EXHIBIT 10.32
COMMERCIAL LEASE AGREEMENT
THIS LEASE is made this 31st day of December, 2003, by and between Ekelund
Properties, LLC (hereinafter called "Lessor") and Genius Products, Inc.
(hereinafter called "Lessee"), and replaces and supercedes the sublease
agreement dated May 1st, 2003, between Lessor and Lessee.
WITNESSETH:
1. PREMISES:
Lessor does hereby lease to Lessee that certain portion of the
building known as 000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx presently
occupied by Lessee ("Premises") consisting of approximately 1,300
square feet.
2. TERM:
Lessee is hereby entitled to lease the Premises on a one-year basis
until this Lease is terminated by either party. Lessor and Lessee
shall each be entitled to terminate this Lease at any time, for any
or no reason, by providing written notice of the termination to the
other party at least 60 days prior to the termination date.
3. RENT, DEPOSIT AND LATE PAYMENT:
Lessee covenants and agrees to pay Lessor, at the offices of Lessor,
or to such other party or at such other place as Lessor may
hereafter designate in writing, a base monthly rent in the amount of
Twelve Hundred Dollars ($1,200.00). The base monthly rent for each
month of the Lease term shall be paid in advance on the first day of
each month.
Lessee acknowledges that late payment by Lessee to Lessor of any
rent or other sum due hereunder will cause Lessor to incur costs not
contemplated by this Lease, the exact amount of which would be
extremely difficult to ascertain. Such costs include, but are not
limited to, processing and accounting charges, and late charges
imposed on Lessor by the terms of any mortgage or trust deed
covering the Premises. Therefore, in the event Lessee should fail to
pay any installment of rent or any other sum due hereunder after
such amount is due, Lessee shall pay to Lessor on the first day of
each month, in addition to rent and any other sum due hereunder, a
late charge equal to five percent (5%) of all unpaid amounts due and
owing. A fifty dollar ($50.00) charge will also be paid by Lessee to
the Lessor for each returned check.
Xxxxxx XX
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Lessee MM
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4. COMMON AREAS:
If the Premises is part of a building occupied by other tenants,
Lessee agrees to conform to Lessor's rules and regulations
pertaining to the parts of the building that are in common use by
other tenants.
5. REPAIRS AND MAINTENANCE:
Lessee shall, at its own expense and at all times, keep the Premises
neat, clean and in a sanitary condition, and keep and use the
Premises in accordance with applicable laws, ordinances, rules,
regulations and requirements of any governmental authorities. Lessee
shall permit no waste, damage or injury to the Premises.
Except for the roof, exterior walls and foundations, which are the
responsibility of the Lessor, Lessee shall make such repairs as
necessary to maintain the Premises in as good condition as it is
now, reasonable use and wear and damage by fire and other casualty
excepted. Lessee shall make all repairs to the Premises reasonably
requested by the Lessor.
6. ACCIDENTS AND LIABILITY:
Lessor and its agents shall not be liable for any injury or damage
to person or property sustained, by Lessee or others, in and about
the Premises. Lessee agrees to defend and hold Lessor and its agents
harmless from any claim, action, award, settlement and/or judgment
for damages to property or injury to person suffered or alleged to
be suffered on the Premises by any person, firm or corporation.
7. USE:
Lessee shall use the Premises for its general business operations,
and for no other purposes without written consent of Lessor. In the
event Lessee's use of the Premises increases Lessor's fire or other
liability insurance rates on the building of which the Premises is a
part, Lessee agrees to pay for such increase.
8. LIENS AND SOLVENCY:
Lessee shall keep the Premises free from any liens arising out of
any work performed for, materials furnished to or obligations
incurred by Lessee and shall defend and hold Lessor harmless against
the same. In the event Lessee becomes insolvent or bankrupt, or if a
receiver, assignee or other liquidating officer is appointed for the
business of Lessee, Lessor may immediately terminate this Lease at
its option.
Xxxxxx XX
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Lessee MM
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9. SUBLETTING OR ASSIGNMENT:
Lessee shall not sublet the whole or any part of the Premises, nor
assign this Lease, without the written consent of Lessor. This Lease
shall not be assignable by operation of law.
10. ACCESS:
Lessor shall have the right to enter the Premises at all reasonable
times for the purpose of inspection or of making repairs, additions
or alterations and shall have the right to enter and show the
Premises to prospective tenants during the sixty (60) days prior to
the termination of the Lease.
Lessor shall at all times have and retain a key with which to unlock
all of the doors in, upon and about the Premises, excluding Lessee's
vaults, safes and files, and Lessor shall have the right to use any
and all means which Lessor may deem proper to open said doors in an
emergency in order to obtain entry to the Premises without liability
to Lessee, and any entry to the Premises obtained by Lessor by such
means, or otherwise, shall not under any circumstances be construed
or deemed to be a forceable or unlawful entry, or a detainer of the
Premises, or an eviction of Lessee from the Premises or any portion
thereof.
11. DAMAGE OR DESTRUCTION:
In the event the Premises is rendered untenantable in whole or in
part by fire, elements, or other casualty, Lessor may elect, at its
option, not to restore or rebuild the Premises and shall so notify
Lessee, in which event Lessee shall vacate the Premises and this
Lease shall be immediately terminated; or in the alternative, Lessor
shall notify Lessee, within thirty (30) days after such casualty,
that Lessor will undertake to restore or rebuild the Premises, in
which event the Lease may be immediately terminated at Lessee's
option by written notice to Lessor within ten (10) days after
receiving such notice from the Lessor. During the period of
untenantability, Lessee's rent shall xxxxx in the same ratio as the
portion of the Premises rendered untenantable bears to the whole of
the Premises.
12. SIGNS:
All signs or symbols placed by Lessee upon the windows and doors of
the Premises, or upon any exterior part of the Premises, shall be
subject to Lessor's prior written consent. Lessor may demand the
removal of signs which are not so approved, and Lessee's failure to
comply with said request within five (5) days of Lessor's demand
will constitute a breach of this paragraph and will entitle Lessor
to immediately terminate this Lease, or in lieu thereof, to cause
the sign to be removed and the Premises repaired at the sole expense
of the Lessee. At the termination of this Lease, Lessee will remove
all signs placed by it upon the Premises, and will repair at its
sole expense any damage caused by such removal.
Xxxxxx XX
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Lessee MM
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3
13. ALTERATIONS:
After prior written consent of Lessor, Lessee may make alterations,
additions and improvements in and to the Premises, at its sole
expense. As a part of Lessor's consent, Lessor may require Lessee to
store during the term of this Lease, at Lessee's sole expense, any
part of the Premises that is removed by Lessee in order to make any
alteration, addition or improvement. In the performance of such
work, Lessee agrees to comply with all laws, ordinances, rules and
regulations of any proper public authority, and to defend and hold
Lessor harmless from damage, loss or expense related to or arising
from such work. Upon Lessor's request, or with Lessor's written
consent, Lessee shall remove such alterations, additions and
improvements and restore the Premises to its original condition not
later than the termination date, at Lessee's sole expense. Any
alterations, additions and improvements not so removed shall remain
in and be surrendered with the Premises as a part thereof. Trade
fixtures may be removed at Lessee's sole expense, provided that
Lessee shall restore the Premises to its original condition or pay
for any damage caused by such removal.
14. CONDEMNATION:
In the event a substantial part of the Premises is taken by the
right of eminent domain, or is purchased by the condemnor in lieu
thereof, so as to render the remaining Premises untenantable, then
this Lease shall be terminated as of the time of taking at the
option of either party. In the event of a partial taking which does
not render the whole Premises untenantable, Lessee's rent shall be
reduced in direct proportion to the taking. Lessee shall have no
claim to any portion of the compensation for the taking of the land
or building.
15. TAXES, INSURANCE, MAINTENANCE: Not applicable to Lessee.
16. DEFAULT AND RE-ENTRY:
If Lessee shall fail to keep and perform any of the covenants and
agreements herein contained and such failure continues for thirty
(30) days after Lessee receives written notice from Lessor, unless
appropriate action has been taken by Lessee in good faith to cure
such failure, Lessor may immediately terminate this Lease and
re-enter the Premises.
17. REMOVAL OF PROPERTY:
In the event Lessor lawfully re-enters the Premises as provided
herein, Lessor shall have the right, but not the obligation, to
remove all personal property located therein and to place such
property in storage at the sole expense and risk of Lessee.
Xxxxxx XX
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Lessee MM
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18. COST AND ATTORNEYS' FEES:
If, by reason of any default or breach on the part of either party
in the performance of any of the provisions of this Lease, a legal
action is instituted, the losing party agrees to pay all reasonable
costs and attorneys' fees of the prevailing party in connection
therewith. It is agreed that the venue of any legal action brought
under the terms of this Lease shall be in the county in which the
Premises is situated.
19. SUBORDINATION:
Lessee agrees that this Lease shall be subordinated to any mortgages
or deeds of trust placed on the land on which the Premises is
situated, provided that in the event of foreclosure, if Lessee is
not then in default and agrees to attorn to the mortgagee or the
beneficiary under any deed of trust, such mortgagee or beneficiary
shall recognize Lessee's right of possession under the terms of this
Lease.
20. NO WAIVER OF COVENANTS:
Any waiver by either party of any breach of this Lease by the other
party shall not be considered a waiver of any future similar breach.
This Lease contains all the agreements between the parties, and
there shall be no modification of this Lease or the agreements
contained herein except by written instrument signed by both
parties.
21. SURRENDER OF PREMISES:
Lessee agrees, upon termination of this Lease, to peacefully quit
and surrender the Premises without notice, to leave the Premises
neat and clean and to deliver all keys to the Premises to Lessor.
22. HOLDING OVER:
If Lessee shall hold over after the termination of this Lease by
Lessor, Lessee shall remain bound by all the covenants and
agreements herein, with increased rent to be determined by Lessor.
23. BINDING ON HEIRS, SUCCESSORS AND ASSIGNS:
The covenants and agreements of this Lease shall be binding upon the
heirs, executors, administrators, successors and assigns of both
parties, except as hereinabove provided.
Xxxxxx XX
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Lessee MM
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24. NOTICE:
Any notice required to be given by either party to the other party
shall be personally delivered or deposited in the United States
mail, postage prepaid, addressed to the Lessor at:
Ekelund Properties, LLC
Attn: Xxxxx Xxxxxxx
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
or to Lessee at:
Genius Products, Inc.
Attn: Xxxxxxx Xxxxxx
000 Xxxxx Xxxxx Xx, Xxxxx 000
Xxxxxx Xxxxx, XX 00000
or at such other address as either party may designate to the other
party in writing from time to time.
25. PARKING:
Parking in the back of 000 Xxxxx Xxxxxx is restricted to two-hour
parking. For long-term parking (more than two-hour) Lessee is
required to park across the parking lot, near the library.
26. TIME IS OF THE ESSENCE FOR THIS LEASE.
IN WITNESS WHEREOF, the parties hereto have executed this Lease effective as of
the date first above written.
LESSOR LESSEE
Ekelund Properties, LLC Genius Products, Inc.
By: /S/ XXXXX XXXXXXX By: /S/ XXXXXXX XXXXXX
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Xxxxx Xxxxxxx, Authorized Officer Xxxxxxx Xxxxxx, President
Xxxxxx XX
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Lessee MM
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