COMMERCIAL OFFICE LEASE
TRI XXX, X. X.
and
PARADIGM MEDICAL INDUSTRIES, INC.
LEASE, between TRI-XXX, X.X. a Utah limited liability
company, with its principal office at 1818 West 2300 South, West
Valley City, Utah, as "Landlord" and PARADIGM MEDICAL INDUSTRIES,
INC, a Delaware Corporation, with its principal office at 0000
Xxxx 0000 Xxxxx, Xxxx Xxxxxx Xxxx, Xxxx as "Tenant."
1. DEFINITIONS - Each of the following terms shall have the
indicated meaning:
"Base Rent" means Two Thousand Nine Hundred Seventy
One Dollars Eighty Seven Cents ($2,971.87) per calendar month,
subject to adjustment pursuant to Paragraph 3.
"Buildings" means the office buildings located at
0000 Xxxx 0000 Xxxxx and 1780 West 2300 South in the City of West
Valley, County of Salt Lake, State of Utah City, Utah.
"Commencement Date" means January 1, 1997.
"Development" means that certain real property known
as 0000 Xxxx 0000 Xxxxx and 0000 Xxxx 0000 Xxxxx, Xxxx Xxxxxx
Xxxx, Xxxx.
"Expiration Date" means the date which is twelve
months after the Commencement Date, plus any partial calendar
month occurring between the Commencement Date and the first day
of the first full calendar month following the Commencement Date,
if the Commencement Date does not occur on the first day of a
calendar month.
"Permitted Use" means office and component assembly
only, and no other purpose.
"Premises" means 1772 West 2300 South, 1774 West 2300
South, 1776 West 2300 South, and 0000 Xxxx 0000 Xxxxx, Xxxx
Xxxxxx Xxxx, Xxxx, consisting of approximately 5,442 net rentable
square feet, shown on the attached Exhibit A, located in the
Buildings. The Premises does not include the foundation, roof
and structural portions of the Buildings. Tenant warrants that
it has measured the Premises and agrees that any payment based on
the square feet of the Premises will be calculated using 5,442
square feet throughout the Term.
"Tenant's Parking Allocation" means seventeen (17)
parking stalls at 1770-1776 West 2300 South, and six (6) parking
stalls at 0000 Xxxx 0000 Xxxxx xxxxx xx the attached Exhibit B.
"Term" means the period commencing on the
Commencement Date and expiring on the Expiration Date, unless
this Lease is terminated earlier pursuant to the provisions of
this Lease.
2. AGREEMENT OF LEASE - Landlord leases the Premises to
Tenant and Tenant leases the Premises from Landlord for the Term,
together with such rights of pedestrian and vehicular ingress and
egress on, over and across the Common Areas as are reasonably
necessary for the use of the Premises, in accordance with the
provisions set forth in this Lease. In addition, Tenant shall
have the use of a number of parking stalls designated by Landlord
for Tenant's exclusive use equal to Tenant's Parking Allocation.
3. RENT - Tenant shall pay the minimum total rental of Thirty
Five Thousand Six Hundred Sixty Two Dollars Forty Four Cents
($35,662.44) and any additional rent assessed pursuant to the
terms of this Lease ("Additional Rent"). Such minimum total rent
and any Additional Rent shall be paid in monthly installments as
set forth below, which installments shall be paid in advance on
the first day of each and every month during the Term.
(A) Tenant covenants to pay to Landlord the Base Rent
and any Additional Rent at the address for Landlord set forth at
the outset of this Lease or at such other place as Landlord may
designate, in advance on or before the first day of each calendar
month during the Term, commencing on the Commencement Date. If
the Commencement Date is not the first day of a calendar month,
on or before the Commencement Date, the Base Rent shall be paid
for the initial fractional calendar month (prorated on a per diem
basis) and for the first full calendar month following the
Commencement Date. If this Lease expires or terminates on a day
other than the last day of a calendar month, the Base Rent for
such fractional month shall be prorated on a per diem basis.
(B) The Base Rent will be adjusted each January to the
proportionate increase in the Consumer Price Index for All Urban
Consumers, US City Average, All Items for the previous twelve
months. The revised Base Rent will be in effect for January's
lease payment. The first lease payment adjustment will begin
January 1998. In no event will an adjustment to the Base Rent
pursuant to this paragraph result in a Base Rent amount less than
$2,971.87.
(C) Each Base Rent payment shall be increased by the sum
of Ten Dollars ($10.00) for each day that the Base Rent payment
is later than the tenth (10th) day after which payment is due.
4. SECURITY - Tenant has deposited with Landlord $2,971.87 as
security for the faithful performance by Tenant of all the terms,
covenants and conditions of this Lease on Tenant's part to be
performed. Provided Tenant has fully and faithfully carried out
all of said terms, covenants and conditions on Tenant's part to
be performed, this security deposit shall be returned to Tenant
after the expiration of this Lease without interest.
(A) In the event of a bona fide sale, subject to this
Lease, Landlord shall have the right to transfer the security to
the buyer for the benefit of Tenant. Landlord, upon notice to
Tenant of such sale and assignment of the security deposit to the
buyer, shall be released from all liability for the return of
such security. Tenant agrees to look solely to the new Landlord
for the return of the said security, and it is agreed that this
shall apply to subsequent transfer or assignment of the security
to any new Landlord.
(B) The security deposited under this Lease shall not be
mortgaged, assigned or encumbered by the Tenant without the
written consent of the Landlord.
5. CARE OF PREMISES, ALTERATIONS, ETC. - Tenant shall take
good care of the Premises and any fixtures which are the property
of the Landlord which may be located or situated on, in or made
a part of the Premises and shall, at Tenant's own cost and
expense make all repairs to the Premises and fixtures other than
structural repairs. At the end of the Term, Tenant shall deliver
the Premises and any fixtures belonging to Landlord located,
situated on, or made a part of the Premises in good order and
condition, damages by the elements excepted.
(A) Tenant shall use the Premises for the Permitted Use
and no other. Tenant shall promptly execute and comply with all
statutes, ordinances, rules, restrictive covenants, orders,
regulations and requirements of any governmental or
quasi-governmental authority, including departments, bureaus and
the like, having jurisdiction applicable to the Premises, for the
correction, prevention, and abatement of violations, nuisances or
other grievances, in, upon, or connected with the Premises during
the Term, at the Tenant's sole cost and expense. Tenant shall
provide Landlord at Landlord's request evidence of compliance
with all legal obligations and inspection of any permits,
licenses, or other requirements of law.
(B) Tenant's, Tenant's successors, heirs, executors or
administrators shall not make any alterations to the Premises
without the Landlord's consent in writing, or occupy, or permit
or suffer the same to be occupied for any business or purpose
deemed disreputable or extra-hazardous on account of fire, under
the penalty of damages and forfeiture, and in the event of a
breach thereof, the Lease shall immediately cease and terminate,
at the option of the Landlord, as if it were the expiration of
the original Term.
(C) Tenant will not do anything in or to the Premises,
or bring anything into the Premises, or permit anything to be
done or brought into or kept in the Premises, which will in any
way increase the rate of fire insurance on said Premises, nor use
the Premises or any part thereof, nor allow or permit its use for
any business or purpose which would cause an increase in the rate
of fire insurance on said Buildings. Tenant agrees to pay as
Additional Rent the cost of any increase in fire insurance
resulting from Tenant's use of the Premises on demand by
Landlord.
(D) Tenant shall not use, produce, store, release,
dispose or handle in or about the Premises or transfer to or from
the Premises (or permit any other party to do such acts,
including, without limitation, Tenant's independent contractors)
any Hazardous Substance except in compliance with all applicable
Environmental Laws. Tenant shall not construct or use any
improvement, fixtures or equipment or engage in any act on or
about the Premises that would require the procurement of any
license or permit pursuant to any environmental law. Tenant shall
immediately notify Landlord of (i) the existence of any Hazardous
Substance on or about the Premises that may be in Violation of
any Environmental Law (regardless of whether Tenant is
responsible for the existence of such Hazardous Substance), (ii)
any proceeding or investigation by any governmental authority
regarding the presence of any Hazardous Substance on the Premises
or the migration thereof to or from any other property, (iii) all
claims made or threatened by any third party against Tenant
relating to any loss or injury resulting from any Hazardous
Substance, or (iv) Tenant's notification of the national Response
Center of any release of a reportable quantity of a Hazardous
Substance in or about the Premises. "Environmental Laws" shall
mean any federal, state of local statute, ordinance, rule,
regulation or guideline pertaining to health, industrial hygiene,
or the environment, including without limitation, the federal
Comprehensive Environmental Response, Compensation, and Liability
Act; "Hazardous Substance" shall mean all substances, materials
and wastes that are or become regulated, or classified as
hazardous or toxic, under any Environment Law.
If it is determined that any Hazardous Substance exists on
or about the Premises resulting from any act of Tenant or its
employees, agents, contractors, independent contractors,
licensees, subtenants or customers, Tenant shall, at Tenant's
sole cost and expense, immediately take necessary action to cause
the removal of said substance and shall remove such within ten
(10) days after discovery. Notwithstanding the above, if the
Hazardous Substance is of a nature that can not be reasonably
removed within ten (10) days Tenant shall not be in default if
Tenant has commenced to cause such removal and proceeds
diligently thereafter to complete removal, except that in all
cases, any Hazardous Substance must be removed within sixty (60)
days after discovery thereof. Furthermore, notwithstanding the
above, if in the good faith judgment of Landlord, the existence
of such Hazardous Substance creates an emergency or is of a
nature which may result in immediate physical danger to persons
at the Premises or the environment, Landlord may enter upon the
Premises and remove such Hazardous Substances and charge the cost
thereof to Tenant as Additional Rent owing hereunder.
(E) Tenant shall not encumber or obstruct the sidewalk
in front of, entrance to, or halls and stairs of said Premises,
nor allow the same to be obstructed or encumbered in any manner.
(F) Tenant will not under any circumstances allow Common
Areas or Tenant's Parking Allocation to collect debris, garbage,
refuse, or any other object or substance used in association with
Tenant's business or discarded by Tenant's employees, agents,
contractors, independent contractors, licensees, subtenants or
customers (collectively "Tenant Debris"). If Tenant fails to
keep the Common Areas or Tenants' Parking Allocation free of
Tenant Debris, as determined by Landlord in its sole discretion,
Landlord may cause such Tenant Debris to be removed and charge
the cost of such removal to Tenant as Additional Rent hereunder.
(G) Tenant is responsible for snow removal from porches
and walkways in front of the Premises to the parking area and
assumes all liability with regard to the clearing of moisture
accumulation on said walkways.
(H) In no event shall Landlord be liable to Tenant, its
employees, agents, customers, contractors, independent
contractors, or invitees for any damage or injury to person or
property caused by or resulting from steam, electricity, gas,
water, rain, ice or snow, or any leak or flow from or into any
part of the Premises or said Buildings or from any damage or
injury caused by or due to the negligence of the Landlord.
(I) Tenant will not under any circumstances allow
Tenant's employees, agents, contractors, independent contractors,
licensees, subtenants or customers to bring animals onto the
Premises. If animals are allowed on the Premises, Landlord may
charge the cost of restoring any damage caused by the animals to
Tenant as Additional Rent hereunder.
(J) The respective obligations (if any) of Landlord and
Tenant to prepare the Premises for occupancy are described on the
attached Exhibit C. Landlord and Tenant (as applicable) shall
perform such work diligently, in a first-class and workmanlike
manner and in compliance with all applicable laws, ordinances,
rules and regulations. With respect to any work performed by
Landlord, Landlord and Tenant shall, at a mutually convenient
time, conduct a walk-through of the Premises prior to or within
fifteen (15) days after the Commencement Date, and prepare a list
of items to be promptly completed by Landlord.
6. COMMON AREAS - Areas within the outer property lines of the
Development as delineated on the plat attached hereto marked
Exhibit B, exclusive of areas therein specified or as built for
leasing to Tenants shall be known as Common Areas, as shall all
other areas from time to time designated by Landlord for use as
part of the Development. Landlord shall have the right, at its
sole cost and expense, to improve any portions of said Common
Areas by installing and constructing thereon parking lots,
pedestrian walkways, sidewalks, exterior canopies, delivery and
landscaped areas and lighting facilities, and other desired
improvements to the extent to which the Landlord shall determine
to be necessary. Common Areas shall be available for the common
use of all Landlord's tenants in the Development, their
employees, customers, and invitees. Notwithstanding anything
elsewhere herein contained, Landlord reserves the right from time
to time to make reasonable changes in, additions to and deletions
from the Common Areas and the purposes to which the same may be
devoted, and the use of Common Areas shall at all times be
subject to such reasonable rules and regulations as may be
promulgated by the Landlord. Landlord may, at Tenants expense,
clean Common Areas or Tenant's Parking Allocation of any object
or substance that Tenant or Tenant's employees, customers,
contractors, independent contractors, and invitees allow to
remain in Common Areas or Tenant's Parking Allocation and charge
the cost of such cleaning to Tenant as Additional Rent hereunder.
7. SERVICES PROVIDED BY LANDLORD - As long as Tenant is not in
default of any of the terms and conditions of this Lease,
Landlord agrees to provide the following services:
(A) Water for ordinary lavatory purposes. If, in the
sole determination of Landlord, Tenant shall use or consume water
for any purpose other than ordinary lavatory purposes or in
unusual quantities, Tenant shall pay to Landlord as Additional
Rent any charge or fee assessed or imposed upon Landlord by
reason of such use, whether determined by meter or otherwise, as
soon as the same is assessed or imposed. Should Landlord
determine that Tenant's water usage should be separately metered,
Tenant shall pay any expense incurred by Landlord in connection
with the installation, setting and maintenance of such meter in
the Premises. Water and sewer fees are included in the Common
Area Maintenance fee paid by Tenant. In the event that water and
sewer charges due and owing by Landlord for the Buildings shall
be increased above those charges during the base year (which is
defined as the fiscal year used by the governmental authority
assessing such fees in effect on the Commencement Date of this
Lease), Tenant agrees to pay as Additional Rent within thirty
(30) days of receipt of notice from Landlord, Tenant's pro rata
share of additional water and sewer charges.
(B) Common Area Maintenance - Landlord will maintain or
cause to be maintained the Common Areas, and Tenant shall
reimburse Landlord for Tenant's pro rata share of the cost of
such maintenance as hereinafter provided. Common Area maintenance
costs and expenses shall include, but shall not be limited to,
landscaping, parking area snow removal, upkeep, repairs,
replacements and improvements in the Common Areas, exterior
painting, sweeping and cleanup, depreciation allowance on any
machinery and equipment owned by Landlord and used in connection
therewith, payroll and payroll costs, utility services, fire
sprinkler installation costs (amortized over 15 years), premiums
for public liability, property damage and fire insurance which
shall insure Landlord in the Common Areas, and any real estate
tax consultant expense incurred for the purpose of maintaining
equitable tax assessments on the Development. All property taxes
or assessments levied or assessed against the Common Areas that
are not separately assessed, shall be determined as follows: (i)
for land, by the ratio of land area designated for the Common
Area use to the total land area in the Development; and (ii) for
improvements, on a fair and equitable allocation among the
various improvements in the Development, giving weight to the
factors that determine the amount of the real property tax or
assessment in question. Common Area maintenance costs and
expenses shall also include administrative costs equal to ten
percent (10%) of the total cost paid or incurred by the Landlord
under this paragraph.
(C) For the space at 1774 West 2300 South and 0000 Xxxx
0000 Xxxxx:
(1) Electricity for lighting, air conditioning,
heating, and office equipment.
(2) Natural Gas for heating.
(D) Landlord is not obligated to provide any other
services as part of this Agreement. Tenant is responsible for the
following services: Electrical, natural gas, telephone, air
conditioning, heating, cooling, ventilation, snow removal on
porches and walkways in front of the Premises, and any and all
other services the Tenant may require, excepting those services
provided in subsection (C) above.
In the event any utility service to the Premises is interrupted
or temporarily discontinued for any reason whatsoever, Landlord
shall not be liable therefore to Tenant and the rent required to
be paid hereunder shall not be abated as a result thereof. Tenant
waives any claims it might otherwise have against Landlord as a
result of any such interruption or discontinuation.
8. COMMON AREA MAINTENANCE FEE - Tenant shall pay as
Additional Rent to Landlord, Tenant's pro rata share of such
Common Area expenses in the following manner:
(A) Tenant shall pay Landlord in advance on the first
day of each calendar month during the Term an amount equal to the
total square feet of the Premises multiplied by 0.065. The
foregoing rate per square foot may be adjusted by Landlord by
notice to Tenant at the end of any calendar month on the basis of
Landlord's experience and reasonably anticipated costs.
(B) Within thirty (30) days following the end of each
calendar year, Landlord shall furnish Tenant a statement covering
the calendar year just expired, showing the total operating
costs, the amount of Tenant's pro rata share of such Common Area
expenses for such calendar year and the payments made by Tenant
with respect to such calendar year. Tenant's pro rata share of
the total Common Area expenses for the previous calendar year
shall be that portion of all such expenses which is equal to the
proportion which the number of square feet of the Premises bears
to the total number of square feet of gross leasable area of
buildings in the entire Development which are from time to time
completed and occupied as of the commencement of each calendar
year. If Tenant's pro rata share of such Common Area expenses
exceeds Tenant's payments made pursuant to subparagraph (A)
above, Tenant shall pay Landlord the deficiency within ten (10)
days after receipt of such statement. If the payments exceed
Tenant's pro rata share of such Common Area expenses, Tenant
shall be entitled to offset the excess against Common Area
expense payments to become due Landlord.
9. REAL ESTATE TAXES - Tenant acknowledges that the Premises
comprise approximately 14% of the Building at 1772 West 2300
South, and 13% of the Building at 1780 West 2300 South, which
shall be defined as "Tenant's Share." Real estate taxes are
included in the Common Area Maintenance fee paid by Tenant. In
the event that real estate taxes due and owing by Landlord for
the Buildings and property shall be increased above those charges
during the base year (which is defined as the tax or fiscal year
used by the governmental authority assessing such taxes in effect
on the Commencement Date), Tenant agrees to pay as Additional
Rent within thirty (30) days of receipt of notice from Landlord,
an amount equal to Tenant's Share of such additional real estate
taxes.
10. NO ABATEMENT OF RENT OR ADDITIONAL RENT - Landlord shall
not be liable for failure to give possession of the Premises upon
the Commencement Date by reason of the fact that the Premises are
not ready for occupancy or because a prior tenant or any other
person is wrongfully holding over or is in wrongful possession,
or for any other reason, and the Term shall not be extended by
reason of such delay.
(A) This Lease and the obligation of Tenant to pay rent
hereunder and perform all of the other covenants and agreements
hereunder on part of Tenant to be performed shall in no way be
affected, impaired or excused because Landlord is unable to
supply or is delayed in supplying any service expressly or
impliedly to be supplied or is unable to make, or is delayed in
making any repairs, additions, alterations or decorations or is
unable to supply or is delayed in supplying any equipment or
fixtures if Landlord is prevented or delayed from so doing by
reasons of government preemption in connection with a National
Emergency or in connection with any rule, order or regulation of
any department or subdivision thereof of any governmental agency
or by reason of the conditions of supply and demand which have
been or are affected by war or other emergency.
(B) No diminution or abatement of rent, or other
compensation, shall be claimed or allowed for inconvenience or
discomfort arising from the making of repairs or improvements to
the Buildings or to its appliances, nor for any space taken to
comply with any law, ordinance or order of a government
authority. In respect to the various "services" if any, herein
expressly or impliedly agreed to be furnished by Landlord to
Tenant, it is agreed that there shall be no diminution or
abatement of the rent, or any other compensation, for
interruption or curtailment of such "service" when such
interruption or curtailment shall be due to accident, alteration
or repairs desirable or necessary to be made or to Landlord's
inability or difficulty in securing supplies or labor for the
maintenance of such "service" or to some other cause, nor gross
negligence on the part of Landlord. No such interruption or
curtailment of any such "service" shall be deemed a constructive
eviction. Landlord shall not be required to furnish, and Tenant
shall not be entitled to receive any "services" during any period
when Tenant shall be in default in respect to the payment of
rent. Neither shall there be any abatement or diminution of rent
because of making of repairs, improvements or decorations to the
Premises after the Commencement Date, it being understood that
rent shall, in any event, commence as of the Commencement Date.
11. DAMAGE TO THE PREMISES - Tenant must give Landlord prompt
notice of fire, accident, casualty, damage or dangerous or
defective condition. If the Premises can not be used because of
fire or other casualty, Tenant is not required to pay rent for
the time the Premises are unusable. If part of the Premises can
not be used, Tenant must pay rent for the usable part. Landlord
shall have the right to decide which part of the Premises is
usable. Landlord need only repair the damaged structural parts of
the Premises. Landlord is not required to repair or replace any
equipment, fixtures, furnishings or decorations unless originally
installed by Landlord. Landlord is not responsible for delays due
to settling insurance claims, obtaining estimates, labor and
supply problems or any other cause not fully under Landlord's
control.
(A) If the fire or other casualty is caused by an act or
neglect of Tenant, Tenant's employees or persons on the Premises
with permission of Tenant, or at the time of the fire or casualty
Tenant is in default in any term of this Lease, then all repairs
will be made at Tenant's expense and Tenant must pay the full
rent with no adjustment. The cost of any such repairs performed
by Landlord will charged to Tenant as additional rent hereunder.
(B) Landlord has the right to demolish or rebuild the
Buildings if there is substantial damage by fire or other
casualty. Landlord may cancel this Lease within thirty (30) days
after the substantial fire or casualty by giving Tenant notice of
Landlord's intention to demolish or rebuild. The Lease will end
thirty (30) days after Landlord's cancellation notice to Tenant.
Tenant must deliver the Premises to Landlord on or before the
cancellation date in the notice and pay all rent due to the date
of the fire or casualty. If the Lease is canceled, Landlord is
not required to repair the Premises or Buildings. The
cancellation does not release Tenant of liability in connection
with the fire or casualty.
12. INSPECTION AND ENTRY BY LANDLORD - Tenant agrees that
Landlord and Landlord's agents and other representatives shall
have the right to enter into and upon the Premises, or any part
thereof, at all reasonable hours for the purpose of examining the
same, or making such repairs or alterations therein as may be
necessary for the safety and preservation of the Premises.
(A) Tenant also agrees to permit Landlord or the
Landlord's agents to show the Premises to persons wishing to
lease or purchase the Premises. Tenant further agrees that on and
after the sixth month preceding the Expiration Date, Landlord or
Landlord's agents shall have the right to place notices on the
front of said Premises, or any part thereof, offering the
Premises "To Let," "For Lease" or "For Sale" and the Tenant
agrees to permit the same to remain thereof without hindrance or
molestation.
13. GLASS - Landlord may replace, at the expense of Tenant, any
and all broken glass in and about the Premises. Landlord may
insure, and keep insured, all plate glass in the Premises for and
in the name of Landlord. Bills for the premiums therefor shall be
rendered by Landlord to Tenant at such times as Landlord may
elect, and shall be due from and payable by Tenant when rendered,
and the amount thereof shall be deemed Additional Rent. Damage
and injury to the said Premises, caused by the carelessness,
negligence or improper conduct on the part of Tenant or Tenant's
agents or employees shall be repaired as speedily as possible by
Tenant at Tenant's own cost and expense.
14. SIGNS - Tenant shall neither place, nor cause nor allow to
be placed, any sign or signs of any kind whatsoever at, in or
about the entrance to said Premises or any part of same, except
in or at such place or places as may be indicated by the
Landlord's written consent, which consent shall not be
unreasonably withheld. Any sign installation shall not adversely
affect or damage the physical structure of the Buildings, nor
detract from the overall harmony of the Buildings and
Development. In the event Landlord or Landlord's representatives
shall deem it necessary to remove any such sign in order to paint
the Premises or the Buildings wherein same is situated or make
any repairs, alterations, improvements in or upon the Premises or
the Buildings or any part of the Premises or the Buildings,
Landlord shall have the right to do so, providing any sign be
removed and replaced at Landlord's expense whenever the said
repairs, alterations or improvements shall be completed. Tenant
agrees that it will, at its own cost and expense, remove any and
all signs upon vacating the premises and restore the Buildings to
its original condition before any sign or signs were installed.
15. INSURANCE - On or before the date of this Lease, Tenant
shall, at Tenant's sole cost, procure and continue in force
commercial general liability insurance with a combined single
limit for bodily injury and property damage of not less than
$1,000,000 per occurrence, including, without limitation,
contractual liability coverage for the performance by Tenant of
the indemnity provision set forth in this Lease. Such minimum
limits shall in no event limit the liability of Tenant under this
Lease. Such insurance shall be with companies reasonably
acceptable to Landlord, and Tenant shall furnish Landlord with
certificates of coverage. Such insurance shall not be cancelable
or subject to reduction of coverage or other material
modification except after at least ten (10) days' prior written
notice to Landlord by the insurer. Such insurance shall be
written as a primary policy, not contributing with and not in
excess of the coverage which Landlord may carry, and shall name
Landlord as an additional insured. Tenant shall, at least ten
(10) days prior to the expiration of such insurance, furnish
Landlord with a renewal certificate for such insurance. Tenant
agrees to furnish to Landlord, prior to the effective date of
this Lease, a binder or other such certificate evidencing such
insurance coverage.
(A) Tenant agrees that it will, at its own cost and
expense, keep its furniture, fixtures, equipment, records, and
personal property insured against loss or damage by fire or other
peril normally covered by "extended coverage" endorsements, and
shall deliver to Landlord prior to the effective date of this
Lease, a binder or other such certificate of such insurance
coverage.
16. SUBLETTING OR ASSIGNMENT - Neither the Premises nor any
portion of the Premises may be sublet, nor may this Lease be
assigned without the express written consent of Landlord, which
consent shall not be unreasonably withheld, and upon such terms
and conditions as Landlord may require.
17. DEFAULT
(A) The occurrence of any of the following events shall
constitute a default by Tenant under this Lease: (i) Tenant fails
to timely pay any installment of Base Rent or any other sum due
under this Lease, and such failure is not cured within five (5)
days after written notice is given to Tenant; (ii) Tenant fails
to timely perform any other obligation to be performed by Tenant
under this Lease, and such failure is not cured within ten (10)
days after written notice is given to Tenant; provided, however,
that if more than ten (10) days is reasonably required to cure
such failure, Tenant shall not be in default if Tenant commences
such cure within such ten (10) day period and diligently
prosecutes such cure to completion; or (iii) Tenant or any
guarantor files a petition in bankruptcy, becomes insolvent, has
taken against such party in any court, pursuant to state or
federal statute, a petition in bankruptcy or insolvency or for
reorganization or appointment of a receiver or trustee, which
involuntary petition is not dismissed within sixty (60) days,
petitions for or enters into an arrangement for the benefit of
creditors or suffers this Lease to become subject to a writ of
execution.
(B) On any default by Tenant under this Lease, Landlord
may at any time, without waiving or limiting any other right or
remedy available to Landlord, (i) perform in Tenant's stead any
obligation that Tenant has failed to perform, and Landlord shall
be reimbursed promptly for any reasonable cost incurred by
Landlord with interest from the date of such expenditure until
paid in full at the rate of eighteen percent (18%) per annum (the
"Interest Rate"), (ii) terminate Tenant's rights under this Lease
by written notice, (iii) reenter and take possession of the
Premises by any lawful means (with or without terminating this
Lease), or (iv) pursue any other remedy allowed by law. Tenant
shall pay to Landlord the reasonable cost of recovering
possession of the Premises, all reasonable costs of reletting,
including reasonable renovation, remodeling and alteration of the
Premises, the amount of any commissions paid by Landlord in
connection with such reletting, and all other reasonable costs
and damages arising out of Tenant's default, including reasonable
attorneys' fees and costs. Notwithstanding any termination of
Tenant's rights under this Lease or reentry of the Premises, the
liability of Tenant for the rent payable under this Lease shall
not be extinguished for the balance of the Term, and Tenant
agrees to compensate Landlord on demand for any deficiency. No
reentry or taking possession of the Premises or other action by
Landlord on or following the occurrence of any default by Tenant
shall be construed as an election by Landlord to terminate this
Lease or as an acceptance of any surrender of the Premises,
unless Landlord provides Tenant written notice of such
termination or acceptance. Following a default by Tenant under
this Lease, Landlord shall exercise commercially reasonable, good
faith efforts to mitigate its damages as required by applicable
Utah law.
(C) If Tenant fails to pay within five (5) days of the
date due any amount required to be paid by Tenant under this
Lease, such unpaid amount shall bear interest at the Interest
Rate from the due date of such amount to the date of payment in
full, with interest, and Landlord may also charge a sum of five
percent (5%) of such unpaid amount as a service fee. All amounts
due under this Lease are and shall be deemed to be rent or
Additional Rent, and shall be paid without abatement, deduction,
offset or prior notice or demand, unless specifically provided by
the terms of this Lease. Landlord shall have the same remedies
for a default in the payment of any amount due under this Lease
as Landlord has for a default in the payment of Base Rent.
(D) Landlord shall not be in default under this Lease
unless Landlord or the holder of any mortgage or deed of trust
covering the Buildings whose name and address have been furnished
to Tenant in writing fails to perform an obligation required of
Landlord under this Lease within thirty (30) days after written
notice by Tenant to Landlord and to such holder, specifying the
respects in which Landlord has failed to perform such obligation.
If the nature of Landlord's obligation is such that more than
thirty (30) days are reasonably required for performance or cure,
Landlord shall not be in default if Landlord or such holder
commences performance within such thirty (30) day period and
after such commencement diligently prosecutes the same to
completion. In no event may Tenant terminate this Lease or
withhold the payment of rent or other charges provided for in
this Lease as a result of Landlord's default.
(E) If after default in payment of rent or violation of
any other provision of this Lease, or upon the expiration of this
Lease, Tenant moves out or is dispossessed and fails to remove
any trade fixtures or other property prior to such said default,
removal, expiration of Lease, or prior to the issuance of the
final order or execution of the warrant, then and in that event,
the said fixtures and property shall be deemed abandoned by the
said Tenant and shall become the property of Landlord.
18. PARKING - Automobiles of Tenant and Tenant's agents,
employees, contractors, independent contractors, or invitees
shall be parked only within the parking stalls designated by
Landlord in accordance with Tenant's Parking Allocation or
parking areas not otherwise reserved by Landlord or specifically
designated for use by any other tenant or occupants associated
with any other tenant. Tenant and Tenant's agents, employees,
contractors, independent contractors, or invitees use of the
parking areas, including parking stalls designated for Tenant's
exclusive use, shall be limited to such uses as are ordinary and
customary for commercial office uses. In no event shall Tenant
or Tenant's agents, employees, contractors, independent
contractors, or invitees leave automobiles in the parking areas,
including parking stalls designated for Tenant's exclusive use,
for a consecutive time period in excess of twenty-four (24)
hours. Landlord may from time to time designate additional
parking spaces for Tenant and make such other rules and
regulations as Landlord reasonably determines to be necessary or
appropriate to the proper use of the parking areas. Landlord and
Landlord's representatives may, without any liability to Tenant
or Tenant's agents, employees, contractors, independent
contractors, or invitees cause to be removed any automobile of
Tenant or Tenant's agents, employees, contractors, independent
contractors, or invitees that may be parked wrongfully in a
prohibited or reserved parking area, and Tenant agrees to
indemnify, defend and hold harmless Landlord from and against all
claims, liabilities and expenses, including attorneys' fees,
arising in connection with such removal. In addition, Tenant
agrees that it shall pay the cost of such removal as Additional
Rent hereunder.
19. NO WAIVER BY LANDLORD - The failure of Landlord to insist
upon a strict performance of any of the terms, conditions and
covenants herein shall not be deemed a waiver of any rights or
remedies that Landlord may have, and shall not be deemed a waiver
of any subsequent breach or default in the terms, conditions and
covenants herein contained. This instrument may not be changed,
modified, discharged or terminated orally.
20. LEASE NOT A LIEN - This Lease shall not be a lien against
the Premises in respect to any mortgage that may now or in the
future be placed against said Premises, and that the recording of
such mortgage or mortgages shall have preference and precedence
and be superior and prior in lien of this Lease, irrespective of
the date of recording, and the Tenant agrees to execute without
cost any such instrument which may be deemed necessary or
desirable to further effect the subordination of this Lease to
any such mortgages, and a refusal to execute such instrument
shall entitle the Landlord, or the Landlord's assigns and legal
representative to the option of canceling this Lease without
incurring any expenses or damages and the Term hereby granted is
expressly limited accordingly.
21. ESTOPPEL CERTIFICATE - Tenant shall, within fifteen (15)
days after Landlord's written request, execute and deliver to
Landlord an estoppel certificate in favor of Landlord and such
other persons as Landlord shall request setting forth the
following: (a) a ratification of this Lease; (b) the Commencement
Date and Expiration Date; (c) that this Lease is in full force
and effect and has not been assigned, modified, supplemented or
amended (except by such writing as shall be stated); (d) that all
conditions under this Lease to be performed by Landlord have been
satisfied, or, in the alternative, those claimed by Tenant to be
unsatisfied; (e) that, to the best of Tenant's knowledge, no
defenses or offsets exist against the enforcement of this Lease
by Landlord, or, in the alternative, those claimed by Tenant to
exist; (f) the date to which rent has been paid; (g) the amount
of the Security Deposit; and (h) such other information as
Landlord may reasonably request. Landlord's mortgage lenders and
purchasers shall be entitled to rely on any estoppel certificate
executed by Tenant.
22. QUIET POSSESSION - Landlord covenants that Tenant, on
paying the rent and Additional Rent, and faithfully performing
the covenants required or imposed upon Tenant, shall and may
peacefully and quietly have, hold and enjoy the Premises for the
Term, provided however, that this covenant shall be conditioned
upon the retention of title to the Premises by the Landlord.
23. ARBITRATION - Any controversy or claim arising out of or
relating to this contract, or the breach thereof, shall be
settled by arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, and
judgment upon the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof.
24. ATTORNEYS FEES - In the event of any action at law or in
equity between Landlord and Tenant to enforce any of the
provisions and/or rights hereunder or to recover damages for
breach thereof, the unsuccessful party to such litigation
covenants and agrees to pay to the successful party all costs and
expenses, including reasonable attorney's fees, incurred therein
by such successful party, and if such successful party shall
recover judgment in any such action or proceeding, such costs and
expenses and attorney's fees shall be included in and as a part
of such judgment.
25. FORCE MAJEURE - Tenant agrees that Landlord shall not be
liable for any delay, detention, failure to perform, loss or
damages, including consequential damages, resulting from causes
beyond the control of Landlord, including but not limited to:
acts of God; acts or omissions of Tenant; fires; strikes;
insurrections; riots; embargoes; delays in transportation;
inability to obtain supplies; or requirements or regulations of
the United States government or any other civil or military
authority. Delays or nonperformance excused by this provision
shall not excuse payment of any amount due hereunder owed at the
time of the occurrence.
26. INDEMNITY - Tenant will indemnify landlord and save it
harmless from and against any and all claims, actions, damages,
injury, damage to property and/or any other civil liability
arising from or out of any occurrence in, upon or at the Premises
or from the occupancy or use by Tenant of the Premises or any
part thereof, relating to any breach of any covenant required to
be performed by Tenant hereunder, or occasioned wholly or in part
by any act or omission, including, without limitation, any
hazardous substances, hazardous wastes, pollutants or
contaminants deposited, released or stored by Tenant, its agents,
contractors, independent contractors,, employees, servants,
sublessees, concessionaires or invitees.
27. NOTICES - Any notices or demand required or permitted to be
given under this Agreement shall be deemed to have been properly
given when, and only when, the same is in writing and has been
personally delivered to an officer of Landlord or Tenant at the
following addresses:
LANDLORD: Tri-Xxx, X.X.
Attention: M. Xxx Xxx
0000 Xxxx 0000 Xxxxx
Xxxx Xxxxxx Xxxx, Xxxx 00000
TENANT: Paradigm Medical Industries, Inc.
0000 Xxxx 0000 Xxxxx
Xxxx Xxxxxx Xxxx, Xxxx 00000
28. SEVERABILITY - If any provision of this Lease or the
application of any provision of this Lease to any person or
circumstance shall to any extent be invalid, the remainder of
this Lease or the application of such provision to persons or
circumstances other than those as to which such provision is held
invalid shall not be affected by such invalidity. Each provision
of this Lease shall be valid and enforceable to the fullest
extent permitted by law.
29. BROKERAGE COMMISSIONS - Tenant shall indemnify, defend and
hold harmless Landlord from and against all claims, liabilities
and expenses, including reasonable attorneys' fees, relating to
any brokerage commission or finder's fee arising out of any
agreement made by Tenant. Landlord shall indemnify, defend and
hold harmless Tenant from and against all claims, liabilities and
expenses, including reasonable attorneys' fees, relating to any
brokerage commission or finder's fee arising out of any agreement
made by Landlord.
30. RECOURSE BY TENANT - Anything in this Lease to the contrary
notwithstanding, Tenant shall look solely to the equity of
Landlord in the Buildings and the land serving the Buildings,
subject to the prior rights of the holder of any mortgage or deed
of trust, for the collection of any judgment (or other judicial
process) requiring the payment of money by Landlord on any
default or breach by Landlord with respect to any of the terms,
covenants and conditions of this Lease to be observed or
performed by Landlord, and no other asset of Landlord or any
other person shall be subject to levy, execution or other
procedure for the satisfaction of Tenant's remedies.
31. ENTIRE AGREEMENT - It is agreed between the parties hereto
that there are no other agreements or understandings between them
relating to the subject matter of this Agreement. This Agreement
supersedes all prior agreements, oral or written, between the
parties and is intended as a complete and exclusive statement of
the Agreement between the parties. Neither this Agreement, nor
its execution, have been induced by any reliance, representation,
stipulation, warranty, agreement or understanding of any kind
other than those herein expressed. No change or modification of
this Agreement shall be valid unless the same be in writing and
signed by the parties.
32. BINDING EFFECT - It is mutually understood and agreed that
the covenants and agreements contained in this Lease shall be
binding upon the parties hereto and upon their respective
successors, heirs, executors and administrators.
33. GOVERNING LAW - This Agreement shall be construed in
accordance with and governed by the laws of the State of Utah,
irrespective of the fact that a party hereto may not be a
resident of or maintain a place of business in that State.
34. AUTHORIZATION - Each individual executing this Lease does
represent and warrant to each other so signing (and each other
entity for which another person may be signing) that he has been
duly authorized to deliver this Lease in the capacity and for the
entity set forth where he signs.
IN WITNESS WHEREOF, the parties have set their hand and
seal this sixth day of December, 1996.
LANDLORD: Tri-Xxx, X.X. a Utah limited liability
company,
By: M. Xxx Xxx
Its: Managing Member
TENANT: Paradigm Medical Industries, Inc.
By: Xxxxxx Xxxxxx
Its: Chief Executive Officer
Attached hereto and incorporated herein:
Exhibit "A" - Floor Plan
Exhibit "B" - Development Site Plan
Exhibit "C" - Preparation of Premises for Occupancy and
Permission To Modify Premises
Exhibit "D" - Lease Payment and Common Area Maintenance Payment
Schedule
EXHIBIT "C"
to
COMMERCIAL LEASE
PREPARATION OF PREMISES FOR OCCUPANCY
The respective obligations (if any) of Landlord and Tenant
to prepare the Premises referred to in the foregoing instrument
for occupancy are set forth on the attachments.
Landlord: None.
Tenant: None.
PERMISSION TO MODIFY PREMISIS
1780 LC
Tenant may remove the carpet in the North-East room of the
Premisis and install their own floor covering.
Tenant may also make modifications to the ceiling of the
North-East room for purposes of preparing the room for "clean"
component assembly.
EXHIBIT "D"
to
COMMERCIAL LEASE
Payment Due Lease CAM Total
January 1, 1997 $2,971.87 $353.50 $3,325.37
February 1, 1997 $2,971.87 $353.50 $3,325.37
March 1, 1997 $2,971.87 $353.50 $3,325.37
April 1, 1997 $2,971.87 $353.50 $3,325.37
May 1, 1997 $2,971.87 $353.50 $3,325.37
June 1, 1997 $2,971.87 $353.50 $3,325.37
July 1, 1997 $2,971.87 $353.50 $3,325.37
August 1, 1997 $2,971.87 $353.50 $3,325.37
September 1, 1997 $2,971.87 $353.50 $3,325.37
October 1, 1997 $2,971.87 $353.50 $3,325.37
November 1, 1997 $2,971.87 $353.50 $3,325.37
December 1, 1997 $2,971.87 $353.50 $3,325.37
Late fees begin on the 11th day of the month. Please include the
late fees with payment.
Amendment to Lease Agreement
For Good Consideration, TRI-XXX, X.X. a Utah limited liability
company ("Landlord"), and PARADIGM MEDICAL INDUSTRIES, INC., a
Delaware corporation ("Tenant"), under a certain Lease Agreement
("Lease") between them for premises known as 0000 Xxxx 0000 Xxxxx,
Xxxx Xxxxxx Xxxx, Xxxx, dated the 22 day of November 1995, under
which the Tenant continues month-to-month, hereby modify and amend
said Lease in the following particulars:
Landlord agrees to lease to Tenant an additional 2,233 square feet
of office space in the buildsing located at 1780 West 2300 South in
the city of Xxxx Xxxxxx Xxxx, Xxxxxx xx Xxxx Xxxx, Xxxxx of Utah
("Additional Premises"), for a term of 26 days beginning on December
5, 1996 and ending on December 31, 1996, for use and occupancy as
office. Tenant accepts and leases the Additional Premises in its
current condition, configuration, and state of repair. Consideration
for the Additional Premises are as follows:
1. RENT -- Tenant shall pay the rental of Ten Dollars ($10.00) plus
the value Tenant in its sole discretion calculates as the utility
from leasing the Premises for the term of this Amendment.
2. SERVICES PROVIDED BY LANDLORD -- Landlord is not obligated to
provide any services to the Additional Premises as part of this
Amendment.
3. COMMON AREA MAINTENANCE FEE -- The Common Area Maintenance Fee
is included in the Rent.
All other terms and conditions shall remain as contained in the
Lease.
IN WITNESS WHEREOF, the parties have set their hand and seal
this 6th day of December, 1996.
By: Xxxxxx Xxxxxx By: M. Xxx Xxx
PARADIGM MEDICAL INDUSTRIES, INC. TRI-XXX, X.X.
Chief Executive Officer Managing Member
(Tenant) (Landlord)
