Exhibit 10.5
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LEASE AGREEMENT
THIS LEASE AGREEMENT made and entered into this 5th day of December ,
1997, by and between Alcoh Development, Inc., a Utah corporation, Xxxx X. Xxxxx,
Xxxxxx X. Xxxxx, and Reelman Investments, L.C., a Utah limited liability company
(all hereinafter referred to as "Lessor") and BSD Medical, Inc., a Delaware
corporation (hereinafter referred to as "Lessee").
WITNESSETH:
WHEREAS, the Lessor is the owner of certain real property located at
0000 Xxxx 0000 Xxxxx, Xxxx Xxxx Xxxx, Xxxx; and
WHEREAS, Lessee wishes to lease all of said premises; and
WHEREAS, This is to be a lease in which Lessee pays all costs,
expenses, repairs, replacement costs and in which the Lessor shall receive its
rent, totally net, of any cost or expense whatsoever.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained therein and for other good and valuable consideration, the parties
agree and contract as follows:
1. Premises. The Lessor for and in consideration of the rents,
covenants and agreements hereinafter specified, leases the premises located at
0000 Xxxx 0000 Xxxxx, Xxxx Xxxx Xxxx, Xxxx, together with the fixtures,
equipment and appurtenances thereto, hereinafter called the "premises or leased
property, or subject property", to the Lessee. Lessor retains free title to all
of the property leased and upon reasonable advanced notice, shall have access to
and through the leased premises.
2. Use.
a. Lessee hereby agrees to lease the premises according to the
terms and conditions of this Lease.
b. Lessee agrees to use the premises for any lawful purpose.
Lessor makes no representation or warranty concerning zoning
requirements for any such uses.
3. Term. This lease shall be for a period of approximately five (5)
years commencing the 1st day of December, 1997 and terminating on the 1st day of
December, 2002.
4. Rental. The Lessee shall pay to the Lessor the base rental sum of
$391,980.00 ("Rent") for the lease term, payable in equal monthly installments
of $6,533.00 per month payable in advance, commencing on the first day of
December, 1997, and on the first day of each month thereafter during the term of
the Lease.
5. Prepayment of Rent and Deposit. Lessee shall pay the first month's
rent on the date of execution of this Lease, and, in addition, shall pay the sum
of $6,533.00 as a security deposit on the date of the execution of the lease.
All interest on the security deposit shall belong to Lessor. Said security
deposit to be returned thirty days after the expiration of the Lease and all
extensions thereof if all obligations of the Lessee have been paid in full and
fully preformed and Lessee leaves the premises in the condition required by the
Lease. Said security deposit shall not be returned if Lessee is behind in any
rent or Lessee has not fully, completely and promptly fulfilled or cured each
and every other term and condition of the Lease.
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Additional Rent. All taxes, utilities, insurance charges, costs,
interest, penalties and expenses that Lessee assumes or agrees to pay in this
Lease shall be deemed to be additional rent ("Additional Rent"), and, in the
event of non-payment, Lessor shall have all the rights and remedies as herein
provided for failure to pay rent. Lessee shall pay all such Additional Rent from
the effective date of the Lease.
Interest. Lessee shall pay to Lessor, interest at the rate of eighteen
percent (18%) per annum on any amount due from Lessee not paid when due, as well
as any amount that Lessor may elect to pay to meet an obligation of Lessee
pursuant to the lease, which has not been met.
6. Time. Time is of the essence of this Lease. If any payment or sum
due under this Lease is not paid when due or within ten (10) days thereafter,
Lessee shall pay the greater of (a) a late fee of ten percent (10%) of the
amount not timely paid; or (b) $500.00.
7. Place of Payment. All payments shall be made payable to Lessor and
shall be delivered to Lessor at 000 Xxxxx 000 Xxxx, Xxxx Xxxx Xxxx, XX 00000 or
such other address as Lessor shall designate in writing.
8. Lessee's Acceptance of Property and Title. The Lessee represents
that it has been in occupancy of the premises, has inspected the leased
premises, fixtures and equipment and that the leased premises, the sidewalks and
the structures adjoining the same, and the present uses and non-uses thereof
have been examined by the Lessee. The Lessee accepts the same in the condition
in which they now are, without representation or warranty, express or implied,
in fact or by law. Lessee is aware of the condition of that the premises and
agrees to accept the premises in its "as is" condition.
9. Utilities. All applications and connections for necessary utility
services on the premises shall be made in the name of Lessee only and Lessee
shall be solely liable for all utility charges as they become due.
10. Maintenance and Repairs.
a. The Lessee shall, at all times during the term and all
extensions thereof, at its own expense, put and maintain in thorough
repair and in the same or better condition than when received and in a
safe condition, the leased property and its fixtures and equipment and
appurtenances (including exterior structural walls and roof) whether or
not necessitated by wear, tear, obsolescence or defects, latent or
otherwise. Lessee shall replace at its sole cost, any part of the
building requiring replacement. Lessee shall be responsible for repair
and replacement of any glass breakage. Lessee shall be responsible for
maintaining and keeping in proper repair all landscaping, grounds,
sprinkler system, and sidewalks.
b. The Lessee shall not accumulate nor permit the accumulation of
dirt, materials or substances which would render the premises
unsanitary, unhealthy, unsightly or dangerous. Lessee shall be
responsible for janitorial services for the leased premises.
c. On default of the Lessee in making such maintenance, repairs or
replacements as required herein, and after thirty (30) days notice to
Lessee (except in the case of emergency no notice shall be necessary)
the Lessor may, but shall not be required to make such maintenance,
repairs and replacements for the Lessee's account, and the expense
thereof shall constitute and be collectable as Additional Rent, due and
payable on the first day of the month next following the month in which
the work is performed.
d. Lessee shall not make any changes, alterations, additions, or
improvements to the building without Lessor's prior written approval,
which will not be unreasonably withheld.
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e. It is expressly understood and agreed that all improvements and
additions to the leased premises shall become the property of the
Lessor at the termination of the Lease if Lessor so elects; or Lessor
may elect to require Lessee to remove any and all of Lessee's
improvements and to restore the premises to the condition at the
commencement of the lease. It is agreed that at the termination of the
Lease, the premises will be left in good condition.
f. Wall, floor, and ceiling coverings shall be installed by Lessee
only with Lessor's prior written approval. Said approval not to be
unreasonably withheld.
11. Subordination and Lessor's Default.
a. This Lease is and shall always be subordinate to any mortgage
or deed of trust which is now or shall at any time be placed upon the
premises or any part thereof of the building of which the premises are
a potion and Lessee agrees to execute and deliver any instrument,
without costs, which may be deemed necessary to further effect the
subordination of this Lease to any such mortgage or deed of trust. In
the event that Lessor shall default under the terms of this Lease,
Lessee shall give Lessor written notice specifically setting forth the
alleged default and providing Lessor with a minimum of 30 days, and
Lessor shall have a reasonable time to cure such default. Lessee agrees
to give any mortgage and/or trust deed holder by certified mail, a copy
of any Notice of Default served upon the Lessor, provided that prior to
such notice Lessee has been notified in writing, (by way of Notice of
Assignment of Rents and Leases, or otherwise) of the address of such
mortgage and/or trust deed holder. Lessee further agrees that Lessor
shall have thirty (30) days within which to cure any alleged default
and that if Lessor shall have failed to cure such default within the
time provided for in this Lease, then Lessor or mortgage and/or Trust
Deed holder shall have an additional time as may be necessary to cure
if Lessor or any mortgage or Trust Deed holder has commenced and is
diligently pursuing the remedies necessary to cure such default,
(including in the case of any mortgage and/or Trust Deed holder,
commencement of foreclosure proceedings, if necessary to effect such
cure) in which event this Lease shall not be terminated while such
remedies are being so diligently pursued.
b. Provided Lessee is not in default under this Lease, including
any applicable cure or grace period, no mortgage or trust deed holder
shall, in the exercise of any right, remedy, or privilege granted by
any mortgage or trust deed, or otherwise available to mortgage or trust
deed holder at law or in equity, disturb Lessee's possession and such
mortgage or trust deed holder shall recognize the Lessee's rights under
this Lease, and this Lease including, without limitation, the option to
purchase, will continue in full force and effect according to its
terms.
12. Default or Breach. Each of the following events shall constitute a
default or breach of this lease by Lessee:
a. If Lessee shall not pay to Lessor any Rent within ten (10) days
after the date due.
b. If Lessee shall not pay to Lessor any Additional Rent within
the ten (10) days after written notice from Lessor.
c. If Lessee shall file a petition in bankruptcy or insolvency or
for reorganization under any bankruptcy act, or shall voluntarily take
advantage of any such act by answer or otherwise, or shall make an
assignment for the benefit of creditors.
d. If involuntary proceedings under any bankruptcy law or
insolvency act shall be instituted against Lessee, or if a receiver or
trustee shall be appointed of all or substantially all of the property
of Lessee, and such proceedings shall not be dismissed or the
receivership or trusteeship vacated within fifteen (15) days after the
institution or appointment.
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e. If Lessee shall fail to perform or comply with any of the
terms, conditions or covenants of this Lease (other than non payment of
Rent or Additional Rent) and if the nonperformance shall continue for a
period of thirty (30) days after notice thereof by Lessor to Lessee,
or, if the performance cannot be reasonably had within the thirty (30)
day period, Lessee shall not in good faith have commenced performance
within the thirty (30) day period and shall not diligently proceed to
completion of performance.
f. If Lessee shall vacate the premises or abandon the premises as
defined in U.C.A. ss. 78-36-12.3.
13. Lessor's Rights Upon Default.
a. If Lessee shall fail to remedy any default within the notice
period, if any, as provided for in paragraph 12 hereof, then this Lease
may be terminated at Lessor's written option;
b. Upon default of the Lessee, the Lessee shall peacefully
surrender the premises to the Lessor and the Lessor upon or at any time
after such default may, without further notice, re-enter the premises
and repossess it by any and all lawful means and may dispossess the
Lessee and remove the Lessee and all other persons and property from
the premises and may have, hold and enjoy the premises and the right to
receive all rental income therefrom. Lessor's obtaining possession of
the premises shall not be a termination of the lease unless Lessor
gives written notice of election to terminate the lease;
c. At any time after either the default of Lessee (and notice
thereof is given to Lessee if required by paragraph 12 hereof) or at
any time after a termination of this Lease, the Lessor may re-let the
premises or any part thereof, in the name of Lessor or otherwise, for
such term which may be greater or less than the period which would
otherwise have constituted the balance of the term of this Lease and on
such conditions which may include concession, free rent, or less rent
than Lessee is required to pay, as the Lessor, in its sole discretion,
may determine, and may collect and receive the rent therefrom;
d. The Lessor shall in no way be responsible or liable for any
failure to re-let the leased property or any part thereof, or for any
failure to collect any rent due upon such re-letting;
e. No entry, possession or reletting of the premises shall be
deemed a termination of this Lease nor shall it be considered a
release, of any of Lessee's liability under the lease;
f. No termination of this Lease resulting from Lessee's default
shall relieve the Lessee of its liability and obligations under this
Lease (whether those obligations arise or become due before the date of
termination or afterward), and such liability and obligations shall
survive any such termination.
g. In the event of default by Lessee, (whether or not the lease
has been terminated and whether or not the leased property or any part
thereof shall have been re-let) the Lessee shall pay to the Lessor the
Rent, Additional Rent, common area expenses, and all other charges
required to be paid by the Lessee up to the time of such termination,
and thereafter the Lessee, until the end of what would have been the
term of this Lease shall be liable to the Lessor for, and shall pay to
the Lessor, as and for agreed "current damages" for the Lessee's
default:
1. The equivalent of the amount of the Rent and Additional
Rent which would be payable under this Lease by the Lessee if this
lease were still in effect, less
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2. The net proceeds of any re-letting of the premises
effected after deducting all the Lessor's expenses in connection
with such re-letting, including, without limitation, all
repossession costs, brokerage commissions, legal expenses and
reasonable attorney's fees;
h. The Lessee shall pay such "current damages", herein called
deficiency, to the Lessor monthly on the days on which the rent and
additional rent would have been payable under this lease if this lease
were still in effect, and as such deficiency shall arise;
i. Lessor shall have the right to recover from Lessee any and all
of the following:
1. The worth at the time of award of the unpaid rent which
had been earned at the time of termination;
2. The worth at the time of award of the amount by which
the unpaid rent which would have been earned after termination
until the time of award exceeds the amount of such rental loss
that Lessee proves could have been reasonably avoided;
3. The worth at the time of award of the amount by which
the unpaid rent for the balance of the term after the time of
award exceeds the amount of rental loss that Lessee proves could
be reasonably avoided; and
4. Any other amount necessary to compensate Lessor for all
the detriment proximately caused by Lessee's failure to perform
its obligations under this Lease or which in the ordinary course
of things would be likely to result therefrom, including, but not
limited to, any attorneys' fees, broker's commissions or finder's
fees (not only in connection with the reletting of the Premises,
but also that portion of any leasing commission paid by Lessor in
connection with this Lease which is applicable to that portion of
the Term which is unexpired as of the date on which this Lease is
terminated); the then unamortized cost of any Lessee improvements
constructed for or on behalf of Lessee by or at the expense of
Lessor or of any moving allowance or other concession made
available to Lessee and/or paid by Lessor pursuant to this Lease;
any costs for repairs, clean-up, refurbishing, removal (including
the repair of any damage caused by such removal) and storage (or
disposal) of Lessee's personal property, equipment, fixtures, and
anything else that Lessee is required (under this Lease) to remove
but does not remove; any costs for alterations, additions and
renovations; and any other costs and expenses, including
reasonable attorneys' fees and costs incurred by Lessor in
regaining possession of and reletting (or attempting to relet) the
Premises.
h. Nothing herein contained shall limit or prejudice the right of
the Lessor to prove for and obtain as damages by reason of such
termination an amount equal to the maximum allowed by law, whether or
not such amount be greater, equal to, or less than the amount of the
differences referred to above;
i. If the net proceeds of any re-letting of the premises after
deductions exceeds the amount due under this Lease, any excess shall
belong to the Lessor and Lessee shall have no claim to the same;
14. Condemnation.
a. Total or Partial Taking. If all or substantially all of the
Premises is permanently condemned or taken in any manner for public or
quasi-public use, including but not limited to, a conveyance or
assignment in lieu of the condemnation or taking, this Lease shall
automatically terminate as of the earlier of the date on which actual
physical possession is taken by the condemnor or the date of
dispossession of Lessee as a result of such condemnation or other
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taking. If less than all or substantially all of the Premises is so
condemned or taken, this Lease shall automatically terminate only as to
the portion of the Premises so taken as of the earlier of the date on
which actual physical possession is taken by the condemnor or the date
of dispossession of Lessee as a result of such condemnation or taking.
If such portion of the Building is condemned or otherwise taken so as
to require, in the opinion of Lessor, a substantial alteration or
reconstruction of the remaining portions thereof, this Lease may be
terminated by Lessor, as of the date on which actual physical
possession is taken by the condemnor or dispossession of Lessee as a
result of such condemnation or taking, by written notice to Lessee
within sixty (60) days following notice to Lessor of the date on which
such physical possession is taken or dispossession will occur.
b. Award. The award in any condemnation proceeding or other
proceeding for taking the premises, building for public or quasi-public
use, including, without limitation, any award made for the value of the
leasehold estate created by this Lease. Lessee shall also have the
right to claim and recover from the condemnor, but not from Lessor,
such compensation as may be separately awarded or recoverable by Lessee
in Lessee's own right on account of the interruption of or damage to
Lessee's business by reason of the condemnation and for or on account
of any cost or loss to which Lessee might incur in removing Lessee's
merchandise, furniture and other personal property, fixtures, and
equipment from the premises.
c. Abatement in Rent. In the event of a partial condemnation or
other taking that does not result in a termination of this Lease as to
the entire premises pursuant to this Section, the rent and all other
charges under this Lease shall xxxxx in proportion to the portion of
the premises taken by such condemnation or other taking. If this Lease
is terminated, in whole or in part, pursuant to any of the provisions
of this Section, all rentals and other charges payable by Lessee to
Lessor hereunder and attributable to the premises taken shall be paid
up to the date upon which actual physical possession shall be taken by
the condemnor. Lessor shall be entitled to retain all of the Security
Deposit until such time as this Lease is terminated as to all of the
premises.
d. Temporary Taking. If all or any portion of the premises is
temporarily condemned or otherwise taken for public or quasi-public use
for a limited period of time, this Lease shall remain in full force and
effect and Lessee shall continue to perform all terms, conditions and
covenants of this Lease; provided, however, the rent and all other
charges payable by Lessee to Lessor hereunder shall xxxxx during such
limited period in proportion to the portion of the premises that is
rendered unleasable and unusable as a result of such condemnation or
other taking. Lessor shall be entitled to receive the entire award made
in connection with any such temporary condemnation or other taking.
Lessee shall have the right to claim and recover from the condemnor,
but not from Lessor, such compensation as may be separately awarded or
recoverable by Lessee in Lessee's own right on account of damages to
Lessee's business by reason of the condemnation and for or on account
of any cost or loss to which Lessee might be put in removing Lessee's
merchandise, furniture and other personal property, fixtures and
equipment or for the interruption of or damage to Lessee's business.
e. Transfer of Lessor's Interest to Condemnor. Lessor may, without
any obligation or liability to Lessee, agree to sell and/or convey to
the condemnor the Premises, the Building, the Project or any portion
thereof, sought by the condemnor, free from this Lease and the rights
of Lessee hereunder, without first requiring that any action or
proceeding be instituted or, if instituted, pursued to a judgment. In
such event, this Lease shall be deemed terminated effective on the date
of such transfer.
f. Lessee's Option Rights. If any condemnation action is
threatened or commenced at or after the beginning of the nineteenth
(19th) month of this Lease, Lessor shall give notice of the same to
Lessee and Lessee shall have the right to exercise the option provided
for in paragraph 43 of this Lease.
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15. Damage to Property.
a. Minor Insured Damage. In the event the premises or the
building, or any portion thereof, is damaged or destroyed by any
casualty that is covered by insurance, the Lessor shall rebuild, repair
and restore the damaged portion thereof, provided that (1) the amount
of insurance proceeds available to Lessor or such amounts, together
with additional amounts supplied by Lessee, equals or exceeds the cost
of such rebuilding, restoration and repair, (2) such rebuilding,
restoration and repair can be completed within one hundred eighty (180)
days after the work commences in the opinion of a registered architect
or engineer appointed by Lessor, (3) the damage or destruction has
occurred more than twelve (12) months before the expiration of the term
and (4) such rebuilding, restoration, or repair is then permitted,
under applicable governmental laws, rules and regulations, to be done
in such a manner as to return the damaged portion thereof to
substantially its condition immediately prior to the damage or
destruction, including, without limitation, the same net rentable floor
area. To the extent that insurance proceeds must be paid to a mortgage
or beneficiary under, or must be applied to reduce any indebtedness
secured by, a mortgage or deed of trust encumbering the premises,
building or project, such proceeds, for the purposes of this
subsection, shall be deemed not available to Lessor unless such
mortgagee or beneficiary permits Lessor to use such proceeds for the
rebuilding, restoration, and repair of the damaged portion thereof.
Notwithstanding the foregoing, Lessor shall have no obligation to
repair any damage to, or to replace any of, Lessee's personal property,
furnishings, trade fixtures, equipment or other such property or
effects of Lessee.
b. Major or Uninsured Damage. In the event the premises or the
building, or any portion thereof, is damaged or destroyed by any
casualty to the extent that Lessor is not obligated, under subsection
(a) above, to rebuild, repair or restore the damaged portion thereof,
then Lessor shall within sixty (60) days after such damage or
destruction, notify Lessee of its election, at its option, to either
(1) rebuild, restore and repair the damaged portions thereof, in which
case Lessor's notice shall specify the time period within which Lessor
estimates such repairs or restoration can be completed; or (2)
terminate this Lease effective as of the date the damage or destruction
occurred. If Lessor does not give Lessee written notice within sixty
(60) days after the damage or destruction occurs of its election to
rebuild or restore and repair the damaged portions thereof, Lessor
shall be deemed to have elected to terminate this Lease.
Notwithstanding the foregoing, if Lessor does not elect to terminate
this Lease, Lessee may terminate this Lease if either (i) Lessor
notifies Lessee that such repair or restoration cannot be completed
within three hundred and sixty-five (365) days after the work is
commenced or (ii) the damage or destruction occurs within the last
twelve (12) months of the Term, unless Lessee's actions or omissions
are the cause of the damage. If Lessee may so elect by written notice
to Lessor which must be given within fifteen (15) days after Lessee's
receipt of Lessor's notice of its election to rebuild. Upon Lessor's
receipt of such notice, the termination shall be effective as of the
date of the destruction occurred.
c. Abatement of Rent. There shall be an abatement of rent by
reason of damage to or destruction of the premises or the building, or
any portion thereof, to the extent that (i) Lessor receives insurance
proceeds for loss of rental income attributable to the premises and
(ii) the floor area of the premises cannot be reasonably used by Lessee
for conduct of its business, in which event the monthly ?? Amounts of
Rent shall xxxxx proportionately according to (i) or (ii) above, as
appropriate, commencing on the date that the damage to or destruction
of the premises or building has occurred, and except that, if Lessor or
Lessee elects to terminate this Lease as provided in Subsection (b).
above, no obligation shall accrue under this Lease after such
termination. Notwithstanding the provisions of this Section, if any
such damage is due to the fault or neglect of Lessee, any person
claiming through or under Lessee, or any of their employees, suppliers,
shippers, servants, customers or invitees, then there shall be no
abatement of rent by reason of such damage, unless and until Lessor is
reimbursed for such abatement pursuant to any rental insurance policy
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that Lessor may, in its sole discretion, elect to carry. Lessee's right
to terminate this Lease in the event of any damage or destruction to
the premises or building, is governed by the terms of this section and
therefore Lessee herby expressly waives the provisions of any and all
laws. Whether now or hereafter in force, and whether created by
ordinance, statue, judicial decision, administrative rules or
regulation, or otherwise, that would cause this Lease to be terminated,
or give Lessee a right to terminate this Lease upon any damage to or
destruction of the premises or building that occurs.
d. Waiver. Lessee shall have no claim against Lessor for any
damage suffered by Lessee by reason of any such damage, destruction,
repair or restoration. Lessee waives the provisions of and any present
or future laws or case decisions to the same effect. Upon completion of
such repair or restoration, Lessee shall promptly refixture the
premises substantially to the condition they were in prior to the
casualty and shall reopen for business if closed by the casualty.
16. Restrictions on Use. Lessee shall not keep, use or sell anything
prohibited by any policy of fire insurance covering the premises, and shall
comply with all requirements of the insurers' applicable to the premises
necessary to keep in force the fire and liability insurance, provided that, in
the event that Lessee uses or maintains the building in such a manner that
Lessor's insurance rates increase over its present amount, Lessee shall pay to
Lessor within thirty (30) days of request, the amount of the increased insurance
premiums.
17. Waste, Nuisance or Unlawful Activity. Lessee shall not allow any
waste or nuisance on the premises, or use or allow the premises to be used for
any unlawful purpose.
18. Insurance.
a. Lessee. During the Term hereof, Lessee shall keep in full force
and effect the following insurance and shall provide appropriate
insurance certificates evidencing such coverage to Lessor prior to the
commencement of this Lease and annually thereafter before the
expiration of each policy and each such policy shall name the Lessor as
an additional named insured:
1. Commercial general liability insurance with a limit of
not less than One Million Dollars ($1,000,000.00) combined single
limit per occurrence, against claims for personal injury liability
including, without limitation, bodily injury, death or property
damage liability and covering (i) the business (es) operated by
Lessee and by any Sublessee of Lessee on the premises, (ii)
operations of independent contractors engaged by Lessee for
services or construction on or about the premises, and (iii)
contractual liability;
2. All risk special form policy, including collapse,
earthquake and flood insurance insuring the building and project
of which the premises are a part, in an amount not less than one
hundred (100%) of the full replacement cost thereof; and
3. All-risk property insurance, insuring the personal
property, furniture, furnishings and fixtures belonging to Lessee
located on the premises for not less than one hundred percent
(100%) of the actual replacement value thereof;
4. Workers' compensation in the amount required by law.
5. Business interruption or loss of income insurance in
amounts satisfactory to Lessor, with a rental interruption rider
assuring Lessor that the rent due hereunder will be paid for a
period of not less than twelve (12) months if the Premises are
destroyed or rendered inaccessible by a risk insured against by a
policy of all risk insurance; and
6. Such other insurance as Lessor deems reasonably
necessary or as it customary.
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Each insurance policy obtained by Lessee pursuant to this Lease shall
contain a clause that the insurer will provide Lessor with at least thirty (30)
days prior to written notice of any material change, non-renewal or cancellation
of the policy, shall be in a form satisfactory to Lessor and shall be takenout
with an insurance company authorized to do business in the State in which the
Project is located and rated not less than Best's Financial Class X and Best's
Policy Holder Rating "A". In addition, any insurance policy obtained by Lessee
shall be written as a primary policy, and shall not be contributing with or in
excess of any coverage which Lessor may carry, and shall have loss payable
clauses satisfactory to Lessor and in favor of Lessor naming Lessor, and any
other party reasonably designated by Lessor as an additional insured. The
liability limits of the above described insurance policies shall in no matter
limit the liability of Lessee pursuant to this Lease.
Not more frequently than every two (2) years, Lessor may, by notice to
Lessee, required an increase in the above-described limits of coverage if, in
the reasonable opinion of Lessor, the amount of liability insurance specified in
this Section 18, is not adequate to maintain the level of insurance protection
at least equal to the protection afforded on the date the term of this Lease
commences. If Lessee fails to maintain and secure the insurance coverage
required under this Section 18, then Lessor shall have, in addition to all other
remedies provided herein and by law, the right, butnot the obligation, to
produce and maintain such insurance, the cost of which shall be due and payable
to Lessor by Lessee within ten (10) business days after written demand.
If, on account of the failure of Lessee to comply with the provisions
of this Section, Lessor is deemed a co-insurer by its insurance carrier, then
any loss or damage which Lessor shall sustain by reason thereof shall be borne
by Lessee and shall be paid by Lessee as additional rent within ten (10 business
days after receipt of a xxxx therefore and evidence of such loss.
19. Taxes. The Lessee shall be responsible for paying all taxes and
assessments, both on the real property and the improvements, fixtures and
equipment and any and all personal property on the premises. Said taxes shall be
paidin advance, at a rate based on the prior year's taxes at the rate of 1/10 of
said taxes per month for the first ten (10) months of each calendar year and on
the same date as the Rent is due. When the notice of the actual taxes assessed
for the year have been received by the Lessor, there shall be an adjustment to
reflect the actual taxes. Any additional taxes shall be paid along with Rent to
Lessor and Lessor shall be responsible for forwarding them to the appropriate
taxing authority. For the year 1997, Lessee shall pay a prorated portion (based
on the date of the Lease to December 31, 1997) of 1997 taxes on the date of
execution of the Lease.
20. Right of Entry. The Lessor or his agents shall have the right when
accompanied by Lessee or its agents, to enter the leased property at reasonable
tiems in order to examine and inspect it, and to show it to prospective
purchasers or to make such repairs, alternations, improvements, or additions as
the Lessor may deem necessary or desirable. During the six (6) months prior to
the expiration of the term of this lease, and any extension thereof the Lessor
shall have theright to advertise the subject premises for sale or rent and shall
have right to place "For Sale" or "For Rent" signs on the leased property. If
the Lessee shall not be personally present to open and permit an entry into the
leased property at any time when, for any reason, and entry therein shall be
necessary, the Lessor or his agents may enter the leased property without
rendering the Lessor or such agents liable therefore (if, during such entry, the
Lessor or his agents shall accord reasonable care to the Lessee's property), and
without in any manner effecting the obligations and covenants of this Lease. The
Lessor's right of entry shall not be deemd to impose upon the Lessor any
obligation, responsibility, or liability for the care, supervision or repair of
the leased property other than as herein provided.
21. Indemnity.
a. Lessee Indemnity. Lessee agrees to indemnify, defend and hold
Lessor and its officers, directors, partners and employees entirely
harmless from and against all liabilities, losses, demands, actions,
expenses or claims, including reasonable attorneys' fees and court
costs, for injury to or death of any person or for damages to any
property or for violation of law arising out of or in any manner
connected with (i) the use, occupancy or enjoyment of the premises,
building or project by Lessee or Lessee's agents, employees, or
9
contractors (the "Lessee's Agents") or any work, activity or other
things allowed or suffered by Lessee or Lessee's Agents to be done in
or about the premises, building or project; (ii) any breach or default
in the performance of any obligation of Lessee under this Lease; and
(iii) any act or failure to act, whether negligent or otherwise
tortuous, by Lessee or Lessee's Agents in or about the premises,
building or project.
b. Limitation on Lessor's Liability; Release of Trustees, Officers
and Partners of Lessor. Lessee agrees that in the event Lessee shall
have any claim against Lessor under this Lease arising out of the
subject matter of this Lease, Lessee's sole recourse shall be against
the Lessor's interest in the leased property, for the satisfaction of
any claim, judgment or decree requiring the payment of money by Lessor
as a result of a breach hereof or otherwise in connection with this
Lease, and no other property or assets of Lessor, its successors or
assigns, shall be subject to the levy, execution or other enforcement
procedure for the satisfaction of any such claim, judgment, injunction
or decree. Moreover, Lessee agrees that Lessor shall in no event and
under no circumstances be responsible for any consequential damages
incurred or sustained by Lessee, or its employees, agents, contractors
or invitees as a result of or in any way connected to Lessee's
occupancy of the premises. Lessee further hereby waives any and all
right to assert any claim against or obtain any damages from, for any
reason whatsoever, the trustees, directors, officers and partners of
Lessor including all injuries, damages or losses to Lessee's property,
real and personal, whether known, unknown, foreseen, unforeseen, patent
or latent, which Lessee may have against Lessor or its directors,
officers or partners. Lessee understands and acknowledges the
significance and consequence of such specific waiver.
Lessor shall not be liable or responsible to Lessee for any loss or
damage to any property or person occasioned by theft, fire, act of God, public
enemy, injunction, riot, strike, insurrection, war, court order, requisition, or
order of governmental body or authority, or for any damage or inconvenience that
may arise through repair or alternation of any part of the project, the building
or the premises, or a failure to make any such repairs, except as expressly
provided in this Lease.
22. Compliance With Applicable Laws. Lessee at his its expense shall
comply with all laws, orders, and regulations of federal, state and municipal
authorities, and with any direction of any public officer, pursuant to law,
which shall impose any duty upon the Lessor or the Lessee with respect to the
leased property. Lessee, at its sole expense, shall obtain all licenses or
permits which may be required for the conduct of its business within the terms
of this lease, or for the making of repairs, alterations, improvements or
additions.
23. Surrender of Premises.
a. At the expiration of the lease term, and any extensions
thereof, the Lessee shall surrender the leased property in good
condition, reasonable use and wear and tear excepted.
b. No act or thing done by the Lessor or his agents during the
term of this lease shall be deemed an acceptance or the surrender of
the leased property and no agreement to accept such surrender shall be
valid unless in writing signed by Lessor. No employee nor agent of the
Lessor shall have any power to accept the keys of the leased property
prior to the termination of this Lease, and the delivery of the keys to
Lessor or to any employee or agent of the Lessor shall no operate as a
termination of this Lease or a surrender of the lease property without
Lessor's express written consent.
24. Assignment, Sublease or License. Lessee shall not assign or
sublease the premises or any right or privilege connected therewith or allow any
other person except agents and employees of Lessee to occupy the premises or any
part thereof without Lessor's prior written approval which shall not be
unreasonably withheld. An unauthorized assignment, sublease or license to occupy
by Lessee shall be void and shall terminate the lease at the option of Lessor.
The interest of Lessee in this lease is not assignable by operation of law
without the written consent of Lessor.
10
25. Non-Liability of Lessor for Damages. Lessor shall not be liable for
liability or damage claims for injury to persons or property from any cause
relating to the occupancy of the premises by Lessee, including those arising out
of damages or losses occurring on sidewalks and other areas adjacent to the
premises during the term of this lease or any extension thereof. Lessee shall
indemnify Lessor from all liability, loss, or other damage claims or obligations
resulting from any injuries or losses of this nature.
26. Signs, Awnings, and Marquees Installed by Lessee. Lessee may
construct or place signs, awnings, marquees, or other structures on the exterior
of the premises only with the prior written consent of Lessor, said consent not
to be unreasonably withheld or delayed.
27. Alterations. Lessee shall obtain the written approval of Lessor
prior to making any alterations or modifications to the premises or to any
equipment thereon, said approval not be unreasonable withheld. All approved and
completed alterations or modifications shall become part of the premises and
title thereto shall vest in Lessor. All alterations or modifications undertaken
by Lessee shall be performed and completed in a workmanlike manner and at the
sole expense of Lessee.
28. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed properly served if mailed by certified or registered
mail, return receipt requested,
To Lessor at: Alcoh Development, Inc. and Xxxx X. Xxxxx
c/o Xxxx X. Xxxxx
000 Xxxxx 000 Xxxx
Xxxx Xxxx Xxxx, XX 00000
and to: Reelman Investments, L.C.
c/o Xxxxxxx X. Xxxxxxxxx
525 East 000 Xxxxx, 0xx Xxxxx
Xxxx Xxxx Xxxx, XX 00000
To Lessee at: BSD Medical, Inc.
0000 Xxxx 0000 Xxxxx
Xxxx Xxxx Xxxx, XX 00000
unless a substitution is made by like notice. A notice is deemed properly served
if mailed as set forth above whether or not the certified letter is claimed.
29. Waiver of Right. No failure on the part of either party to enforce
any covenant or provision herein contained, nor any waiver of any rights
hereunder by either party, unless so stated in writing, shall discharge or
invalidate such covenant or provision or effect the right of that party to
enforce the same or any other right in the event of any subsequent breach or
default.
30. Attorney's Fees. In the event of a breach or default by either
party, the non-defaulting party shall be entitled to recover all costs of
enforcing this agreement including reasonable attorney's fees, whether or not
litigation is instituted.
31. Liens. It is Lessee's duty to keep the premises free of liens.
Lessee shall keep all of the premises and every part thereof and all buildings
and other improvements at any time located thereon free and clear of any and all
mechanic's materialman's, and other liens for or arising out of or in connection
with work or labor done, services performed or materials or appliances used or
furnished for or in connection with any operations of Lesseee, any alteration,
improvement, or repairs or additions which Lessee may make or permit or cause to
11
be made, or any work or construction, by, for, or permitted by Lessee on or
about the premises, or any obligations of any kind incurred by Lessee. Lessee
shall at all times promptly and fully pay and discharge any and all claims on
which any such lien may or could be based, and to indemnify Lessor and all of
the premises and all buildings and improvements thereon against all such liens
and claims and suits or other proceedings pertaining thereto.
32. Lessor's Lien. Notwithstanding any other provision of the lease, no
furniture, trade fixtures, equipment or inventory of the Lessee located on the
premises shall be removed from the same unless obligations of the Lessee to the
Lessor hereunder are current, and the Lessee herby grants to the Lessor a lien
upon such furniture, trade fixtures, equipment and inventory to assure faithful
performances by the Lessee of the terms, conditions and covenants of this Lease.
It is understood that said lien will be subordinate to perfected bank security
agreements. It is further agreed that Lessee may sell inventory in the ordinary
course of business free of any lien.
33. Lessor's Remedies are Cumulative. The specified remedies to which
Lessor and Lessee may resort under the terms of this Lease are cumulative and
are not intended to be exclusive of any other remedies or means of redress to
which the Lessor or Lessee may be lawfully entitled in case of any breach or
threatened breach of any provision or provisions of this lease.
34. Declaration of Governing Laws. This Lease shall be governed by,
construed, and enforced in accordance with the laws of the State of Utah.
35. Grammatical Usage. In construing this Lease, feminine or neuter
pronouns shall be substituted for those masculine in form and vice versa, and
plural terms shall be substituted for singular and singular for plural in any
place in which the context so requires.
36. Declaration of Contractual Liability. If there is more than one
party Lessee, the covenants of the Lessee shall be the joint and several
obligations of each such party.
37. Lease Binding Upon Heirs, Executors, Administrators, Successors,
and Assigns of Lessor and Lessee. The covenants, terms, conditions, provisions,
and undertakings in this lease or in any renewals thereof, shall extend to and
be binding upon the heirs, executors, administrators, successors, and assigns of
the respective parties hereto, as if they were in every case named and
expressed, and shall be construed as covenants running with the land; and
whenever reference is made to either of the parties hereto, it shall be held to
include and apply also to the heirs, executors, administrators, successors, and
assigns of such party, as if in each and every case so expressed. Nothing
contained herein shall be deemed to authorize an assignment of this lease by
Lessee.
38. Entire Agreement. This Lease, together with any written agreements
which shall have been executed simultaneously herewith, contains the entire
agreement and understanding between the parties. There are no oral
understandings, terms or conditions, and neither party has relied upon any
representation, express or implied, not contained in this lease or the
simultaneous writings heretofore referred to. All prior understandings, terms,
or conditions are deemed merged in this lease.
This Lease may not be changed orally, but only by an agreement in
writing and signed by the party against whom enforcement of any waiver, change,
modification, or discharge is sought.
39. Serverability. If any provision of this Lease shall be declared
invalid or unenforceable, the remainder of the lease shall continue in full
force and effect.
40. Conveyance by Lessor. If during the term of this Lease the Lessor,
its successors or assigns shall convey its interest in the demised premises and
shall transfer the security deposit, then from and after the effective date of
the conveyance by the Lessor, the Lessor so conveying shall be released and
12
discharged from any and all obligations pursuant to this Lease except for those
which shall have already accrued. Nothing contained in this Lease shall prohibit
Lessor from the sale, mortgaging, hypothecation or leasing of the subject
property.
41. Financial Statements. Upon request by the Lessor, Lessee agrees to
produce and deliver to Lessor its written financial statements on a semi-annual
basis.
42. Hazardous Materials. Lessee covenants and agrees that it shall not
cause or permit any Hazardous Material (as defined below) to be brought upon,
kept, or used in or about the premises, building or project by Lessee, its
agents, employees, contractors or invitees. The foregoing covenant shall not
extend to substances typically found or used in general office applications so
long as (i) such substances and any equipment which generates such substances
are maintained only in such quantities as are reasonably necessary for Lessee's
operations in the premises, (ii) such substances are used strictly in accordance
with the manufacturers' instructions therefore, (iii) such substances are not
disposed of in or about the project in a manner which would constitute a release
or discharge thereof, and (iv) all such substances and any equipment which
generates such substances are removed from the project by Lessee upon the
expiration or earlier termination of this Lease. Any use, storage, generation,
disposal, release or discharge by Lessee of Hazardous Materials in or about the
project as is permitted pursuant to this paragraph 42. shall be carried out in
compliance with all applicable federal, state and local laws, ordinances, rules
and regulations. Moreover, no Hazardous Materials resulting from any operations
by Lessee shall be stored or maintained by Lessee in or about the project for
more than ninety (90) days prior to removal by Lessee. Lessee shall, annually
within thirty (30) days after Lessee's receipt of Lessor's written request
therefore, provide to Lessor a written list identifying any Hazardous Materials
then maintained by Lessee in the project, the use of each such Hazardous
Material and the approximate quantity of each such Hazardous Material so
maintained by Lessee, together with written certification by Lessee stating, in
substance, that neither Lessee nor person for whom Lessee is responsible has
released or discharged any Hazardous Materials in or about the project.
In the event that Lessee proposes to conduct any use or to operate any
equipment which will or may utilize or generate a Hazardous Material other than
as specified in the first paragraph of this section, Lessee shall first in
writing submit such use or equipment to Lessor for approval. No approval by
Lessor shall relieve Lessee of any obligation of Lessee pursuant to this
section, including the removal, clean-up and idemnification obligations imposed
upon Lessee by this subsection. Lessee shall, within five (5) days after receipt
thereof, furnish to Lessor copies of all notices or other communications
received by Lessee with respect to any actual or alleged release or discharge of
any Hazardous Material in or about the premises or the project and shall,
whether or not Lessee receives any such notice or communication, notify Lessor
in writing of any discharge or release of Hazardous Material by Lessee or anyone
for whom Lessee is responsible in or about the premises or the project. In the
event that Lessee is required to maintain any Hazardous Materials license or
permit in connection with any use conducted by Lessee or any equipment operated
by Lessee in the premises, copies of each such license or permit, each renewal
or revocation thereof and any communications relating to suspension, renewal or
revocation thereof shall be furnished to Lessor within five (5) days after
receipt thereof by Lessee. Compliance by Lessee with the two immediately
preceding sentences shall not relieve Lessee of any other obligation of Lessee
pursuant to this subsection.
Upon any violation of the foregoing covenants, Lessee shall be
obligated, at Lessee's sole cost, to clean-up and remove from the project all
Hazardous Materials introduced into the project by Lessee or any person or
entity for whom Lessee is responsible. Such clean-up and removal shall include
all testing and investigation required by any governmental authorities having
jurisdiction and preparation and implementation of any remedial action plan
required by any governmental authorities having jurisdiction. Lessor's right of
entry pursuant to Section 20. shall include the right to enter and inspect the
premises for violations of Lessee's covenants herein.
13
Lessee shall indemnify, defend and hold harmless Lessor, its partners,
and its and their successors, assigns, partners, officers, employees, agents,
lenders and attorneys from and against any and all claims, liabilities, losses,
actions, costs and expenses (including attorneys' fees and costs of defense)
incurred by such indemnified persons, or any of the, as the result of (A) the
introduction into or about the project by Lessee or anyone for whom Lessee is
responsible of any Hazardous Materials, (B) the usage, storage, maintenance,
generation, disposition or disposal by Lessee or anyone for whom Lessee is
responsible of Hazardous Materials in or about the project, (C) the discharge or
release in or about the project by Lessee or anyone for whom Lessee is
responsible of any Hazardous Materials, (D) any injury to or death of persons or
damage to or destruction of property resulting from the use, introduction,
maintenance, storage, generation, disposal, disposition, release or discharge by
Lessee or anyone for whom Lessee is responsible of Hazardous Materials in or
about the project, and (E) any failure of Lessee or anyone for whom Lessee is
responsible to observe the foregoing covenants of this subsection.
Upon any violation of the foregoing covenants, Lessor shall be entitled
to exercise all remedies available to a Lessor against a defaulting Lessee,
including but not limited to those set forth in Section 13. Without limiting the
generality of the foregoing, Lessee expressly agrees that upon any such
violation Lessor may, at its option, (i) terminate this Lease after 30 days
prior written notice, or (ii) continue this Lease in effect until compliance by
Lessee with its clean-up and removal covenant notwithstanding any earlier
expiration date of the term of this Lease. No action by Lessor hereunder shall
impair the obligations of Lessee pursuant to this subsection.
As used in this subsection, "Hazardous Materials" is used in its
broadest sense and shall include any petroleum based products, pesticides,
paints and solvents, polychlorinated biphenyl, lead, cyanide, DDT, acids
ammonium compounds and other chemical products and any substance or material
defined or designated as hazardous or toxic, or other similar term, by any
federal, state or local environmental statute, regulation, or ordinance
affecting the premises, building or project presently in effect or that may be
promulgated in the future, as such statutes, regulations and ordinances may be
amended from time to time, including but not limited to the statutes listed
below:
Resource Conservative and Recovery Act of 1976, 42
U.S.C.ss.6901 et. Seq
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, 00 X.X. X.xx.0000 et seq.
Clean Air Act, 42 U.S.C. ss. ss. 7401-7626
Water Pollution Control Act (Clean Water Act of 1977), 33
U.S.C.ss.1251 et seq.
Insecticide, Fungicide, and Rodenticide Act (Pesticide Act of
1987), 7 U.S.C.ss.135 et seq.
Toxic Substances Control Act, 15 U.S.C.ss.2601 et seq.
Safe Drinking Water Act, 42 U.S.C.ss.300(f) et seq.
National Environmental Policy Act (NEPA) 42 U.S.C.ss.4321 et
seq.
Refuse Act of 1899, 33 U.S.C.ss.407 et seq.
Lessee acknowledges that incorporation of any material containing
asbestos into the premises is absolutely prohibited. Lessee agrees, represents
and warrants that it shall not incorporate or permit to suffer to be
incorporated, knowingly or unknowingly, any material containing asbestos into
the premises.
14
43. Option to Purchase. Commencing on, and not before, the nineteenth
month after the commencement date of this Lease, Lessee shall have the option to
purchase the subject premises on the following terms and conditions. Lessee
shall have no option to purchase during the first 18 months of the Lease. The
following option to purchase the subject property may be exercised only in the
event that the Lease is in full force and effect on the date of exercise and
Lessee is in occupancy of the building, and Lessee is not in default (including
any applicable cure or grace period).
a. The option shall be exercised by giving written notice 60 days
prior to the date of closing of the sale. The sale of the property
cannot be closed during the first 18 months of this Lease.
b. If the option is exercised to be closed on the first day of the
19th month of this Lease, the option price shall be $775,000.00.
If the option is exercised to be closed on the first day of the
24th month of this Lease, the option price shall be $800,000.00.
If the option is exercised to be closed on the first day of the
36th month of this Lease, the option price shall be $850,000.00.
If the option is exercised to be closed on the first day of the
48th month of this Lease, the option price shall be $900,000.00.
If the option is exercised to be closed on the first day of the
60th month of this Lease, the option price shall be $950,000.00.
If the option is exercised with the sale of the premises to be
closed in between any of the dates set forth above (but not earlier
than the 19th month) the option price shall be a prorated price between
the amount stated for any dates in between. For example, if the closing
is to take place on the first day of the 42nd month, the price would be
$875,000.00.
c. The option shall be paid in cash. The option expires at the end
of the 60th month.
d. At the time of the exercise of the option, Lessor with provide
a standard owners policy of title insurance to Lessee. All other
closing costs shall be split equally between Lessor and Lessee.
Conveyance shall be by Special Warranty Deed and special warranty xxxx
of sale.
All of the other closing costs shall be split equally between
Lessor and Lessee. Lessee will take "as is" without any representations
or warranties from the Seller.
e. The sale shall be without warranty of any sort except for the
warranties of title in the deed and xxxx of sale. Lessee to accept the
premises "As Is".
44. Broker's Commissions. Lessor and Lessee represent and warrant to
each other that there are no claims for brokerage commissions or finder's fees
in connection with this Lease and the option to purchase and each agrees to
indemnify the other for, from and against all liabilities arising from any
claims, including any attorneys' fees connected therewith, relating to claims
arising out of the other's actions.
45. Covenant of Quiet Enjoyment. Lessor covenants that so long as
Lessee shall perform the obligations of Lessee contained in this Lease and shall
not be in default in the performance of any such obligations, including any
applicable cure or grace period, Lessor shall take no act or fail to take any
action that would deny Lessee and its permitted subtenants, licensees,
successors and assigns the right to freely,peaceably, and quietly have, hold and
enjoy full and exclusive use and enjoyment of the premises.
15
46. No Recording. This Lease shall not be recorded. However, Lessee may
record a Notice of Optoin in the form attached hereto as Exhibit "A". At the
time of the execution of this Lease, Lessee shall execute a Release of Notice of
Option in the form attached hereto as Exhibit (B". Said Release of Notice of
Option shall be delivered to Lessor at the time of execution of the Lease and
may be recorded by Lessor at such time as either the Lease terminates or the
option contained in this Lease terminates.
DATED this 5th day of December, 1997.
LESSOR: LESSEE:
Alcoh Development, Inc., BSD Medical, Inc.
a Utah corporation
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxx X. Xxxxxx
Its: President Its. Acting President
/s/ Xxxx X. Xxxxx
Reelman Investments, L.C.
a Utah limited liability company
By: /s/ Xxxx Xxxxxxxxx
Its: Manager
16
NOTICE OF OPTION
BSD Medical, Inc. and Alcoh Develoment, Inc., a Utah corporation, Xxxx
X. Xxxxx Xxxxxx X. Xxxxx and Reelman Investments, L.C., a Utah limited liability
company, hereby give notice that BSD Medical, Inc. has an optiont o purchase
(the "Option") the real property together with improvements thereon as described
upon Exhibit "A" attached hereto. The Option terminates on December 1, 2002
unless there is a breach of the lease or the Option, in which case the Option
may terminate earlier pursuant to the terms of the lease.
DATE this 5th day of December, 1997.
BSD MEDICAL, INC.
By: /s/ Xxxx X. Xxxxxx
Its: Acting President
ALCOH DEVELOPMENT, INC.,
a Utah corporation
By: /s/ Xxxxxx X. Xxxxx
Its: President
/s/ Xxxx X. Xxxxx
REELMAN INVESTMENTS, L.C.,
a Utah limited liability company
By: /s/ Xxxx Xxxxxxxxx
Its: Manager
STATE OF UTAH )
: ss.
COUNTY OF SALT LAKE )
On the 5 day of December, 1997, personally appeared before me /s/ Xxxx
X. Xxxxxx , who being by me duly sworn did say that he is the President of BSD
Medical, Inc., a corporation, and that said instrument was signed in behalf of
said corporation by authority of its by-laws (or by a resolution of its board of
directors) and said /s/ Xxxx X. Xxxxxx acknowledged to me that said corporation
executed the same.
/s/ Xxxxxx X. Xxxxxx
NOTARY PUBLIC
Residing at : SLC Ut
My Commission Expires: 1/20/01
17
STATE OF UTAH )
: ss.
COUNTY OF SALT LAKE )
On the 5 day of December, 1997, personally appeared before me /s/ Xxxx
X. Xxxxx , who being by me duly sworn did say that he is the President of Alcoh
Development, Inc., a Utah corporation, and that said instrument was signed in
behalf of said corporation by authority of its by-laws (or by a resolution of
its board of directors) and said /s/ Xxxx X. Xxxxx acknowledged to me that said
corporation executed the same.
/s/ Xxxxxx X. Xxxxxx
NOTARY PUBLIC
Residing at : SLC Ut
My Commission Expires: 1/20/01
STATE OF UTAH )
: ss.
COUNTY OF SALT LAKE )
Subscribed and sworn to before me this 5 day of December, 1997, by Xxxx
X. Xxxxx and Xxxxxx X. Xxxxx, the signers of the foregoing instrument.
/s/ Xxxxxx X. Xxxxxx
NOTARY PUBLIC
Residing at : SLC Ut
My Commission Expires: 1/20/01
STATE OF UTAH )
: ss.
COUNTY OF SALT LAKE )
On the 5 day of December, 1997, personally appeared before me /s/
Xxxxxxx Xxxxxxxxx , who being by me duly sworn did say that he is the Manager of
Reelman Investments, L.C., a Utah limited liability company, and that said
instrument was signed in behalf of said limited liability corporation by its
authority and said /s/ Xxxxxxx Xxxxxxxxx acknowledged to me that said
corporation executed the same.
/s/ Xxxxxx X. Xxxxxx
NOTARY PUBLIC
Residing at : SLC Ut
My Commission Expires: 1/20/01
18
Exhibit "A"
Beginning at a point which is North 0 deg. 02'35" East along the
quarter section line 1743.0 feet and West 2556.50 feet from the center of
Section 22, Township 1 South, Range 1 West, Salt Lake Base and Meridian; thence
North 189.48 feet to a point on the 0000 Xxxxx Xxxxxxx right of way line, said
point also being a point on a 1146.23 foot radius curve, the center of which
bears South 28 deg. 29'53" East; thence Northeasterly along said right of way
line and said curve to the right, a distance of 242.73 feet through a central
angle of 12 deg. 08'00"; thence South 0 deg. 01'42" East 186.21 feet; thence
South 5 deg. 58'29" East 70.71 feet; thence South 15 deg. 53'01" East 26.41
feet; thence West 238.63 feet to the point of beginning.
19
ALCOH DEVELOPMENT, INC.
a Utah corporation
By: /s/ Xxxxxx X. Xxxxx
Its: President
/s/ Xxxx X. Xxxxx
STATE OF UTAH )
: ss.
COUNTY OF SALT LAKE )
On the 5 day of December, 1997, personally appeared before me /s/ Xxxx
X. Xxxxxx , who being by me duly sworn did say that he is the President of BSD
Medical, Inc., a corporation, and that said instrument was signed in behalf of
said corporation by authority of its by-laws (or by a resolution of its board of
directors) and said /s/ Xxxx X. Xxxxxx acknowledged to me that said corporation
executed the same.
/s/ Xxxxxx X. Xxxxxx
NOTARY PUBLIC
Residing at : SLC Ut
My Commission Expires: 1/20/01
STATE OF UTAH )
: ss.
COUNTY OF SALT LAKE )
On the 5 day of December, 1997, personally appeared before me /s/
Xxxxxxx Xxxxxxxxx , who being by me duly sworn did say that he is the Manager of
Reelman Investments, L.C., a Utah limited liability company, and that said
instrument was signed in behalf of said limited liability company by its
authority and said /s/ Xxxxxxx Xxxxxxxxx acknowledged to me that said limited
liability executed the same.
/s/ Xxxxxx X. Xxxxxx
NOTARY PUBLIC
Residing at : SLC Ut
My Commission Expires: 1/20/01
20
EXHIBIT "A"
Beginning at a point which is North 0 deg. 02'35" East along the
quarter section line 1743.0 feet and West 2556.50 feet from the center of
Section 22, Township 1 South, Range 1 West, Salt Lake Base and Meridian; thence
North 189.48 feet to a point on the 0000 Xxxxx Xxxxxxx right of way line, said
point also being a point on a 1146.23 foot radius curve, the center of which
bears South 28 deg. 29'53" East; thence Northeasterly along said right of way
line and said curve to the right, a distance of 242.73 feet through a central
angle of 12 deg. 08'00"; thence South 0 deg. 01'42" East 186.21 feet; thence
South 5 deg. 58'29" East 70.71 feet; thence South 15 deg. 53'01" East 26.41
feet; thence West 238.63 feet to the point of beginning.
21
RELEASE OF OPTION
THIS RELEASE OF OPTION is dated this 5th day of December, 1997, by and
between BSD Medical, Inc., and Alcoh Development, Inc., a Utah corporation, Xxxx
X. Xxxxx and Xxxxxx X. Xxxxx and Reelman Investments, L.C., a Utah limited
liability company, who are the parties to that certain Lease Agreement between
them dated December 5th, 1997 ("the Lease"). This release shall be effective as
of the date of termination of the Lease or the Option to Purchase set forth
therein (the "Option").
RECITALS
WHEREAS, the parties hereto have previously executed and anticipated
recording a Notice of Option; and
WHEREAS, the Lease Agreement provides that the Option shall be released
upon termination or default of the Lease and/or the Option; and
WHEREAS, upon the termination of the Lease or Option, this Release of
Notice of Option may be recorded;
NOW, THEREFORE, NOTICE IS HEREBY GIVEN, AND IT IS HEREBY AGREED:
1. The Recitals set forth above are hereby incorporated by reference.
2. The recording of this Release of Notice of Option shall be
conclusive proof that there has been a termination of the Lease or a breach or
termination of the Option and that BSD Medical has no right, title or interest
in and to the real property described on Exhibit "A".
DATED as of the day and year first written above.
BSD MEDICAL, INC.
By: /s/ Xxxx X. Xxxxxx
Its: /s/ Acting President
REELMAN INVESTMENTS, L.C.,
a Utah limited liability company
By: /s/ Xxxx Xxxxxxxxx
Its: /s/ Manager
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