.
24. First Right of Notice.
24.1 Up to ninety (90) days prior to Tenant's taking
possession of the Premises, Tenant shall have the exclusive right to lease the
approximately 20,000 square feet of warehouse and office space adjacent to the
Premises. Landlord agrees to negotiate in good faith with Tenant for the lease
of such adjacent space.
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24.2 After ninety (90) days prior to Tenants taking possession
of the Premises, Tenant shall have the First Right of Notice for the
approximately 20,000 square feet of warehouse and office space adjacent to the
Premises. Landlord shall notify Tenant of the availability of such space, and
Tenant shall have seven (7) 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.
25. Option to Renew.
If not then in default, Tenant shall have the option to renew
this Lease for one additional 5-year term by giving Landlord written notice of
intent to extend at least 180 days prior to expiration of the preceding term.
All provisions of this Lease shall apply during the extended term, except that
rent for the renewal period shall be an amount agreed upon by parties at least
90 days prior to commencement of the renewal period, but in no case less than
that of the preceding term.
26. Tenant Improvements.
Landlord shall, at its expense, cause construction of tenant
improvements within the Premises in accordance with the approved Plans and
Specifications called for in this paragraph. All improvements shall be
constructed using Columbia Tech Center tenant finish standards as outlined on
the attached Exhibit B. Tenant improvements shall be installed using industry
standard materials installed in a good and workmanlike manner by qualified
craftsmen. Said improvements shall be constructed from Plans and Specifications
prepared by Landlord's architect subject to applicable building codes as
interpreted by the governing jurisdiction. Said improvements shall include, but
not be limited to, the following:
26.1 The construction of approximately 600 square feet of air
conditioned and heated office space within the Premises to a mutually acceptable
space plan;
26.2 The installation of all plumbing, electrical, mechanical
and sprinkler systems;
26.3 The installation of all doors, including shipping and
receiving doors, which are to be in proper working order;
26.4 The installation of lighting and gas space heaters in the
warehouse portion of the Premises;
26.5 The construction of two (2) ADA compliant Restrooms with
the Premises;
26.6 The installation of two (2) dock levelers in the
warehouse portion of the Premises; and
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26.7 The construction of a demising wall between the Premises
and the adjacent space.
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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:
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/ Xxxxx X. Xxxxx
----------------- ---------------------
Xxxxx X. Xxxxx
Vice President
Address for Notices/Rent Payments to Landlord:
00000 X.X. Xxxxxxx Xxxxxxx, #300-WPMC
Xxxxxxxx, XX 00000
TENANT:
LABTEC, INC.,
a Delaware corporation
Date: 2-6 , 1998 By: /s/ X.X. Xxxxxxx
------------ ---------------------------------------------
Name: X.X. Xxxxxxx
---------------------------------------------
Title: CFO
---------------------------------------------
Date: , 1998 By:
------------ ---------------------------------------------
Name:
---------------------------------------------
Title:
---------------------------------------------
Address for Legal Notices to Tenant:
0000 X.X. Xxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx XX 00000
Address for Invoices to Tenant:
0000 X.X. Xxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx XX 00000
Tenant Employer Identification Number
00-0000000
(Acknowledgment by Individual)
STATE OF )
---------------------------------
) ss.
County of
---------------------------------)
On this _____ day of _____, 199__, before me, personally appeared
___________ to me known to be the individual described in and who executed the
foregoing instrument, and acknowledged to me that he signed the said instrument
as __________ free and voluntary act and deed for the uses and voluntary act and
deed for the uses and purposes therein mentioned.
------------------------------------------
Notary Public for ________________________
My Commission Expires:____________________
(Acknowledgment by Corporation)
STATE OF Washington )
) ss.
County of Xxxxx )
On this 6th day of Feb., 1998, before me, personally appeared X.X.
Xxxxxxx and --- to me known to be the C.F.O. and -----, respectively, of Labtec,
Inc., the corporation that executed the foregoing instrument, and acknowledged
the said instrument to be free and voluntary act and deed of said corporation,
for the uses and purposes therein mentioned, and on oath stated that he
authorized to execute the said instrument.
/s/ Xxx Xxxxxx
Notary Public for Washington
My Commission Expires: May 29, 1999
(Acknowledgment by Pacific Realty Associates, L.P.)
STATE OF OREGON )
) ss.
County of WASHINGTON )
On this 10th day of February, 1998, before me, personally appeared
Xxxxx X. Xxxxx, who, being first duly sworn, did say that he is the Vice
President of PacTrust Realty, Inc., General Partner of Pacific Realty
Associates, L.P., member of Columbia Tech Center, L.L.C.
WITNESS my hand and official seal.
/s/ Xxxxxx Xxx Xxxxxx
Notary Public for Oregon
My Commission Expires: 05-29-01
LABTEC ENTERPRISES, INCORPORATED
EXHIBIT "A"
[MAP OF COLUMBIA TECH CENTER]
EXHIBIT "B"
LABTEC ENTERPRISES, INC.
BUILDING NO. 28, COLUMBIA TECH CENTER
TENANT IMPROVEMENT STANDARDS
LIGHT INDUSTRIAL BUILDINGS
February 4,1998
GENERAL -
The cost of standard tenant improvement work described below shall be covered
under the tenant improvement allowance.
ARCHITECTURE AND ENGINEERING: Architecture and engineering required to
obtain a building permit are included for standard office and warehouse
occupancy classifications.
PERMITS/FEES: Building permits, plan check fees, fire and life safety
review charges, sewer connection fees and SDC's are included for
standard office and warehouse occupancy classifications.
EXCLUSIONS: 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.
EXTERIOR AND BUILDING SHELL -
EXTERIOR: Modifications to sitework and exterior building shell to
accommodate unusual tenant needs are excluded. This would include
patios; equipment pads; noise or special visual screening;
modifications to exterior building walls, windows, or doors; and
upgrading of electrical, storm sewer or sanitary sewer systems.
Exterior fencing is excluded.
TENANT ENTRIES AND MAN-DOORS: Tenant entry shall include a single
storefront door in the aluminum storefront system. Exterior man-doors
into warehouse areas shall be 3' x 7' hollow metal with Schlage "D"
series lever locks. Special access systems, card lock entries, and
unusual door hardware items are excluded.
OVERHEAD DOORS: Exterior overhead doors shall be steel sectional type,
manually operated, vertical or high lift configuration.
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ELECTRICAL: Building shell electrical system includes the main
electrical service (1200 Amp, 277/480 Volt, 3-phase) to be shared by
building tenants and "house" panels for exterior lighting and common
area power requirements. Tenant improvement electrical service includes
distribution of power from the main building service to tenant
subpanels and the addition of any tenant subpanels within the tenant
space. Generators and UPS systems are excluded.
WAREHOUSE AREAS -
DEMISING WALLS:
Demising walls shall extend from floor level to the underside
of the building roof structure. Demising walls in buildings
with clear height 18 feet and less shall be constructed using
metal studs with 5/8" sheetrock each side. Fiberglass batt
insulation shall be provided in metal stud demising walls from
floor to 9 feet high.
Demising walls in 18' to 24' clear height buildings shall be
constructed using wood studs spaced approximately 4 feet on
center and a single layer of 5/8" plywood connected to studs
with wood "stops". Wood demising walls are uninsulated.
EXTERIOR WALLS: Exterior walls within warehouse areas shall remain
unpainted, exposed concrete. Insulation for exterior walls within
warehouse arm is excluded.
CEILINGS/ROOF STRUCTURE: Minimum of 24' clear height to structure.
Finished ceilings within warehouse areas are excluded. Roof structure
is insulated with R-19 insulation and shall remain exposed. Painting of
roof structure and supporting elements is excluded.
FLOORING: Warehouse floor shall be exposed, sealed concrete.
PLUMBING: Special plumbing such as process water and waste systems are
excluded under standard tenant improvements.
FIRE PROTECTION: Building shell fire protection system includes service
to the building and overhead sprinkler piping and heads. The warehouse
fire protection system shall be designed with roof level density of up
to a 0.495 gpm/2000 s.f. (ESFR system not included), with up to four
(4) small hose stations included. Modifications to the overhead system
shall be provided if required to accommodate demising wall layout.
H.V.A.C.: Gas fired unit heaters shall provide heating in warehouse
areas for freeze protection of overhead water piping only. Special
production area H.V.A.C. and special structural supports for mechanical
equipment are excluded.
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ELECTRICAL: Warehouse lighting shall be provided using fluorescent
fixtures to approximately 10-15 foot-candles measured 30" above floor;
warehouse lights to be switched from a location near the office. Except
for unit heater connections and a single duplex outlet near tenant's
phone board, power connections and outlets within warehouse areas are
excluded.
IMPROVED OFFICE AREAS -
CONCRETE: Existing concrete slab on grade shall be sawcut, removed, and
poured back for underslab utilities as necessary.
EXTERIOR WALLS: Exterior concrete walls within improved office areas
shall receive metal stud furring, insulation, and 5/8" smooth finished
sheetrock. Exterior framed walls within improved office areas shall
receive thermal insulation and 5/8" smooth finished sheetrock from
floor to 9 feet high.
OFFICE/WAREHOUSE SEPARATION WALLS: Walls separating improved office
areas and warehouse areas shall extend from floor level to 12 feet
above floor. Such walls shall be constructed using metal studs,
fiberglass batt insulation from floor to 9 feet high, and 5/8"
sheetrock each side. Sheetrock shall extend from floor to top of
framing on the warehouse side of the wall and from floor to ceiling
level on the office side of the wall.
INTERIOR PARTITIONS: Interior partitions shall extend from floor level
to the underside of ceiling grid. Interior partitions shall be
constructed using 3-1/2" metal studs at 24" on center and 5/8" smooth
finished sheetrock each side. Batt insulation shall be provided in
walls surrounding toilet and conference rooms.
INTERIOR DOORS: Interior doors shall be nominal 3'-0" by 7'-0" solid
core oak with light Watco finish ("Building Standard Finish") in Timely
door frames, factory pre-painted in standard off-white color ("Building
Standard Frame"). Door hardware to include 1-1/2 pair butts, Schlage
"AL" series lever latch, and wall stop for each door. Door hardware
finish to be polished chrome.
RELITES: Relites are excluded for standard tenant improvements. When
used, relites shall include 1/4" tempered glass in Building Standard
Frame.
CABINETS AND MILLWORK: Plastic laminate covered countertops shall be
provided with counter-mounted lavatories in each toilet room. Cabinets
to be constructed to A.W.I. standards with plastic laminate covered
tops, fronts, and sides. Cabinet interiors shall be constructed of
melamine or standard low pressure laminate on particle board substrate.
Concealed hinges, heavy-duty drawer hardware, and wire pulls shall be
included for all drawers or doors. One 4' by 4' plywood mounting board
is included for
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tenant's phone equipment. Wall paneling, wood base, shelving, and other
special millwork
items are excluded.
ACOUSTICAL CEILINGS: Acoustical ceiling to be 2' by 2' tegular edge
ceiling tile (Xxxxxxxxx Minatone #705 Fissured) in standard suspended
grid. Ceiling height to be approximately 9 feet.
FLOOR COVERINGS: Floor covering colors shall be selected by Tenant from
Landlord's standard finish options. Carpet shall be cut pile or loop as
selected by Tenant. 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 shall be provided in
toilet rooms. Rubber base shall be 4" high in continuous lengths. 6"
high rubber base shall be used in toilet rooms. 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.
PAINTING AND WALL COVERING: All interior walls in improved office areas
shall receive primer and two coats of fresh paint. Paint color is to be
selected from Landlord's standard color options. Plastic laminate
wainscot shall be provided on "wet" walls within toilet rooms. Vinyl,
fabric, and other special wall coverings are excluded.
WINDOW COVERINGS: Exterior windows shall be covered with vertical
blinds (solid plastic slats), in building standard color. Window
coverings are excluded on doors and interior glass systems.
APPLIANCES: Appliances such as dishwashers, refrigerators, garbage
disposers, and microwave ovens; and vending machines, coffee makers or
other similar equipment are excluded.
FURNITURE AND ACCESSORIES: Toilet room accessories include one toilet
paper holder and one seat cover dispenser for each water closet, one
paper towel dispenser for each toilet room, and grab bars where
required by code. All toilet accessories shall be surface mounted
units. One counter mounted soap dispenser shall be provided for each
toilet room lavatory. Furniture, coat hooks, desk partitions, tack
boards, white boards, projection screens, fire extinguishers and
cabinets, lockers, and other miscellaneous accessories are excluded.
PLUMBING: Plumbing shall be provided within the tenant area to serve
necessary toilet facilities, a Lunch Room sink, and drinking fountain
if required by code. Special plumbing work such as showers and vending
machine connections are excluded.
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FIRE PROTECTION: Existing overhead fire protection system shall be
modified as required for tenant improvement ceiling and wall layout.
Fire protection work includes the addition of "drops" to ceilings and
chrome, semi-recessed sprinkler heads.
H.V.A.C.: Roof-top gas/electric packaged HVAC units shall provide
heating and cooling to finished office areas. Typical office cooling to
be approximately 400 square feet per ton. Maximum roof top unit size to
be 7.5 ton. Each zone to be thermostatically controlled. Special
production or clean room H.V.A.C., special computer room mechanical
work, and special structural support of mechanical equipment are
excluded. Ceiling mounted or roof-top mounted (Landlord's option)
exhaust fans shall be provided for toilet room locations.
ELECTRICAL:
Office area electrical work includes furnishing and
installation of lighting, power outlets, mud rings with pull
strings for phone/data locations, and power connections to
HVAC equipment. Electrical deeds to be intermediate grade with
wiring systems to meet code. Generators and UPS systems are
excluded.
Office lighting shall be provided using 2' by 4' fluorescent
light fixtures with standard acrylic lenses. Wattage available
for lighting for each tenant space is governed by the
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 2 each per 120 square feet of
improved office area. Power supply for Tenant desk partitions
to be provided at wall, floor, or power pole locations only;
connection to tenant's partition system and wiring within desk
partitions are excluded. Mud rings with pull strings to the
area above ceiling shall be provided 2 each per 240 square
feet of improved office area for Tenant installed telephone
and data wiring. Cover plates and receptacles for telephone
and data wiring and unused mud rings shall be provided by the
Tenant's phone or data wiring vendor.
FIRE ALARM: Fire alarm and smoke detection systems shall be provided if
required by the local governing jurisdictions.
SECURITY SYSTEMS: Security systems are excluded.
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TELEPHONE AND COMPUTER SYSTEMS: Telephone, data, and computer system
equipment and wiring are excluded. Tenant phone equipment shall be
provided by tenant and located within the tenant area.
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