EXHIBIT 10.46
Standard Form of OFFICE BUILDING LEASE Developed by PORTLAND METROPOLITAN
ASSOCIATION OF BUILDING OWNERS AND MANAGERS
OFFICE LEASE
This lease, made and entered into at Portland, Oregon, this 28 day of March
1997 by and between
LANDLORD: Xxxx X. Xxxxxx & Xxxx X. Xxxxxxxx *
and
TENANT: Jet Fax, Inc. *
Landlord hereby leases to Tenant the following: Approximately
2,585 rentable Sq.Ft. *
(12% load factor) Suite 102 (See Exhibit A) (the Premises)
in the Twin Oaks Executive Center (the Building)
at 0000 XX 000xx Xxxxxx, Xxxxxxxxx, Xxxxxx, for a term
commencing , May 1, 1997
and continuing through April 30, 2000
at a Monthly Base Rental as follows:*
Month 1-18 $3,554.38
Month 19-36 $3,715.94
Rent is payable in advance on the I day of each month
commencing May 1, 1997 *
Landlord and Tenant covenant and agree as
follows: *
1.1 DELIVERY OF Should Landlord be unable to deliver possession of
POSSESSION. the Premises on the SEE EXHIBIT B-1 date fixed for
the commencement of the term, commencement will be
deferred and Tenant shall owe no rent until notice
from Landlord tendering possession to Tenant. If
possession is not so tendered within 90 days
following commencement of the term, then Tenant may
elect to cancel this lease by notice to Landlord
within 10 days following expiration of the 90-day
period. Landlord shall have no liability to Tenant
for delay in delivering possession, nor shall such
delay extend the term of this lease in any manner
2.1 RENT PAYMENT. Tenant shall pay the Base Rent for the Premises and
any additional rent 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 Tenant
occupies the Premises, Additional rent means amounts
determined under Section 19 of this lease and any
other sums payable by Tenant to Landlord under this
lease. Rent not paid when due shall bear interest at
the rate of one-and-one-half percent per month until
paid. Landlord may at its option impose a late
charge of $.05 for each $1 of rent for rent payments
made more than 10 days late in lieu of interest for
the first month of delinquency, without waiving any
other remedies available for default. Failure to
impose a late charge shall not be a waiver of
Landlord's rights hereunder.
3.1 LEASE CONSIDERATION. Upon execution of the lease Tenant, has paid the
Base Rent for the first full month of the lease term
for which rent , is payable and in addition has paid
the sum of $3,715.94 as lease consideration.
Landlord may apply the lease consideration to pay
the cost of performing any obligation which Tenant
fails to perform within the time required by this
lease, but such application by Landlord shall not be
the exclusive remedy for tenant's default. If the
lease consideration is applied by Landlord, Tenant
shall on demand pay the sum necessary to replenish
the lease consideration to its original amount. To
the extent not applied by Landlord to cure defaults
by Tenant, the lease
Please Initial
consideration shall be applied against the rent
payable for the last month of the term if so
applied. The lease consideration shall not be
refundable.
4.1 USE. Tenant shall use the Premises as business for
General Office and all legal related uses and for
no other purpose without Landlord's written
consent. In connection with its use, Tenant 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 other
tenants of the Building. Tenant shall create no
nuisance nor allow any objectionable fumes, noise,
or vibrations to be emitted from the Premises.
Tenant shall not conduct any activities that will
increase Landlord's insurance rates for any
portion of the Building or that will in any manner
degrade or damage the reputation of the Building.
4.2 EQUIPMENT Tenant shall install in the Premises only such
office equipment as is customary for general office
use and shall not overload the floors or electrical
circuits of the Premises or Building or alter the
plumbing or wiring of the Premises or Building.
Landlord must approve in advance the location of and
manner of installing any wiring or electrical, heat
generating or communication equipment or
exceptionally heavy articles. All telecommunications
equipment, conduit, cables and wiring and any
additional air conditioning required because of heat
generating equipment or special lighting installed
by Tenant shall be installed and operated at
Tenant's expense.
4.3 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 Landlord's written
approval as to design, size, location, and color.
All signs installed by Tenant shall comply with
Landlord's standards for signs and all applicable
codes and all signs and sign hardware shall be
removed upon termination of this lease with the sign
location restored to its former state unless
Landlord elects to retain all or any portion
thereof.
5.1 UTILITIES Landlord will furnish water, electricity and
AND elevator service and, during the normal Building
SERVICES hours of 8:00 AM to 6:00 PM Monday through Friday
except holidays, will furnish heat and air-
conditioning (if the Building is air-conditioned).
Janitorial service will be provided in accordance
with the regular schedule of the Building, which
schedule and service may change from time to time.
Tenant shall comply with all government laws or
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 Tenant's use and
possession of the Premises, render Landlord liable
to Tenant for damages, or relieve Tenant from
performance of Tenant's obligations under this
lease. Landlord 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.
SEE EXHIBIT B-3
5.2 EXTRA USAGE. If Tenant uses excessive amounts of utilities or
services of any kind because of operation outside
of normal Building hours, high demands from office
machinery and equipment, nonstandard lighting, or
any other cause, Landlord may impose a reasonable
charge for supplying such extra utilities or
services, which charge shall by payable monthly by
Tenant in conjunction with rent payments. In case
of dispute over any extra charge under this
paragraph, Landlord shall designate a qualified
independent engineer whose decision shall be
conclusive on both parties. Landlord and Tenant
shall each pay one-half of the cost of such
determination.
6.1 MAINTENANCE Landlord shall have no liability for failure to
AND REPAIR. perform required maintenance and repair unless
written notice of such maintenance and repair is
given by Tenant and Landlord fails to commence
efforts to remedy the problem in a reasonable
time, not to exceed thirty (30) days, and manner.
Landlord shall have the right to erect scaffolding
and other apparatus necessary for the purpose of
making repairs, and Landlord shall have no
liability for interference with Tenant's use
because of repairs and installations. Tenant shall
have no claim against Landlord for any
interruption or reduction of services or
interference with Tenant's occupancy, and no such
interruption or reduction shall be construed as a
constructive or other eviction of Tenant. Repair
of damage caused by negligent or intentional acts
or breach of this lease by Tenant, its employees
or invitees shall be at Tenant's expense.
6.2 ALTERATIONS. Tenant shall not make any alterations, additions, or
improvements to the Premises, change the color of the
interior, or install any wall or floor covering without
Landlord's prior written consent ,SEE EXHIBIT B-4 any such
improvements, alterations, wiring, cables or conduit
installed by Tenant shall at once become part of the
Premises and belong to Landlord except for removable
machinery and unattached movable trade fixtures. Landlord
may at its option require that Tenant remove any
improvements, alterations, wiring, cables or conduit
installed by Tenant and restore the Premises to the original
condition upon termination of this lease. Landlord shall
have the right to approve the contractor used by Tenant for
any work in the Premises, and to post notices of
nonresponsibility in connection with work being performed by
Tenant in the Premises. SEE EXHIBIT B-5
Please Initial
EXHIBIT B-6 INSERTED
7.1 INDEMNITY. Tenant shall not allow any liens to attach to the Building
or Tenant's interest in the Premises as a result of its
activities.
Tenant shall indemnify and defend Landlord and its managing
agents from any claim, liability, damage, or loss occurring
on the Premises, arising out of any activity by Tenant, its
agents, or invitees or resulting from Tenant's failure to
comply with any term of this lease. Neither Landlord nor its
managing agent shall have any liability to Tenant because of
loss or damage to Tenant's property or for death or bodily
injury caused by the acts or omissions of other Tenants of
the Building, or by third parties (including criminal acts).
7.2 INSURANCE. Tenant shall carry liability insurance with limits of not
less than One Million Dollars ($1,000,000) combined single
limit bodily injury and property damage which insurance
shall have an endorsement naming Landlord and Landlord's
managing agent, if any, as an additional insured and
covering the liability insured under paragraph 7.1 of this
lease.
Tenant shall furnish a certificate evidencing such insurance
which shall state that the coverage shall not be cancelled
or materially changed without 10 days advance notice to
Landlord and Landlord's managing agent, if any. A renewal
certificate shall be furnished at least 10 days prior to
expiration of any policy.
8.1 FIRE OR "Major Damage" means damage by fire or other casualty to the
CASUALTY. 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 of the pre-damage value of
the Building to repair, or which is not covered by
insurance. In case of major damage, Landlord may elect to
terminate this lease by notice in writing to Tenant within
30 days after such date. If this lease is not terminated
following Major Damage, or if damage occurs which is not
Major Damage, Landlord shall promptly restore the Premises
to the condition existing just prior to the damage. Tenant
shall promptly restore all damage to tenant improvements or
alterations installed by Tenant or pay the cost of such
restoration to Landlord if Landlord 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 Landlord is substantially complete, with
reduction to be in proportion. SEE EXHIBIT B-7,-
8.2 WAIVER OF Tenant shall be responsible for insuring its personal
SUBROGATION property and trade fixtures located on the Premises and any
alterations or tenant improvements it has made to the
Premises. Neither Landlord. its managing agent nor Tenant
shall be liable to the other for any loss or damage caused
by water damage, sprinkler leakage, or any of the risks that
are or could be covered by a standard at 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 or injury
9.1 EMINENT If a condemning authority takes title by eminent domain or
DOMAIN by agreement in lieu thereof to the entire Building or a
portion sufficient to render the Premises unsuitable for
Tenant's use, then either party may elect to terminate this
lease effective on the date that possession is taken by the
condemning authority. Rent shall be reduced for the
remainder of the term in an amount proportionate to the
reduction in area of the Premises caused by the taking. All
condemnation proceeds shall belong to Landlord, and Tenant
shall have no claim against Landlord or the condemnation
award because of the taking.
10.1 ASSIGNMENT This lease shall bind and inure to the benefit of the
AND parties, their respective heirs, successors, and assigns,
SUBLETTING provided that Tenant shall not assign its interest under
this lease or sublet all or any portion of the Premises
without first obtaining Landlord's consent in writing. SEE
EXHIBIT B-8. This provision shall apply to all transfers by
operation of law including but not limited to mergers and
changes in control of Tenant. No assignment shall
Please Initial
relieve Tenant of its obligation to pay rent or perform
other obligations required by this lease, and no consent to
one assignment or subletting shall be a consent to any
further assignment or subletting. Landlord shall not
unreasonably withhold its consent to any assignment or
subletting provided the effective rental paid by the
subtenant or assignee is not less than the current scheduled
rental rate of the Building for comparable space and the
proposed Tenant is compatible with Landlord's normal
standards for the Building. If Tenant proposes a subletting
or assignment to which Landlord is required to consent under
this paragraph, Landlord shall have the option of
terminating this lease and dealing directly with the
proposed subtenant 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 Tenant
as a result of such transaction shall be paid to landlord
promptly following its receipt by Tenant. Tenant shall pay
any reasonable costs incurred by Landlord in connection with
a request for assignment or subletting, including reasonable
attorneys' fees.
11.1 DEFAULT. Any of the following shall constitute a default by Tenant under
this lease:
(a) Tenant's failure to pay rent or any other charge under this
lease within 10 days after it is due, or failure to comply with
any other term or condition within 20 days following written
notice from Landlord specifying the noncompliance. If such
noncompliance cannot be cured within the 20-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 of this lease.
(b) Tenant's insolvency, business failure or 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
(c) Assignment or subletting by Tenant in violation of paragraph
10.1
(d) Vacation or abandonment of the Premises without the written
consent of Landlord or failure to occupy the Premises within 20
days after notice tendering possession.
FOR
DEFAULT.
11.2 REMEDIES In case of default as described in paragraph 11.1 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
(a) Landlord may at its option terminate the lease by notice to
Tenant. With or without termination, Landlord may retake
possession of the Premises and may use or relet the Premises
without accepting a surrender or waiving the right to damages.
Following such retaking of possession, efforts by Landlord to
relet the Premises shall be sufficient if Landlord follows its
usual procedures for finding tenants for the space at rates not
less than the current rates for other comparable space in the
Building. If Landlord has other vacant space in the Building,
prospective tenants may be placed in such other space without
prejudice to Landlord's claim to damages or loss of rentals from
Tenant
(b) Landlord may recover all damages caused by Tenant's default
which shall include an amount equal to rentals lost because of
the default, lease commissions paid for this lease, and the
unamortized cost of any tenant improvements installed by
Landlord to meet Tenant's special requirements. 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. Such damages
shall be measured by 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 judgement at
the prevailing interest rate on judgements.
(c) Landlord may make any payment or perform any obligation
which Tenant has failed to perform, in which case Landlord shall
be entitled to recover from Tenant upon demand all amounts so
expended, plus interest from the date of the expenditure at the
rate of one-and-one-half percent per month. Any such
Please Initial
payment or performance by Landlord shall not waive Tenant's
default.
12.1 SURRENDER. On expiration or early termination of this lease Tenant
shall deliver all keys to Landlord and surrender the
Premises vacuumed, swept, and free of debris and in the
same condition as at the commencement of the term subject
only to reasonable wear from ordinary use. Tenant 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
he property, and Landlord may dispose of it in any manner
without liability. If Tenant fails to vacate the Premises
when required, including failure to remove all its
personal property, Landlord may elect either: (I) to treat
Tenant as a tenant from month to month, subject to the
provisions of this lease except that rent shall be one-and-
one-half times the total rent being charged when the lease
term expired: or (II) to eject Tenant from the Premises
and recover damages caused by wrongful holdover.
13.1 REGULATIONS. Landlord 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 promoting
safety, health (including regulation or prohibition of
smoking), 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.
14.1 ACCESS During times other than normal Building hours Tenant's
officers and employees or those having business with
Tenant may be required to identify themselves or show
passes in order to gain access to the Building. Landlord
shall have no liability for permitting or refusing to
permit access by anyone SEE EXHIBIT B-9. Landlord shall
have the right to enter upon the Premises at any time by
passkey or otherwise to determine Tenant's compliance with
this lease, to perform necessary services, maintenance and
repairs or alterations to the Building or the Premises, or
to show the Premises to any prospective tenant or
purchasers. Except in 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 Tenant
14.2 FURNITURE Tenant shall move furniture and bulky articles in and out of
AND BULKY the Building or make independent use of the elevators only
ARTICLES at reasonable times approved by Landlord following at
least 24 hours written notice to Landlord of the intended
move. Landlord will not unreasonably withhold its consent
under this paragraph.
15.1 NOTICES. Notices between the parties relating to this lease shall be
in writing, effective when delivered, or if mailed,
effective on the second day following mailing, postage
prepaid, to the address for the party stated in this lease
or to such other address as either party may specify by
notice to the other. Notice to Tenant may always be
delivered to the Premises. Rent shall be payable to
Landlord at the same address and in the same manner, but
shall be considered paid only when received.
16.1 SUBORDINATION. This lease shall be subject to and subordinate to any
mortgage or deeds of trust, or land sale contracts
(hereafter collectively referred to as encumbrances) now
existing against the Building. At Landlord'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 Tenant shall execute such
documents as may reasonably be requested by Landlord or
the holder of the encumbrance to evidence this
subordination.
16.2 TRANSFER If the Building is sold or otherwise transferred by
OF BUILDING Landlord or any successor, Tenant shall attorn to the
purchaser or transferee and recognize it as the lessor
under this lease, and, provided the purchaser or
transferee assumes all obligations hereunder, the
transferor shall have no further liability hereunder.
16.3 ESTOPPELS Either party will within 10 days after 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 the
other party; the dates to which rent has been paid in
Please Initial
advance, and the amount of any security deposit 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, Tenant will agree to give such holder or lessor
notice of and an opportunity to cure any default by
Landlord under this lease.
17.1 ATTORNEYS' In any litigation arising out of this lease, the
FEES. prevailing party shall be entitled to recover reasonable
attorney's fees at trial and on any appeal. If Landlord
incurs attorneys' fees SEE EXHIBIT B-10, because of a
default by Tenant, Tenant shall pay all such fees whether
or not litigation is filed.
18.1 QUIET Landlord warrants that so long as Tenant complies with all
ENJOYMENT. terms of this lease it shall be entitled to peaceable and
undisturbed possession of the Premises free from any
eviction or disturbance by Landlord. SEE EXHIBIT B-11.
Neither Landlord nor its managing agent shall have any
liability to Tenant 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.
19.1 ADDITIONAL Whenever for any July 1 - June 30 tax year the real
RENT: property taxes levied against the Building and its
TAX underlying Tax Adjustment land exceed those levied for the
ADJUSTMENT 19 7 - 1998 tax year, then the monthly rental for the
next succeedingcalendar year shall be increased by one-
twelfth of such tax increase times Tenant's proportion-ate
share. "Real property taxes" as used herein means all
taxes and assessments of any public authority against the
Building and the land on which it is located, the cost of
contesting any tax and any form of fee or charge imposed
on Landlord as a direct consequence of owning or leasing
the Premises, including but not limited to rent taxes,
gross receipt taxes, leasing taxes, or any fee or charge
wholly or partially in lieu of or in substitution for ad
valorem real property taxes or assessments, whether now
existing or hereafter enacted. If any portion of the
Building is occupied by a tax-exempt tenant so that the
Building has a partial tax exemption under ORS 307.112 or
a similar, statute, then real property taxes shall mean
taxes computed as If such partial exemption did not exist.
If a separate assessment or identifiable tax increase
arises because of improvements to the Premises, then
Tenant shall pay 100 percent of such increase.
19.2 TENANT'S "Tenant's proportionate share" as used herein means the
PROPORTIONATE area of the Premises, divided by the total area of office
SHARE space in the Building, with area determined using one of
the methods of building measurement defined by the
Building Owners and Managers Association (BOMA). Tenant's
proportionate share as of the lease commencement data
shall be 18 percent as predicated on 14,376SF of building
area.
19.3 ADDITIONAL Tenant shall pay as additional rent its proportionate share
RENT: as defined in paragraph 19.2, of the amount by which
OPERATING operating expenses for the Building increase over during
EXPENSE the calendar year 1997 (base year). Effective January 1 of
ADJUSTMENT each year commencing with calendar year 1998, Landlord
shall estimate amount by which operating expenses are
expected to increase, if any, over those incurred in the
base year. Monthly rental for that year shall be increased
by one-twelfth of Tenant's share of the estimated increase.
Following the end of each calendar year, Landlord shall
compute the actual increase in operating expenses and xxxx
Tenant for any deficiency or credit Tenant with any excess
collected. As used herein 'operating expenses' shall mean
all costs of operating and maintaining the Building as
determined by standard real estate accounting practice,
including, but not limited to: all water and sewer charges;
the cost of natural gas and electricity provided to the
building; Janitorial and cleaning supplies and services;
administration costs and management fees; superintendent
fees; security services, if any; insurance premiums;
licenses; permits for the
Please Initial
operation and maintenance of the building and all of its
component elements and mechanical systems ;the annual
amortized capital improvement cost (amortized over such a
period as Landlord See may select but not shorter than the
period allowed under the Internal Revenue Code and at a
current market interest rate) for any capital improvements
to the Building required by any governmental authority or
those which have a reasonable probability of improving the
operating efficiency of the Building. SEE EXHIBIT B-12.
20.1 COMPLETE This lease and the attached Exhibits and Schedules if any,
AGREEMENT. constitute the entire agreement of the parties and supersede
all prior written and oral agreements and representations.
Neither Landlord nor Tenant is relying on any
representations other than those expressly set forth herein.
20.2 SPACE Unless otherwise stated in this Lease, the Premises are
LEASED AS leased as is in the condition now existing with no
IS alterations or other work to be performed by Landlord. SEE
ADDENDUM A.
20.3 CAPTIONS The titles to the paragraphs of this lease are descriptive
only and are not intended to change or influence the meaning
of any paragraph or to be part of this lease.
20.4 NONWAIVER. Failure by Landlord to promptly enforce any regulation,
remedy or right of any kind under this lease shall not
constitute a waiver of the same and such right or remedy may
be asserted at any time after Landlord becomes entitled to
the benefit thereof notwithstanding delay in enforcement
20.5 EXHIBITS. The following Exhibits are attached hereto and incorporated
as a part of this lease:
Exhibit A- Space Plan
Addendum A-Other Terms & Conditions
Exhibit B-Inserts
21.1 See Exhibit B-13.
Please Initial
IN WITNESS WHEREOF, the duly authorized representatives of the parties have
executed this lease as of the day and year first written above.
LANDLORD:
Xxxx Xxxxxx & Xxxx Xxxxxxxx By: By:
--------------------------------------------------------------------------
Address for notices: Title: Title:
--------------------------------------------------------------------------
0000 XX 000/xx/
Xxxxxxxxx, XX 00000 By: By:
--------------------------------------------------------------------------
Title: Title:
--------------------------------------------------------------------------
TENANT: JetFax, Inc. By: By:
--------------------------------------------------------------------------
Address for notices: Title: Title:
--------------------------------------------------------------------------
0000 Xxxxxx Xxxx
Xxxxx Xxxx, XX 00000 By:
--------------------------------------------------------------------------
Attn: Xx. Xxxx Xxxxxxxx Title: Title:
--------------------------------------------------------------------------
Please Initial
