EXHIBIT 10.3
OFFICE LEASE
This Lease ("LEASE"), dated for reference purposes only,
March 2, 2005
is made by and between
AMERICAN PROPERTY MANAGEMENT CORP. as agent for and on behalf of WESTON
INVESTMENT CO. LLC, ("LESSOR"), and
New Visual Corporation, a Utah corporation, ("LESSEE").
AMERICAN PROPERTY MANAGEMENT CORP. Account #C-321-5207-02
LESSOR hereby leases to LESSEE the following:
Suite #105 consisting of approximately 1,119 rentable square feet ("Premises")
(See Standard of Measurement Section 1.1)
(This measurement includes a load factor for the Building of 15%)
in the Multnomah Plaza Office Building
located at 000 XX 000xx Xxx, Xxxxxxxx XX 00000 ("Building")
for a term commencing April 1, 2005; ("Commencement Date")
and continuing through March 31, 2008; ("Expiration Date") at an initial Base
Rental of $1,725.13 (U.S.) per month ("Base Rent") (see Section 37.1) payable in
advance on the first day of each month at 0000 X.X. Xxxxxxxx, Xxxxx #000,
Xxxxxxxx, Xxxxxx 00000-0000
commencing April 1, 2005.
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LESSOR and LESSEE covenant and agree as follows:
1.1 STANDARD OF MEASUREMENT
a.)
Useable Square Footage
Is that area from the center of the tenant demising wall to the center of the
opposite tenant demising wall which is established by the American National
Standard Method of Measurement of Office Floor Space (ANSI 265.1-1980) and the
Building Owners and Manager Association (BOMA).
b.)
Load Factor
Is a percentage of all the Building common areas such as Building lobby,
elevator lobbies, common hallways, common restrooms, common utility service
closets, common conference room, common canteen/kitchen lounge areas and
designated smoking areas. Not calculated is vertical floor penetrations such as
stairways, elevator shafts or mechanical shafts.
c.)
Rentable Square Footage
Is the calculated useable square footage plus a percentage of the common area of
the Building. The total of the two equal rentable square footage.
Formula:
973 useable square feet + 15% Load Factor = 1,119 rentable square feet
Note: The actual common area square footage may exceed the Load Factor of this
Lease.
d.)
These square footages are approximations only and may vary from the actual
square footage. Prior to occupancy LESSEE may inspect and measure the Premises
to confirm the square footage. As of occupancy LESSEE shall be deemed to have
accepted the Premises, and will be deemed to have waived any objection to the
square footage approximations set forth herein.
2.1 DELIVERY OF POSSESSION
Should LESSOR be unable to deliver possession of the Premises on the date fixed
for the Commencement Date of the term, the Commencement Date will be deferred
and LESSEE shall owe no rent until receiving notice from LESSOR tendering
possession to LESSEE. If possession is not so tendered within 90 days following
the Commencement Date of the term, then LESSEE may elect to cancel this LEASE by
providing written notice to LESSOR within 10 days following expiration of the 90
day period. LESSOR shall have no liability to LESSEE for delay in delivering
possession, nor shall such delay extend the term of this LEASE in any manner.
2.2 EARLY POSSESSION
If LESSEE occupies the Premises prior to said Commencement Date, such occupancy
shall be subject to all provisions of this LEASE, such occupancy shall not
advance the Expiration Date, and LESSEE shall pay rent for such period at the
initial monthly rates set forth above.
2.3 ACCEPTANCE OF PREMISES
Except as may be provided for in any exhibit, appendix or rider hereto,
occupancy shall be construed to mean that LESSEE expressly acknowledges that it
has fully inspected the Premises and accepts the Premises in their
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present condition. LESSEE further acknowledges LESSOR shall not be responsible
for any alterations, improvements or repairs unless by written agreement of the
parties, attached to and made a part of this LEASE.
3.1 RENT PAYMENT
Upon LESSEE'S execution of the LEASE, LESSEE shall pay the Base Rent for the
first calendar month of the LEASE term for which rent is payable. LESSEE shall
pay the Base Rent for the Premises and any additional charges provided herein
without deduction or offset. Rent for any partial month during the lease term
shall be prorated to reflect the number of days during the month that LESSEE
occupies the Premises based on a thirty (30) day month/360 day year. Rent or any
additional charges not paid when due shall bear interest at the rate of
one-and-one-half percent (1 1/2%) per month until paid in full. LESSOR may at
its option impose a late charge of .10 for each $1 due or $50.00, whichever is
greater, for rent or other additional charges paid made more than 10 days after
its due date in lieu of interest for the first month of delinquency, without
waiving any other remedies available for default.
4.1 SECURITY DEPOSIT Concurrently with the execution of this LEASE by the
LESSEE, LESSEE shall deliver to LESSOR One Thousand Seven Hundred Twenty Five
and 13/100 dollars ($1,725.13) as security for the full, timely and faithful
performance by LESSEE of every covenant and condition of this LEASE. It is
expressly understood and agreed the security deposit is not an advance of rental
deposit or a measure of LESSOR'S damages in the case of a default. This deposit
shall not bear interest. The security deposit shall not be considered a trust
fund.
LESSOR does not represent that LESSOR is acting as a trustee or in any fiduciary
capacity in controlling or using LESSEE'S security deposit as provided for
herein. If LESSEE shall default with respect to any covenant or condition of
this LEASE, LESSOR may apply the whole or part of such security deposit to the
payment of any sum in default or any other sum which LESSOR may be required to
spend by reason of LESSEE'S default. In such event, LESSEE shall upon demand
immediately pay to LESSOR the amount necessary to restore the security deposit
to its original amount. When the Base Rent is adjusted per the terms of this
LEASE, an additional amount shall be paid to bring the security deposit amount
equal to the newly adjusted Base Rent amount. If LESSEE, complies with all of
the covenants and conditions of this LEASE, the security deposit or any balance
thereof shall be returned to the LESSEE within sixty (60) days after the
Expiration Date of the lease term.
5.1 USE
LESSEE shall use the Premises for professional business office use only with no
retail sales or manufacturing and for no other purpose without LESSOR'S consent.
In connection with its use, LESSEE shall at its expense promptly comply with all
applicable laws, ordinances, rules and regulations of any public authority and
shall not annoy, obstruct, or interfere with the rights of the other tenants of
the Building. LESSEE shall create no nuisance nor allow any objectionable fumes,
noise, or vibrations to be emitted from the Premises. LESSEE shall not conduct
any activities that will increase LESSOR'S insurance rates for any portion of
the Building or that will in any manner degrade or damage the reputation of the
Building.
6.1 EQUIPMENT
LESSEE shall install in the Premises only such office equipment as is customary
for general office use and shall not overload the weight capacity of the floors
or the capacity of the electrical circuits of the Premises or Building or alter
the plumbing or wiring of the Premises or Building. LESSOR must approve, in
advance, the location and manner of installing any electrical, heat generating
or communication equipment or exceptionally heavy articles. Any additional air
conditioning required because of heat generating equipment or special lighting
installed by the LESSEE shall be installed and maintained at LESSEE'S expense.
LESSOR shall have no obligation to permit the installation of equipment by any
telecommunications provider whose equipment is not then servicing the building.
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7.1 SIGNS
No signs, awnings, antennas, or other apparatus shall be painted on or attached
to the Building or anything placed on any glass or woodwork of the Premises or
positioned so as to be visible from outside the Premises without LESSOR'S
written approval as to design, size, location and color. All signs installed by
LESSEE shall comply with LESSOR'S standards for signs and all applicable codes
and ordinances and all signs and sign hardware shall be removed upon termination
of this LEASE with the sign location restored to its former state unless LESSOR
elects to retain all or any portion thereof. LESSOR shall provide and install
building standard signage in the name of the LESSEE as it appears in this LEASE
for the Building lobby and suite entry. LESSEE shall be responsible for all
signage expense if the LEASE term is twelve months or less. Any changes
thereafter requested by LESSEE and approved by LESSOR shall be at LESSEE'S sole
expense.
8.1 UTILITIES AND SERVICES
LESSOR shall furnish heat, electricity, elevator service, and if the Premises
are air conditioned, air conditioning during the normal Buildings hours of 7:00
A.M. to 6:00 P.M., Monday through Friday, except holidays and 7:00 A.M. to 2:00
P.M. Saturdays, except holidays. The acceptable temperature range for the
Premises is between 67 degrees to 75 degrees fahrenheit, as measured from the
thermostat level which is approximately sixty inches (60") above the floor,
unless there are extreme weather conditions which create an unusually hot or
cold condition. Janitorial service will be provided in accordance with the
regular schedule of the Building, which schedule and service may change from
time to time. LESSEE shall comply with all government laws and regulations
regarding the use or reduction of use of utilities on the Premises. Interruption
of services or utilities shall not be deemed an eviction or disturbance of
LESSEE'S use and possession of the Premises, render LESSOR liable to LESSEE for
damages, or relieve LESSEE from performance of LESSEE'S obligations under this
LEASE, but LESSOR shall take all reasonable steps to correct any interruptions
in service. Electrical service furnished will be 110 volts unless different
service already exists in the Premises. The LESSOR shall only provide repair and
maintenance to building standard florescent light fixtures. The LESSOR shall not
be responsible for repair, maintenance (including light bulb replacement) for
non-building standard light fixtures. LESSEE shall provide its own surge
protection for power furnished to the Premises.
8.2 EXTRA USAGE
If LESSEE uses excessive amounts of LESSOR provided utilities and/or services of
any kind because of operation during normal Building hours and/or outside of
normal Building hours, high demands from office machinery and equipment,
nonstandard lighting or any other cause, LESSOR may impose a reasonable charge
for supplying such extra utilities and/or services, which charge shall be
payable monthly by LESSEE in conjunction with rent payments. In case of dispute
over any extra charge under this paragraph, LESSOR shall designate a qualified
independent engineer whose decision shall be conclusive on both parties. LESSOR
and LESSEE shall each pay one-half of the cost of such determination.
8.3 REMOVAL OF DEBRIS
LESSEE shall be solely responsible for and promptly pay for the removal of all
debris, cardboard, all and any other refuse generated in LESSEE'S moving into
premises including the replacement of office furniture and equipment during
tenancy and in vacating the Premises. Upon request, LESSOR shall supply LESSEE
the name of a recycling company to remove recyclable items. LESSEE shall pay
such additional charge in full upon receipt of statement.
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9.1 MAINTENANCE AND REPAIRS
LESSOR shall have no liability for failure to perform required maintenance and
repair unless written notice of the needed maintenance or repair is given by
LESSEE and LESSOR fails to commence efforts to remedy the problem in a
reasonable time and manner. LESSOR shall have the right to erect scaffolding and
other apparatus necessary for the purpose of making repairs, and LESSOR shall
have no liability for interference with LESSEE'S use because of repairs and
installations, nor shall LESSOR be required to provide LESSEE with advance
written notice of LESSOR'S access to the Premises. LESSEE shall have no claim
against LESSOR for any interruption or reduction of services or interference
with LESSEE'S occupancy, and no such interruption or reduction shall be
construed as a constructive or other eviction of LESSEE. Repair of damage caused
by negligent or intentional acts or breach of this LEASE by LESSEE, its
employees, or invitees shall be at LESSEE'S expense.
The LESSOR shall only provide repair and maintenance to building standard
florescent light fixtures. The LESSOR shall not be responsible for repair,
maintenance (including light bulb replacement) for non-building standard light
fixtures.
10.1 ALTERATIONS
LESSEE shall not make any alterations, additions, or improvements to the
Premises, change the color or character of the interior, or install any wall or
floor covering without LESSOR'S prior written consent. Any such additions,
alterations, or improvements, except for removable machinery and unattached
moveable trade fixtures shall at once become part of the realty and belong to
LESSOR. LESSOR may at its option require that LESSEE remove any alterations and
restore the Premises to the original condition upon termination of this LEASE.
LESSOR shall have the right to approve the contractor used by LESSEE for any
work in the Premises, and to post notices of nonresponsibility in connection
with any work being performed by LESSEE in the Premises. LESSEE agrees that any
Building or fixture modifications within the LESSEE'S Premises that is required
to accommodate the LESSEE, employees or invitees of the LESSEE, as required by
the Americans with Disabilities Act (ADA), will be at the expense of the LESSEE.
The LESSEE shall not alter any lock or install a new or additional lock or any
bolt on any door of the Premises without prior written consent of the LESSOR. In
the event LESSEE desires to change or modify door locks on the Premises, LESSEE
shall notify LESSOR in advance and shall use LESSOR'S authorized locksmith and
LESSEE shall bear such cost.
11.1 INDEMNITY
LESSEE shall not allow any liens to attach to the Building or LESSEE'S interest
in the Premises as a result of its activities. LESSEE shall indemnify and defend
LESSOR from any claim, liability, damage, or loss occurring on the Premises,
arising out of any activity by LESSEE, its agents, or invitees or resulting from
LESSEE'S failure to comply with any term or condition of this LEASE. LESSOR
shall have no liability to LESSEE because of loss or damage caused by the acts
or omissions of other tenants of the Building, or by third parties.
12.1 INSURANCE
LESSEE shall carry liability insurance in the amount of no less than
$1,000,000.00 and which insurance shall have an endorsement naming LESSOR and
LESSOR'S agent, if any, as an additional insured and covering the liability
insured under Paragraph 11.1 of this LEASE. LESSEE shall furnish a certificate
evidencing such insurance which shall state that the coverage shall not be
canceled or materially changed without 10 days advance written notice to LESSOR
and LESSOR'S agent, if any, and a renewal certificate shall be furnished at
least 10 days prior to expiration of any policy. LESSEE is responsible for their
own fire insurance, see Section 14.1.
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13.1 FIRE OR CASUALTY
"Major Damage" means damage by fire or other casualty to the Building or the
Premises which causes the Premises or any substantial portion of the Building to
be unusable, or which will cost more than 25 percent (25%) of pre-damage value
of the Building to repair, or which is not covered by insurance. In case of
Major Damage, LESSOR may elect to terminate this LEASE by notice in writing to
LESSEE within 60 days after such date. If this LEASE is not terminated following
Major Damage, LESSOR shall promptly restore the Premises to the condition
existing just prior to the damage. LESSEE shall promptly restore all damage to
tenant improvements or alterations installed or paid by LESSEE or pay the cost
of such restoration to LESSOR if LESSOR elects to do the restoration of such
improvements. Rent shall be reduced from the date of damage until the date
restoration work being performed by LESSOR is substantially complete, with the
reduction to be in proportion to the area of the Premises not useable by LESSEE.
14.1 WAIVER OF SUBROGATION
LESSEE shall be responsible for insuring its personal property and trade
fixtures located on the Premises. Neither LESSOR nor LESSEE shall be liable to
the other for any loss or damage caused by fire, water damage, sprinkler
leakage, or any of the risks that are or could be covered by a standard all risk
insurance policy with an extended coverage endorsement, or for any business
interruption, and there shall be no subrogated claim by one party's insurance
carrier against the other party arising out of any such loss.
15.1 EMINENT DOMAIN
If a condemning authority takes title by eminent domain or by agreement in lieu
thereof to the entire Building or a portion sufficient to render the Premises
unsuitable for LESSEE'S use, then either party may elect to terminate this LEASE
effective on the date that possession is taken by the condemning authority. Rent
shall be reduced for the remainder of the term in an amount proportionate to the
reduction in the area of the Premises caused by the taking. All condemnation
proceeds shall belong to LESSOR, and LESSEE shall have no claim against LESSOR
or the condemnation award because of the taking.
16.1 ASSIGNMENT AND SUBLETTING
This LEASE shall bind and inure to the benefit of the parties, their respective
heirs, successors, and assigns, provided that LESSEE shall not assign its
interest under this LEASE or sublet all or any portion of the Premises without
first obtaining LESSOR'S consent in writing. This provision shall apply to all
transfers by operation of law including but not limited to mergers and changes
in control of LESSEE. No assignment or subletting shall relieve LESSEE 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. LESSOR shall not unreasonably withhold its consent to
any assignment, or to subletting provided the subrental rate or effective rental
paid by the assignee is not less than the current scheduled rental rate of the
Building for comparable space and the proposed LESSEE is compatible with
LESSOR'S normal standards for the Building. If LESSEE proposes a subletting or
assignment to which LESSOR is required to consent under this paragraph, LESSOR
shall have the option of terminating this LEASE and dealing directly with the
proposed sublessee or assignee, or any third party. If an assignment or
subletting is permitted, any cash profit, or the net value of any other
consideration received by LESSEE as a result of such transaction shall be paid
to LESSOR promptly following its receipt by LESSEE. LESSEE shall pay any costs
incurred by LESSOR in connection with a request for assignment or subletting,
including reasonable attorneys' fees.
17.1 DEFAULT
Any of the following shall constitute a default by LESSEE under this LEASE:
(a) LESSEE'S failure to pay rent or any other charge under this LEASE within 10
days after it is due.
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(b) LESSEE'S failure to comply with any other term or condition within 10 days
following written notice from LESSOR specifying the noncompliance. If such
noncompliance cannot be cured within this 10 day period, the provision shall be
satisfied if LESSEE 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 in the performance of this LEASE.
(c) The making by LESSEE of any general assignment or general arrangement for
the benefit of creditors; or the filing by or against LESSEE of a petition to
have LESSEE adjudged a bankrupt, or a petition or reorganization or arrangement
under any law relating to bankruptcy (unless, in the case of a petition filed
against LESSEE, the same is dismissed within sixty (60) days); or the
appointment of a trustee or a receiver to take possession of substantially of
all LESSEE'S assets located at the Premises or of LESSEE'S interest in this
LEASE, where possession is not restored to LESSEE within thirty (30) days; or
the attachment, execution, or other judicial seizure of substantially all of
LESSEE'S assets located at the Premises or of LESSEE'S interest in this LEASE,
where such seizure is not discharged within thirty (30) days.
(d) Assignment or subletting by LESSEE in violation of Paragraph 16.1.
(e) Vacation or abandonment of the Premises without the written consent of
LESSOR.
17.2 REMEDIES FOR DEFAULT
In case of default as described in Paragraph 17.1, LESSOR 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:
(a) LESSOR may terminate the LEASE and retake possession of the Premises.
Following such retaking of possession, efforts by LESSOR to relet the Premises
shall be sufficient if LESSOR follows its usual procedure for finding tenants
for the space at rates not less than the current rates for other comparable
space in the Building. If LESSOR has other vacant space in the Building,
prospective tenants may be placed in such other space without prejudice to
LESSOR'S claim to damages or loss of rental from LESSEE.
(b) LESSOR may recover all damages caused by LESSEE'S default which shall
include an amount equal to rentals lost because of the default, lease
commissions paid for this LEASE, the unamortized cost of any tenant improvements
installed by LESSOR to meet LESSEE'S special requirements and the cost of any
clean up, refurbishing, lock changes and removal of the LESSEE'S property and
fixtures. LESSOR 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. LESSOR may elect in anyone action to
recover accrued damages plus damages attributable to the remaining term of the
LEASE. Such damages shall be measured based upon the rent due under this LEASE
for the remainder of the term, discounted to the time of judgment at the
prevailing interest rates on judgments.
(c) LESSOR may make any payment or perform any obligation which LESSEE has
failed to perform, in which case LESSOR shall be entitled to recover from LESSEE
upon demand all amounts so expended, plus interest from the date of the
expenditure at the rate of one-and-one-half percent (1 1/2%) per month. Any such
payment or performance by LESSOR shall not waive LESSEE'S default.
18.1 SURRENDER
On the Expiration Date or early termination of this LEASE, LESSEE shall deliver
all keys to LESSOR to avoid a minimum lock change charge of $150.00 per lock and
surrender the Premises broom clean and in the same condition as at the
commencement date of the term subject only to reasonable wear from ordinary use.
LESSEE shall 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 LESSOR may dispose of it in any
manner without liability and LESSEE shall pay a reasonable charge for such
removal and disposal. If LESSEE fails to vacate the Premises when required,
including failure to remove all its personal
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property, LESSOR may elect either: (1) to treat LESSEE as a tenant from month to
month, subject to all the provisions of this LEASE except that rent shall be
one-and-one-half (1 1/2) times the total rent being charged when the lease term
expired; or (2) to eject LESSEE from the Premises and recover damages caused by
wrongful holdover. During the period of sixty (60) days prior to the termination
date of this LEASE, the LESSOR may post on said premises or in the windows
thereof signs of appropriate size notifying the public that the premises are
"For Lease."
19.1 REGULATIONS
LESSOR shall have the right (but shall not be obligated) to make, revise and
enforce regulations or policies consistent with this LEASE for the purpose of
moving, use of common areas, prohibiting smoking or promoting safety, health,
order, economy, cleanliness, and good service to all tenants of the Building.
All such regulations and policies shall be complied with as if part of this
LEASE.
20.1 ACCESS
During times other than normal Building hours LESSEE'S officers and employees or
those having business with LESSEE may be required to identify themselves or show
passes in order to gain access to the Building. LESSOR shall have no liability
for permitting or refusing to permit access by anyone. LESSOR shall have the
right to enter upon the Premises at any time by passkey or otherwise to
determine LESSEE'S compliance with this LEASE, to perform necessary repairs to
the Building or the Premises, examine the condition of the Premises, to show the
Premises to any prospective tenant or purchasers or for any other lawful
purpose.
Except in the case of emergency, such entry shall be at such times and in such
manner as to minimize interference with the reasonable business use of the
Premises by LESSEE.
21.1 FURNITURE AND BULKY ARTICLES
LESSEE shall move furniture and bulky articles in and out of the Building or
make independent use of the elevators only at times approved by LESSOR following
at least 24 hours' advance written notice to LESSOR of the intended move. Items
of 1,000 pounds or greater shall require LESSOR'S approval.
22.1 NOTICES
Notices between the parties relating to this LEASE shall be in writing,
effective when delivered, or facsimile, 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 written
notice to the other. Notice to LESSEE may always be delivered to the Premises.
Rent shall be payable to LESSOR at the LESSOR'S address and in the same manner,
but shall be considered paid only when received.
23.1 SUBORDINATION
This LEASE shall be subject and subordinate to any mortgages, deeds of trust, or
land sale contracts (hereafter collectively referred to as encumbrances) now
existing against the Building. At LESSOR'S option this LEASE shall be subject
and subordinate to any future encumbrance hereafter placed against the Building
(including the underlying land) or any modifications of existing encumbrances,
and LESSEE shall execute such documents as may reasonably be requested by LESSOR
or the holder of the encumbrance to evidence this subordination.
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24.1 TRANSFER OF BUILDING
If the Building is sold or otherwise transferred by LESSOR or any successor,
LESSEE shall attorn to the purchaser or transferee and recognize it as the
LESSOR under this LEASE, and, provided the purchaser assumes all obligations
hereunder, the transferor shall have no further liability hereunder.
25.1 ESTOPPELS
Either party will within 20 days after written notice from the other execute,
acknowledge and deliver to the other party a certificate certifying whether or
not this LEASE has been modified and is in full force and effect; whether there
are any modifications or alleged breaches by any other party; the dates to which
rent has been paid in advance, and the amount of any security deposit, Lease
Consideration, or prepaid rent; and any other facts that may reasonably be
requested. 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. If requested by the holder
of any encumbrance, or any ground lessor, LESSEE will agree to give such holder
or LESSOR notice of and an opportunity to cure any default by LESSOR under this
LEASE.
26.1 ATTORNEYS FEES
In any litigation arising out of this LEASE, the prevailing party shall be
entitled to recover, in addition to costs and disbursements, attorneys' fees at
trial and on any appeal. If LESSOR incurs attorneys' fees because of a default
by LESSEE, LESSEE shall pay all such fees whether or not litigation is filed.
27.1 QUIET ENJOYMENT
LESSOR warrants that so long as LESSEE 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 LESSOR. Neither LESSOR nor its managing
agent shall have any liability to LESSEE for loss or damages arising out of the
acts, including criminal acts, of other tenants of the Building or third
parties, nor any liability for any reason which exceeds the value of its
interest in the Building.
28.1 COMPLETE AGREEMENT
This LEASE and the attached Exhibits and Schedules constitute the entire
agreement of the parties and supersede all prior written and oral agreements and
representations. Neither LESSOR nor LESSEE is relying on any representations
other than those expressly set forth herein. There are no implied covenants or
other agreements between the parties except as expressly set forth in this
LEASE.
29.1 CHAIR MATS
LESSEE shall provide, at LESSEE'S expense, chair mats for all desk rolling
chairs within the leased space and will be responsible for carpet wear caused by
chairs which could have been avoided by the use of chair mats.
30.1 PARKING
LESSEE shall have the nonexclusive use of 3 parking spaces for every 973 useable
square feet of leased space for the use during normal business hours. LESSOR has
sole control of parking and may designate areas for patrons of the
property/Building and assign LESSEE and employees of the LESSEE to designated
parking areas. LESSEE and employees shall park their cars only in these areas
designated for the purpose by the LESSOR. LESSEE shall furnish to LESSOR license
numbers of vehicles used by the LESSEE and the
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employees of the LESSEE, and notify LESSOR of any changes within five (5) days.
If LESSEE or its employees fail to park their vehicles in designated parking
areas, then LESSOR may charge LESSEE twenty dollars ($20.00) per day per vehicle
for each or partial day, in any area other than those designated, or if the area
is signed as a towing area, to have the vehicle(s) towed at the LESSOR'S option
and at the expense of the LESSEE and its employees. LESSEE acknowledges and
agrees that LESSOR shall not be responsible for the enforcement of any parking
rules or regulations in connection with reserved parking spaces contained in
this LEASE and/or in the Building rules.
There shall be no overnight storage of vehicles or trailers in the parking areas
or outside of Premises. LESSOR may remove vehicle from property and LESSEE shall
bear the cost of such removal.
31.1 COMMON AREA
Where the Building has a common entrance or meeting room, the LESSEE may use
these facilities at no cost on a first-come, first-serve basis by contacting the
LESSOR and reserving the room in advance. Abusing the privilege of the rooms may
result in the loss of said use.
32.1 NOTICE TO OWNERS, BUYERS, AND TENANTS REGARDING HAZARDOUS WASTES OR
SUBSTANCES UNDERGROUND STORAGE TANKS
Comprehensive Federal and State laws and regulations have been enacted in the
last few years in an effort to develop controls over the use, storage, handling,
cleanup, removal and disposal of hazardous wastes or substances. Some of these
laws and regulations, such as, for example, the so-called "Superfund Act",
provide for broad liability schemes wherein an owner, tenant or other user of
the property may be liable for cleanup costs and damages regardless of fault.
Other laws and regulations set standards for the handling of asbestos or
establish requirements for the use, modification, abandonment or closing of
underground storage tanks.
It is not practical or possible to list all such laws and regulations in this
LEASE. Therefore, owners, buyers and tenants are urged to consult legal counsel
to determine their respective rights and liabilities with respect to the issues
described in this notice as well as all other aspects of the proposed
transaction. If hazardous wastes or substances have been, or are going to be
used, stored, handled or disposed of on the property, or if the property has or
may have underground storage tanks, it is essential that legal and technical
advice be obtained to determine, among other things, what permits and approvals
have been or may be required, if any, the estimated costs and expenses
associated with the use, storage, handling, cleanup, removal or disposal of the
hazardous wastes or substances and what contractual provisions and protections
are necessary or desirable. It may also be important to obtain expert assistance
for site investigations as to the likelihood of hazardous wastes or substances,
or underground storage tanks being on the property.
Although LESSOR will disclose any knowledge it actually possesses with respect
to the existence of hazardous wastes or substances, or underground storage tanks
on the property, LESSOR has not made investigations or obtained reports
regarding the subject matter of this notice, except as may be described in a
separate written document signed by LESSOR. LESSOR makes no representations
regarding the existence or nonexistence of hazardous wastes or substances, or
underground storage tanks on the property. You should contact a professional,
such as a civil engineer, geologist, industrial hygienist or other persons with
experience in these matters to advise you concerning the property.
The term "hazardous wastes or substances" is used in this notice in its very
broadest sense and includes, but is not limited to petroleum base products,
paints and solvents, lead cyanide, DOT, printing inks, acids, pesticides,
ammonium compounds, asbestos, PCBs and other chemical products. Hazardous wastes
or substances and underground storage tanks may be present on all types of real
property. This notice is therefore meant to apply to any transaction involving
any type of real property, whether improved or unimproved.
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33.1 MODIFICATION
This LEASE may not be modified except by endorsement in writing attached to this
LEASE, dated and signed by all the parties hereto, and LESSOR shall not be bound
by any oral or written statement of any servant, agent, or employee modifying
this LEASE.
34.1 PARTIES AFFECTED
The rights, liabilities and remedies provided for herein shall extend to the
heirs, legal representatives, successors and, so far as the terms of this LEASE
permit, assigns of the parties hereto, and the words "LESSOR" and "LESSEE" and
their accompanying verbs or pronouns, wherever used in this LEASE, shall apply
equally to all persons, firms, or corporations which may be or become parties
hereto.
35.1 SECURITY
LESSEE and not LESSOR, is responsible for security of the Premises. Any breach
in security of the Premises, common areas, common access doors, and/or elevators
shall not constitute an eviction of the LESSEE or relieve LESSEE from any of
LESSEE'S obligations under this LEASE. All tenants shall have the responsibility
for maintaining the security to common access. LESSOR may modify the type or
amount of security measures or services provided to the Building or the Premises
at any time without notice.
36.1 RIGHT TO RELOCATE
LESSOR hereby reserves the right at any time during the term hereof to change
the location of the Premises in the Building or other acceptable property as may
be required. In the event LESSOR elects to exercise the foregoing option it
shall advise LESSEE with sixty (60) days prior written notice of its intention.
If LESSEE does not accept relocation space this LEASE will terminate at end of
sixty (60) day notice period. LESSEE hereby agrees to be bound by its election
to relocate or terminate this LEASE and, further, to execute upon receipt from
LESSOR, whatever amendments or other instruments may be required to correctly
reflect the foregoing changes and/or alterations. LESSOR shall relocate LESSEE
at LESSOR'S sole expense. LESSEE shall be relocated to a premise of like kind
and quality.
37.1 RENT SCHEDULE
The Base Rent Schedule shall be as follows:
Rental Period
Monthly Base Rent
April 1, 2005 - March 31, 2006 April 1, 2006 - March 31, 2007 April 1, 2007 -
March 31, 2008
$1,725.13 $1,776.88 $1,830.19
An amount shall be paid to bring the Security Deposit up to the newly adjusted
monthly Base
Rental.
37.2 UTILITY ADJUSTMENT
LESSEE shall pay as Additional Rent, one (1) time per year, LESSEE'S
proportionate share of any increase in basic utility costs for the Building.
The base period shall be January, 2004 to December, 2004 during which time the
actual utility costs were $59,327.26. The comparison period shall be defined as
the twelve calendar month period directly following the base period and every
consecutive twelve calendar month period thereafter. The actual utility costs
shall
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be defined as all Building meter accounts paid by the LESSOR. For the purposes
of the utility adjustment, the Utility Building size shall be the actual useable
square feet less any space separately metered or submetered or 41,517 square
feet and the LESSEE'S pro-rata share is 2.34% which is based on the actual
Premises useable square feet divided by the Utility Building size. Since the
useable square feet of the Building can change, the above Utility Building size
and LESSEE'S prorata share is subject to change.
The one (1) time per year utility payment, if any, shall be paid by the LESSEE
every April starting April, 2006 and shall be calculated as follows:
First, before any comparison of utility costs is made, the adjusted actual
entire Building base period utility cost paid by the LESSOR shall be increased
by the CPI percentage change for the same period (see Section 37.1) to create an
"adjusted" base amount. Next, the "adjusted" base period utility amount shall be
subtracted from the comparison period adjusted actual entire Building utility
cost. Last, the difference shall be multiplied by the LESSEE'S pro-rata share.
This amount will be due and payable as a one (1) time per year Additional Rent
charge paid by the LESSEE every April, starting April, 2006. An example is as
follows:
Example
1.) Actual Building Size .......................................................20,000 useable sq. ft.
2.) Building Tenants who pay their utilities direct on separate meters or
separately read submeters...................................................2,500 useable SQ. ft.
3.) Adjusted Building Size .....................................................17,500 useable sq. ft.
4.) LESSEE'S Premises = 1,000 useable sq. ft.
5.) LESSEE'S pro-rata share = 5.7%
6.) Actual Utility Costs during Base Period for Entire Building.................$17,500.00 ($1.00/rsf/yr)
7.) CPI Increase................................................................x 3%
8.) "Adjusted" Utility Costs Base Period........................................$18,025.00
9.) Actual Utility Costs during Comparison Period for Entire Building...........$19,600.00 (12% increase)
10.) Difference between Comparison Period and "Adjusted" Base Period............$ 1,575.00
11.) Tenant's annual Pro-rata Share 5.7% or $89.78, which is a one (1) time per
year payment made by the LESSEE.
38.1 SMOKING - ENTIRE NON-SMOKING BUILDING
The Building in which the Premises is located has been designated as an entire
NON-SMOKING Building. This includes all areas of the Building, both common areas
as well as individual tenant spaces. Thus, smoking in the Premises is not
permitted. Because of the fact that some tenants' leases were in existence prior
to the adoption of the entire building non-smoking policy, these tenants have
the right, if they choose, to smoke in their Premises only, but do have a LEASE
obligation to provide smokeless ashtrays and/or an air purification system that
will filter air within the space to the extent that it is economically feasible.
LEASES for all new tenants moving into the Building will incorporate the entire
non-smoking Building policy and will prohibit these new tenants under their
LEASE from smoking in all areas of the Building.
39.1 WAIVER
Any waiver by the LESSOR of any breach of any covenant herein contained to be
kept and performed by the LESSEE shall not be deemed or considered as a
continuing waiver, and shall not operate to bar or prevent the LESSOR from
declaring a forfeiture for any succeeding breach, either of the same condition
or covenant otherwise.
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40.1 PERSONAL GUARANTY
See Exhibit "A"
__X_None Required
41.1 INTERIOR DESIGN & MODIFICATION
See Exhibit "B-1" and "B-2" Space Plan
42.1 LESSOR AGREED TENANT IMPROVEMENTS
See Exhibit "C" Interior Space Work Agreement
If any provisions contained in this Exhibit "c" Interior Space Work Agreement
are inconsistent with any other provisions contained in this LEASE (ie: Exhibit
"B-1" or "B-2" Space Plan), the provisions contained in this Exhibit "c"
Interior Space Work Agreement shall control.
43.1 LESSEE AGREED IMPROVEMENTS
See Exhibit "D" __X_None Required
The LESSOR must review and approve any LESSEE Tenant Improvements to the
Premises. The LESSOR requests a walk-through with LESSEE and LESSEE'S contractor
prior to commencement of any improvements by LESSEE to the Premises.
(a) The LESSEE shall be responsible for all tenant improvements to the Premises
not performed by the LESSOR and all costs associated with said LESSEE tenant
improvements. Said tenant improvements are to comply with applicable building
(including Americans With Disabilities Act, or ADA) and fire codes and are to be
performed by licensed and bonded contractor with a building permit from the City
of Portland or the appropriate governmental agency. Prior to the commencement of
work, LESSEE'S general contractor shall provide LESSOR proof of insurance
indemnifying LESSOR for claims that may arise during the course of tenant
improvements. All tenant improvements performed by LESSEE shall have prior
written approval by LESSOR using materials of quality satisfactory to LESSOR.
LESSEE shall provide construction drawings, which will be attached to the LEASE
as Exhibit "D" and approved by LESSOR in writing prior to commencement of LESSEE
tenant improvements.
(b) The LESSEE will be responsible for all costs associated with LESSEE Tenant
Improvements.
(c) LESSEE to appoint one (1) person as a LESSEE representative project manager
regarding all LESSEE tenant improvement coordination. LESSOR will only interface
with that person.
(d) Before commencing any tenant improvements using LESSEE outside contractors,
LESSEE shall notify LESSOR of the expected commencement and completion dates of
the LESSEE tenant improvement work. LESSEE shall not permit any mechanics' or
materials' liens to be levied against the Premises or the Building for any labor
or materials furnished to LESSEE or its agents or contractors; provided,
however, that LESSEE shall not be required to payor otherwise satisfy any claims
or discharge such liens so long as LESSEE, in good faith and at its own expense,
contests the same or the validity thereof by appropriated proceedings and posts
a bond or takes other steps acceptable to LESSOR that stay enforcement of such
lien.
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(e) LESSEE agrees that there shall be no occupancy of the Premises by LESSEE
until any/all notices of mechanics' liens are removed from the property and
LESSOR is in receipt of lien waivers from all trades for LESSEE tenant
improvements.
(f) Prior to commencement of any LESSEE improvements to the Premises, LESSOR
shall require LESSEE to have their General Contractor provide LESSOR with proof
of Performance and Payment bond acceptable to the LESSOR listing LESSOR as an
Obligee.
(g) LESSOR also requires LESSEE'S construction agreement with LESSEE'S general
contractor for the Premises to include a waiver of any right to lien against the
LESSOR'S property and a statement that the General Contractor's only resource is
the LESSEE and not the LESSOR for any payments related tot he improvements of
the Premises.
(h) Upon completion of LESSEE'S tenant improvements per the construction
documents (to be attached to LEASE prior to construction start) approved by
LESSOR, LESSOR'S inspection of the completed said tenant improvements, and
LESSEE supplying a full set of lien releases.
(i) All materials shall be installed in a good workmanship manner, and quality.
U) All LESSEE tenant improvements will need to be routed through the Facilities
Permit Program with the City of Portland. All associated charges will be billed
to the LESSOR and passed through to the LESSEE for payment upon receipt. LESSEE
is aware all inspections and associated fees generated by LESSEE or LESSEE'S
contractor will be paid by the LESSEE. All reinspections associated with
LESSEE'S tenant improvements will be paid by LESSEE.
(k) The LESSEE may not occupy the Premises until LESSOR is in receipt of a copy
of a Certificate of Occupancy.
44.1 FLOOR PLAN
See Exhibit "E" Floor Plan
45.1 TELEPHONES
LESSEE agrees, at its expense, to provide voice and data wiring to the Premises
and appropriate common areas. LESSEE agrees to put any equipment associated with
LESSEE'S voice and data system in the Premises. LESSEE agrees that LESSOR shall
not be liable for any damages or other liability incurred by LESSEE or any other
parties as a result of LESSEE'S wiring the Premises for voice and data or the
existing condition of any voice and data wiring or system. LESSEE further agrees
to indemnify and hold harmless LESSOR from any and all liability or claims of
LESSEE or others arising or resulting from LESSEE'S wiring of the Premises for
voice and data communications.
The LESSOR will agree to remove all existing voice and data lines/wiring prior
to Commencement Date if LESSEE so requests in Exhibit "c" prior to LESSEE
signing this LEASE. If LESSEE does not request in Exhibit "c" that LESSOR remove
all existing voice and data lines/wiring, then LESSEE shall be responsible for
any removal required.
If LESSEE decides to use any of the existing voice and data lines/wiring, the
LESSOR will not be responsible for removing any existing voice and data
lines/wiring.
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46.1 TIME IS OF THE ESSENCE
LESSOR and LESSEE acknowledge that time is of the essence in the execution of
this LEASE in order to allow LESSOR adequate time to complete the agreed upon
Tenant Improvements. Due to the extent of tenant improvements described in
Exhibit "B-1" Space Plan and Exhibit "C" Interior Space Work Agreement, the
LESSOR'S contractor may require up to 30 days after a Lease is executed by
LESSOR in order to complete said improvements. If the LEASE is not signed,
returned (with Security Deposit and prepaid rent) and accepted by the LESSOR
before 12:00 noon March 4, 2005 then LESSEE understands that the Tenant
Improvements described in Exhibit "B-1" and "B-2" Space Plan and Exhibit "C"
Interior Space Work Agreement may not be completed by the Lease Commencement
date and LESSEE shall not take possession of Premises until said Tenant
Improvements are completed.
47.1 EXPIRATION OF OFFER
This offer to lease shall be null and void at the sole option of the LESSOR if
not returned to LESSOR signed by LESSEE in an acceptable form to LESSOR and
accompanied by appropriate funds by March 4, 2005.
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In construing of this LEASE, it is understood that the LESSOR or the LESSEE may
be more than one person; that if the context so requires, the singular pronoun
shall be taken to mean and include the plural, the masculine, the feminine, and
the neuter, and that generally all grammatical changes shall be made, assumed
and implied to make the provisions hereof apply equally to corporations and to
individuals.
IN WITNESS WHEREOF, the respective parties have executed this instrument in
duplicate on this, the day, the month, and year first hereinbelow written, any
corporation signature being by authority of its Board of Directors.
LESSOR: By:____________
AMERICAN PROPERTY MANAGEMENT CORP. Name: Xxxxxxx X. Xxxxxxxx
as agent for and on behalf of
WESTON INVESTMENT CO. LLC
(Federal Tax ID# 00-0000000*) Title: Vice President of
Commercial Property
'Lessee need not supply Lessor a Federal 1099 Form
Address for Notices:
X.X. Xxx 00000 DATE:____________
Xxxxxxxx, Xxxxxx 00000-0000
LESSEE: New Visual Corporation, a Utah corporation
By: ____________________
Name: Xxxx Xxxxx
Address for Notices:
Title: President & CEO
DATE: March 4, 2005
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