LEASE AGREEMENT
THIS LEASE AGREEMENT made and entered into this _21st day of
_____February, 2000, by and between Eden Roc Partnership a California General
Partnership, hereinafter referred to as the "Landlord", and Paradigm Medical
Industries, hereinafter referred to as the "Tenant":
WITNESSETH
ARTICLE_L PREMISES AND TERN. Landlord hereby leases and by these
presents does lease and demise to the Tenant, and the Tenant does lease and take
from the Landlord, the premises, consisting of approximately 29,088 square feet
of office/warehouse space, the "Demised Premises", situated in the building
erected at 2355 South 1070 West, Salt Lake City, Utah, Suite A and B, together
with all the easements, rights, privileges and appurtenances thereunto belonging
or in any way appertaining to the Demised Premises.
TO HAVE AND TO HOLD the said Demised Premises, together with all and
singular the improvements, appurtenances, rights, privileges and easements
thereunto belonging to or in anywise appertaining, unto Tenant for a term
commencing as of the date set forth herein under Article 3 and continuing
thereafter to and including the date three years from the first day of the first
month immediately following such commencement date, subject, however, to
extension and renewal if hereafter provided. When the date of commencement of
the term has been determined, Landlord and Tenant may enter into an agreement in
recordable form setting forth such date at the request of either the Landlord or
the Tenant.
ARTICLE 3. TENANT'S POSSESSION. The term of this Lease shall commence
when the Landlord delivers to Tenant, in a condition ready for occupancy,
possession of the Demised Premises described on Exhibit "B"located in the
building constructed by the Landlord. Tenant shall accept possession of the said
improvements when they are ready for occupancy.
ARTICLE 4. OBLIGATIONS OF TENANT AND LANDLORD.
4.1 Real Estate Taxes. Tenant shall pay, within ten (10) days from the
date Landlord submits to Tenant a statement setting forth the amount due
Landlord under the provisions of this paragraph, Tenant's proportionate share of
the real property taxes and assessments on the Demised Premises as additional
rent hereunder. Tenant's proportionate share of such taxes and assessments shall
be determined by multiplying the total amount of such taxes and assessments by a
fraction, the numerator of which is the floor area of the Demised Premises and
the denominator of which is the total floor area of the building or buildings
being assessed. If the Landlord shall be required to maintain a tax impound
account, Tenant shall, at Landlord's request, pay one-twelfth (1/12) of Tenant's
proportionate share of the estimated annual taxes in advance each month in
additional to the minimum rental payment due hereunder. Landlord shall pay all
taxes, and assessments lawfully levied or assessed against the building or
buildings or any part thereof; provided, however, that Landlord may, dispute and
contest the same. Tenant may, at its sole cost and expense, after it has paid in
full its proportionate share of any taxes or assessments due hereunder, upon
fifteen (15) days prior written notice to Landlord, contest with the appropriate
governmental authority such tax or assessment. Tenant shall be entitled to any
refund of any tax or penalty paid by Tenant, or paid by Landlord and reimbursed
by Tenant to Landlord. (See Lease Rider "A" Building Expenses attached hereto
and incorporated herein).
4.2 Personal Property Taxes. Tenant shall additionally
pay, when due, all personal property taxes and license fees levied and assessed
against the Demised Premises during the terms of the lease. Nothing contained in
this Lease shall require or be construed to obligate the Tenant to pay any
franchise , excise, corporate, estate, inheritance, succession, capital levy or
transfer tax of the Landlord, or any income, profits or revenue tax upon the
income of the Landlord; provided however, that in any case when a tax may be
levied, assessed or imposed upon the Landlord for the privilege of renting or
leasing the Demised Premises or which is based upon the rental revenue derived
therefrom, Tenant shall pay to Landlord as additional rent hereunder the amount
of said tax, but in no event shall the Tenant be obligated to pay an amount
greater than that which would be payable if the Demised Premises were the only
asset of the Landlord.
43. Tenant Insurance. The Tenant shall, during the entire term of this
Lease, at the Tenant's sole cost and expense, but for the mutual benefit of the
Landlord and Tenant, maintain general public liability insurance against claims
for personal injury, death or property damage occurring upon, in or about the
entire property described on Exhibit "B" attached hereto and on, in or about the
adjoining streets and passageways, such insurance to afford protection to the
limit of not less than $500,000 in respect to injury or death to a single
person, and to the limit of not less than $1,000,000 in respect to one accident,
and the the limit of not less than $100,000 in respect to property damage or a
combined single limit policy not less than $1,000 per occurrence. All policies
shall name Landlord and the mortgagee of the property as an additional named
insured, as their interest may appear.
Tenant shall also provide insurance coverage to the extent of the full
replacement value covering all of Tenant's property, fixtures, equipment, tools,
improvements, stock, goods, wares or merchandise, that it may have in or on or
about the Demised Premises.
Other forms of insurance may be reasonably required to cover future
risks against which a prudent Tenant would protect itself.
All policies of insurance provided for herein shall be issued by
insurance companies with a general nolicy holder's rating of not less than A and
a financial rating of AAA, as rated in the most current available "Best's Guide"
Insurance Reports, and qualified to do business in the state of Utah.
To the extent that Tenant fails to provide the foregoing insurance,
either hazard or liability, Tenant shall be responsible to Landlord, as his
interest appears, for such damage that would have been insured by said policies
but for Tenant's failure to obtain such insurance.
The policies for the foregoing insurance shall provide that the proceeds
thereof shall be payable to the Tenant and to the Landlord, as their respective
interests may appear. Said required Tenant insurance coverage shall be verified
to the Landlord by an insurance carrier in the form of either a certified copy
of the policy or other written verification of insurance coverage acceptable to
Landlord and the lending institution for the Demised Premises. Such insurance
policies shall provide that Landlord be given thirty (30) days written notice
prior to any cancellation or alteration of any policy.
4.4 Landlord's Insurance. Subject to Tenant's reimbursement, Landlord
shall provide fire, lightning, and extended coverage ("all risk") insurance and
such additional insurance coverage as may be required by Landlord's mortgage
(including "loss of rents" insurance) on the building, of which the Demised
Premises is a part, for the full replacement value thereof or such value as is
required by Landlord's mortgagee, whichever is greater, against such loss.
Tenant shall reimburse
Landlord, as additional rental hereunder, for Tenant's proportionate share
(determined in the same manner as Tenant's proportionate share of taxes and
assessments herein above) of the costs of the insurance premium therefor within
ten (10) days from the date Landlord submits to Tenant a statement setting forth
the amount due Landlord under the provisions of this paragraph. If the Landlord
is required to maintain a building insurance premium impound account, Tenant
shall pay 1/12 of Tenant's proportionate share of the estimated annual building
insurance premium in advance each month along with the minimum rental payment.
(See Lease Rider "A" Building Expenses attached hereto and incorporated herein).
4.5 Subrogation. Landlord and any other Tenants of the building shall
not be liable to Tenant or anyone claiming by, through or under Tenant,
including an insurance carrier or carriers, for any insurable loss or damage,
and no such carriers shall have the right to subrogate against Landlord, or any
other Tenant. All of the insurance policies required hereunder pertaining to the
Demised Premises shall contain an endorsement by the respective insurance
carriers waiving any and all rights of subrogation against Landlord, and any
other Tenant of the building, a copy of which endorsement or endorsements, or
evidence thereof by way of certificate shall be furnished to the Landlord.
4.5 Assumption of Risk. Anything herein to the contrary notwithstanding,
after the commencement of the term as provided in Article 3 the Tenant assumes
full risk of damage to its property, fixtures, equipment, tools, improvements,
stock, goods, wares or merchandise, that it may have in or on or about the
Demised Premises, resulting from fire, lightning, extended coverage perils,
flood and any catastrophe, regardless of cause or origin. The Landlord shall not
be liable to Tenant or anyone claiming by, through or under Tenant, including
Tenant's insurance carrier or carriers, for any loss or damage resulting from
fire, lightning, or extended coverage perils or from an act of God. Landlord
shall not be liable to the insurance carrier for damages insured against, either
directly or by way of subrogation.
ARTICLE 5. TENANT'S USE. The Tenant may use the Demised Premises for
conducting its warehouse, administration and distribution business. Tenant shall
use the Demised Premises only for lawful and proper purposes, which are
permissible under applicable law (including under applicable zoning laws).
Tenant shall not make any use of the Demised Premises which will cause
cancellation of any insurance policy covering the same and shall not keep or use
on the Demised Premises any article, item, or thing which is prohibited by the
terms of the hazard insurance policy covering the improvements. Tenant shall not
commit any waste upon the Demised Premises and shall not conduct or allow any
business, activity or thing on the Demised Premises which is or becomes
unlawful, prohibited, or a nuisance or which may cause damage to Landlord, to
occupants or other tenants in the vicinity, or to other third parties. Tenant
shall comply with and abide by all laws, ordinances, and regulations of all
municipal, county, state and federal authorities which are now in force or which
may hereafter become effective with respect to use and occupancy of the Demised
Premises. Tenant shall make no alteration or addition to the premises without
the prior written approval of Landlord.
Tenant represents to Landlord that neither Tenant or any affiliates of
Tenant will unlawfully generate, store or dispose of any Hazardous Substances
(as defined below) at or in the area of the Demised Premises.
Tenant covenants with Landlord: a) to prohibit any unlawful generation,
storage or disposal of Hazardous Substances at the Premises, b) to deliver
promptly to Landlord true and complete copies of all notices received by Tenant
from any governmental
authority with respect to the unlawful generation, storage or disposal by Tenant
of Hazardous Substances (whether or not at the Premises); and c) to permit entry
onto the Premises by Landlord or Landlord's representative(s) at any reasonable
time to verify Tenant's compliance with the foregoing.
Tenant agrees to indemnify and defend Landlord (with legal counsel
reasonably acceptable to Landlord) from and against any costs, fees or expenses
(including, without limitation, cleanup expenses, third party claims and
environmental impairment expenses and reasonable attorneys' fees and expenses)
incurred by Landlord caused by Tenant's unlawful generation, storage, or
disposal of Hazardous Substances at or near the Demised Premises in accordance
with the foregoing and with Tenant's compliance with the foregoing
representations and covenants. This indemnification by Tenant shall survive
termination or expiration of this Lease.
"Hazardous Substances" shall mean (i) hazardous substances as defined in
the Comprehensive Environmental Response, Compensation and Liability Act, as
amended, (ii) "PCBs", as defined in 40 C.F.R. 761 et seq. and "TCDD" a defined
in 40 C.F.R. 755 et seq. (or in either case analogous regulations promulgated
under the Toxic Substances Control Act, as amended) (iii) "asbestos" as defined
in 29C.F.R. 1910.1001 et seq. (analogous regulations promulgated under the
Occupational Safely and Health Act of 1970, as amended), and (iv) waste oils.
ARTICLE 6. POSSESSION. Possession of the Demised Premises shall be
delivered to the Tenant as herein provided, free and clear of all Tenants and
occupants and the rights of either. The Demised Premises shall be free of liens,
encumbrances and violations of laws, ordinances and regulations adversely
affecting the use and occupancy of the Demised Premises, except those presently
of record including mortgages and trust deeds and those that may be specified
herein. Tenant agrees to deliver to the Landlord physical possession of the
Demised Premises including all keys to the Demised Premises, upon the
termination or expiration of this Lease, or any extension thereof, in as good
order, condition and state of repair as when received by Tenant, reasonable wear
and tear thereof and damage by fire, acts of God or the elements excepted.
ARTICLE 7.
7.1 Minimum Rent. The Tenant agrees to pay the Landlord, at such address
as shall from time to time be designated by Landlord, as minimum rental during
the initial term of this Lease without right of offset or deduction, the sum of:
1st Lease year $191,988/year $15,999/month
2nd Lease year $197,747/year $16,479/month
3rd Lease year $203,680/year $16,973/month
Minimum rental shall be payable monthly, in advance, without demand on
the first day of each calendar month throughout the Lease term. Should Tenant's
occupancy of the Demised Premises commence on any day other than on the first
(1st) day of the calendar month, the first rental shall be prorated accordingly.
7.2 Late Penalty. Both rental payment (minimum or additional) shall be
increased by the sum of Twenty Dollars ($50.00) for each day that payment of
such rental to Landlord is later that the fifth (5th) day after which such
rental is due.
ARTICLE 8. SIGNS. With the prior written approval of Landlord, which
approval shall not be unreasoflably withheld, Tenant shall have the right and
privilege to place on the building or Demised Premises signage necessary for the
operation of Tenant's business. Such sign installation shall not adversely
affect or damage the physical structure of the building, nor detract from the
overall harmony of the building and the Metro
Business Park development. All such signs must conform with the codes and
regulations of West Valley City and adhere to the signage criteria for the
development. (See Exhibit "D" Metro Business Park Signage Criteria.)
ARTICLE 9. FIXTURES AND PERSONAL PROPERTY. All fixtures (not including
trade fixtures) installed or attached to the Demised Premises by and/or at the
expense of Tenant shall become the property of Landlord. Any trade fixtures
installed in the Demised Premises by and at the expense of the Tenant shall
remain the property of the Tenant or Tenant's Lessor;, and the Landlord agrees
that so long as Tenant is not in default hereunder, Tenant or its Lessors shall
have the right at any time, and from time to time or within ten (10) days after
the termination of the Lease and this Lease Agreement or any extension or
renewal thereof, to remove any and all of its trade fixtures which it may have
stored or installed in the Demised Premises, provided, however, that (a) Tenant
will repair all damage to the Demised Premises occasioned by such removal, and
(b) if Tenant utilizes all or any portion of the ten (10) day period allowed for
removal of such fixtures and equipment beyond the term of the Lease or renewal
thereof, it shall pay to the Landlord as rental thereof, a sum equal to the
prorata portion of monthly rental thereof. Landlord expressly agrees to waive or
subordinate any claim which Landlord may or might have against the trade
fixtures and personal property of Tenant in favor of a Lessor who intends to
Lease any of the same to Tenant.
ARTICLE 10. UTILITIES. The Tenant shall pay for all water, heat, gas,
electricity, and other costs of utilities connected with, consumed, or used by
it in connection with its occupancy of the Demised Premises. In the event that
one or more of such utilities or related services shall be supplied to the
Demised Premises and to one or more other Tenants within Metro Business Park
development without being individually metered or measured to the Demised
Premises, Tenant's appropriate proportionate share thereof shall be paid as
additional rent based upon Landlord's estimate of Tenant's anticipated usage. In
the event any utility service to the Demised Premises is interrupted or
temporarily discontinued for any reason whatsoever, Landlord shall not be liable
therefor to Tenant and the rent required to be paid hereunder shall not be
abated as a result thereof, and Tenant waives any claims it might otherwise have
against Landlord as a result of any such interruption or discontinuation.
ARTICLE 11. MAINTENANCE AND REPAIRS. It is understood and agreed that
the Landlord shall, at its sole cost and expense, keep and maintain, during the
term of the Lease Agreement or any extension or renewal thereof, the
foundations, and structural support portion of the improvements in proper
condition and in a good state of repair. Landlord shall not be responsible for
any maintenance or repair caused by the fault or neglect of the Tenant, or due
to hazards and risks covered or required to be covered by insurance hereunder
except as insurance proceeds are available therefor. All other maintenance and
repair of said structure, including, but not limited to, painting of walls, and
maintenance, repair and replacement of equipment, shall be the responsibility of
the Tenant.
It is understood and agreed that should either party to this Agreement
fail or refuse to start and to proceed thereafter with due diligence to make any
repairs or maintenance as may be reasonably necessary for the purpose of
fulfilling the terms and conditions of the agreements herein set forth within a
reasonable length of time (not to exceed seven (7) days) after being notified in
writing of the need thereof, that the other party hereto may make such repairs
at the cost and expense of the party so failing or refusing. In the event of an
emergency situation, Tenant may, in its discretion, make emergency repairs
without giving written notification to Landlord, and Landlord shall reimburse
Tenant in the event that such repairs were the responsibility of the Landlord
hereunder and were not due to the fault of Tenant or Tenant's agents. The rights
of Tenant
hereunder specifically do not include the right to offset or deduct any amounts
claimed hereunder from rentals due.
Landlord reserves the right to enter upon the Demised Premises (in a
manner that will not unnecessarily interfere with the business of Tenant) during
business hours at any time to inspect the same and to make necessary repairs to
fulfill Landlord's obligation hereunder.
ARTICLE 12. RESTORATION OF DAMAGE. If the Demised Premises are partially
damaged by fire, the elements or other casualty covered by the "all risk"
insurance policy referred to herein above, Landlord shall promptly repair all
damage and restore the Demised Premises to their condition immediately prior to
the occurrence of such damage. During the period of reconstruction referred to
above, rent payable by Tenant shall ratably xxxxx, based upon the percentage of
the Demised Premises usable during reconstruction. The term of the Lease shall
extend one additional day for each day the entire Demised Premises are not
usable due to the reconstruction process.
If the Demised Premises shall be totally destroyed and/or shall it be
determined that more than sixty (60) days will be required to repair or rebuild
the Demised Premises, both Landlord and Tenant shall have the right to terminate
this Lease Agreement upon written notice to the other within thirty (30) days of
the occurrence at which time this Lease Agreement shall become null and void.
ARTICLE 13. EMINENT DOMAIN. If during the term hereof, or any renewal
term, the entire Demised Premises shall be taken for any public or quasi--public
use under any governmental law, ordinance or regulation, or by right of eminent
domain, this Lease and all right, title and interest of Tenant hereunder shall
cease and come to an end on the date of vesting of title pursuant to such
proceeding, or upon the date Tenant is dispossessed under an order of immediate
occupancy, whichever first occurs. If less than all of the Demised Premises
shall be taken for any public or quasi--public use under any governmental law,
ordinance or regulation, or by right of eminent domain, this Lease shall not
terminate, but the rent payable hereunder during the unexpired portion of this
Lease shall be reduced to such extent as may be fair and reasonable under all of
the circumstances. In the taking of the Demised Premises or any part thereof,
whether or not this Lease is terminated as provided in this Paragraph, the
parties hereto may claim and shall be entitler1 to receive an award or
compensation thereof in accordance with their respective legal rights and
interests.
ARTICLE 14. DEFAULT IN PAYMENT OF RENT OR ABANDONMENT. In
the event of default by Tenant in the performance of its obligation to pay rent
hereunder, or in the event Tenant shall vacate or abandon the Demised Premises,
or in the event Tenant, or any guarantor hereunder, shall be adjudicated as
bankrupt for the benefit of creditors, or enter into an arrangement or
participate voluntarily or involuntarily in any bankruptcy or related proceeding
under Federal or State Law, Landlord shall have the right to terminate this
Lease and to re-enter the Demised Premises or any part thereof with or without
process of law; or Landlord, at his option, without terminating this Lease,
shall have the right to re-enter the Demised Premises and sublet the whole or
any part thereof, for the account of the Tenant, upon as favorable terms and
conditions as the market will allow. In the latter event, the Landlord shall
have the right to collect any rent which may thereafter become payable under
such sublease and to apply the same first to the payment of any expenses
incurred by the Landlord in the dispossessing the Tenant and in subletting the
Demised Premises, and Landlord may charge interest at the rate equal to one
percentage point higher than the prime bank rate of Valley Bank & Trust in Salt
Lake City, which rate shall vary from time to time as the prime bank rate
varies, per annum on such expenses; and, second, to the payment of the rental
herein reserved and the fulfillment of Tenant's covenants hereunder, and the
Tenant shall be liable for amounts equal to
the installments of rent as they become due, less any amounts actually received
by the Landlord and applied on account of rental as aforesaid. The Landlord
shall not be deemed to have terminated this Lease by reason of taking possession
of the Demised Premises unless written notice of such termination has been
served on the Tenant.
ARTICLE 15. OTHER DEFAULTS BY TENANT. It is mutually agreed that if the
Tenant shall default in performing any of the terms or provisions of this Lease
Agreement other than as provided in the preceding Article, and if the Landlord
shall give to the Tenant notice in writing of such default, and if the Tenant
shall fail to cure such default within fifteen (15) days after the date of
receipt of such notice, or if the default is of such a character as to require
more than fifteen (15) days to cure, and if Tenant shall fail to use reasonable
diligence in curing such default, then in such applicable event the Landlord may
cure such default for the account of and at the cost and expense of Tenant, plus
interest at the rate equal to one percentage point higher than the prime bank
rate of Valley Bank & Trust, in Salt Lake City, which rate shall vary from time
to time as the prime bank rate varies, per annum, and the sum so expended by the
Landlord and interest shall be deemed to be additional rent and on demand shall
be paid by the Tenant on the day when rent shall next become due and payable.
Failure to pay any additional rent as provided in this Article shall be deemed a
failure to pay rent within the meaning of Article 14.
ARTICLE 16. NON-DISTURBANCE. Landlord represents and warrants that it
has full right and authority to enter into this Lease. Tenant, upon paying all
rentals and performing all the Tenant's covenants, terms and conditions in this
Lease Agreement, shall and may peacefully and quietly hold and enjoy the Demised
Premises for the term of this Lease Agreement. Tenant understands that other
persons and entities conduct business or reside near the Demised Premises.
Tenant covenants and agrees to conduct its business in such a manner as to not
unreasonably interfere with the occupants of surrounding properties.
ARTICLE 17. WAIVER. No delay or omission by either party hereto to
exercise any right or power accruing upon any noncompliance or default by the
other party with respect to any of the terms hereof shall impair any such right
or power to be construed to be a waiver thereof. Subject to the provisions of
this Article, every such right and power may be exercised at anytime during the
continuance of such default. It is further agreed that a waiver by either of the
parties hereto of any of the covenants and agreements hereof to be performed by
the other shall not be construed to be a waiver of any succeeding breach thereof
or of any other covenants or agreements herein contained.
ARTICLE 18. ATTORNEY'S 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 hereof, 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.
ARTICLE 19. NOTICE. Any notice or demand required or permitted to be
given under this Lease Agreement shall be deemed to have been property given
when, and only when, the same is in writing and has been deposited in the United
States Mail, with postage prepaid, to be forwarded by certified mail and
addressed as follows:
TO THE LANDLORD AT: Eden Roc Partnership
c/o ChrisLynn Investments, LLC
X.X. Xxx 000000
Xxxx Xxxx, Xxxx 00000-0000
Ph. (435) 647--9916
Fax (435) 615--2142
TO THE TENANT AT: Paradigm Medical Industries
0000 Xxxxx 0000 Xxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Ph. (801) 977--8970
Fax (801) 977--8355
Such addresses may be changed from time to time by either party by serving
notices as above provided.
ARTICLE 20. SUBORDINATION. This Lease shall be subject and subordinate
to all mortgages or trust deeds which may now or hereafter affect the real
property comprising the Demised Premises, and also to all renewals,
modifications, consolidations and replacements of said mortgages and Trust
Deeds. Although no instrument or act on the part of Tenant shall be necessary to
effectuate such subordination, Tenant will, nevertheless, execute and deliver in
a prompt and diligent manner such further instruments confirming such
subordination of this Lease as may be desired by the holders of said mortgage or
Trust Deeds
ARTICLE 21. ASSIGNMENT AND SUBLETTING. With the specific prior written
consent of Landlord first obtained, Tenant can, at any time, can assign this
Lease or sublet all or any portion of the Demised Premises. Landlord's consent
shall not be unreasonably withheld. Any purported assignment or sublease without
Landlord's prior written approval shall be null and void and of no force and
effect whatsoever.
ARTICLE 22. SCOPE OF THE AGREEMENT. This Lease Agreement shall be
considered to be the only agreement between the parties hereto. All negotiations
and oral agreements acceptable to both parties are included therein.
ARTICLE 23. OBLIGATIONS OF SUCCESSORS. Landlord and Tenant agree that
all of the provisions hereof are to be construed as covenants and agreements as
though the words importing such covenants and agreements were used in each
separate paragraph hereof, and that all of the provisions hereof shall bind and
inure to the benefit of the parties hereto, and their respective heirs, legal
representatives, successors and assigns.
ARTICLE 24. HOLD OVER. If, at the expiration or termination of this
Lease or any extension thereof, Tenant shall hold over for any reason, if
Landlord consents to the holding over, the tenancy of Tenant thereafter shall be
from month to month only and shall, in the absence of a written agreement to the
contrary, be subject to all the other terms and conditions of this Lease with
the monthly rental adjusted to One Hundred Fifty Percent (150%) of the monthly
rental for the last month of the primary lease renewal term.
ARTICLE 25. PARKING. The plans and specifications for the construction
of the Demised Premises, as approved by the parties, depict adjacent parking for
the non-exclusive use of Tenant. Such parking and maintenance thereof shall
remain under the control of Landlord (subject to reimbursement as hereinafter
set forth) and Landlord shall have the right from time to time to publish
reasonable non--discriminatory regulations for Tenant's use of the parking, with
which Tenant covenants to comply.
ARTICLE 26. METRO BUSINESS PARK DEVELOPMENT. The parties acknowledge
that Exhibit "C" hereto contains a proposed site plan for Landlord's entire
construction project to be known as Metro Business Park (hereinafter referred to
as the "Development"). Tenant acknowledges that the site plan for the
Development is subject to change and that Landlord may construct the Development
in a totally different configuration or may not develop certain
portions. During or after construction of the Development, Landlord reserves the
right to sell the Development or portions thereof as developed with buildings or
as undeveloped property. The parties understand that in the event of Landlord's
sale of portions of the property developed as an integral part of the
Development, prior to such sale, Landlord shall place cross easement, access and
parking easements, suitable to Landlord upon released and unreleased portions of
the Development to facilitate its continued integral use. Common Area
Maintenance provisions contained in the next immediate paragraphs of this Lease
Agreement shall be unaffected by any such partial sale and the Landlord shall
exercise his best efforts to ensure the parking and common areas of the entire
Development, as built, will be under common management.
ARTICLE 27. COMMON AREAS. Areas with the outer property lines of the
Development as delineated on the plat attached hereto marked Exhibit "C",
exclusive of areas therein specified or as build 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 covenants and agrees at
its sole cost and expense to improve said Common Areas by installing and
constructing thereon parking lots, access roads, pedestrian walkways, sidewalks,
exterior canopies, delivery and landscaped areas and lighting facilities to the
extent to which Landlord shall determine to be necessary. Said Common Areas
shall be available for the common use of all Landlord's Tenants in the
Development, their employees, customers and invitee. 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 Landlord.
ARTICLE 28. COMMON AREA MAINTENANCE. Landlord will maintain or cause to
be maintained the Common Areas and Tenant will reimburse Landlord for Tenant's
prorata share of the cost of such maintenance as hereinafter provided.
(a) Common area maintenance costs and expenses shall be determined in
accordance with generally accepted accounting principles consistently applied
and allocated to any particular calendar year on the accrual method of
accounting. Such costs and expenses shall include, but shall not be limited to
upkeep, exterior painting, repairs, replacement and improvements in the Common
Areas, snow removal, sweeping and cleanup, depreciation allowance on any
machinery and equipment owned by Landlord and used in connection therewith,
payroll and payroll costs, utility services including fire line water service
charges, police protection, night watchmen, premiums for public liability,
property damage and fire insurance which shall insure Landlord in the Common
Areas, any real estate tax consultant expense incurred for the purpose of
maintaining equitable tax assessments on the Development, all property taxes or
assessment3 levied or assessed against all Common Areas, which, if not
separately assessed, shall be determined, for land, by the ratio of land area
designated for Common Area use to the total land area in the Development and,
for improvements, on a fair and equitable allocation among the various
improvements in the Development, giving weight to the factors which determine
the amount of the real property tax or assessment in question. In addition, such
costs shall include administrative costs equal to ten percent (10%) of the total
cost paid or incurred by Landlord under this paragraph.
(b) Tenant shall pay as additional rent to Landlord, Tenant's prorata
share of such Common Area expenses in the following manner:
(1) From and after the date the minimum rental
provided for herein has commenced, but subject to adjustment as hereinafter in
this subparagraph (1) provided, Tenant shall pay Landlord in advance on the
first day of each calendar month of the term of this Lease an amount computed by
applying the rate of $0.03 per square foot to the gross leasable area of the
Demised Premises. The foregoing rate per square foot may be adjusted by the
Landlord by notice to Tenant at the end of any calendar month on the basis of
Landlord's experience and reasonably anticipated costs. (See Lease Rider "A"
Building Expenses attached hereto and incorporated herein.)
(2) 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 prorata share
of such Common Area expenses for such calendar year and the payments made by
Tenant with respect to such calendar year as set forth in subparagraph (b) (1).
If Tenant's prorata share of such Common Area expenses exceeds Tenant's payments
so made, Tenant shall pay Landlord the deficiency within ten (10) days after
receipt of such statement. If said payments exceed Tenant's prorata share of
such Common Area expenses, Tenant shall be entitled to offset the excess against
payments next thereafter to become due Landlord as set forth in said
subparagraph (b) (1). Tenant's prorata 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 gross leasable
area in the Demised 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.
There shall be an appropriate adjustment of Tenant's share of the Common
Area expenses as of the commencement and expiration of the term of this Lease.
The term "Gross Leasable Area", as used herein, shall de deemed to mean and
include all fully enclosed areas for the exclusive use and occupancy by
occupant, measured from the exterior surface of exterior walls (and from the
extensions thereof, in the case of openings), including warehousing or storage
areas, clerical or office areas, mezzanines or the second levels of any spaces
and employee areas. "Gross Leasable Area" shall not include docks, areas for
truck loading and unloading nor any utility and/or mechanical equipment vaults
or rooms (to the extent such facilities lie outside exterior building lines).
Anything to the contrary notwithstanding, in the event Landlord or his
designated agent do not maintain the entire common area in the Development, then
and in that event, for the length of time such condition may exist, Landlord's
responsibility shall only be towards the maintenance and repair of those
portions of the Common Area not maintained by others, and the "expense in
connection with said common areas" shall only refer to such areas maintained by
Landlord. In this event, Tenant's proportionate share of the expenses shall be
determined on the basis of the proportion of such expenses which the number of
square feet of gross leasable area in the Demised 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, exclusive of the area occupied and
maintained by others.
ARTICLE 29. SECURITY DEPOSIT. Tenant shall pay an amount equal and first
and months rent at the time of signing of this Lease. The amount equal to first
months rent shall be applied to the first full month of the Lease term. The
amount equal to last months rent shall be held by Landlord as security for the
faithful performance of Tenant throughout the Lease term. The security deposit
shall be refundable to Tenant at the end of the Lease term upon Tenant's
satisfactory performance throughout the Lease term.
ARTICLE 30. FORCE MAJEURE. In the event that either party hereto shall
be delayed or hindered in or prevented from the performance of any act required
hereunder by reason of strikes, lockouts, labor troubles, inability to procure
materials, failure of power, restrictive governmental laws or regulations,
riots, insurrection, war or other reason of a like nature not the fault of the
party delayed in performing work or doing acts required under the terms of this
Lease, then performance of such act shall be excused for the period of the delay
and the period for the performance of any such act shall be extended for a
period equivalent to the period of such delay. The provisions of this Section
shall not operate to excuse Tenant from prompt payment of rent or any other
payments required by the terms of this Lease.
ARTICLE 31. The Landlord hereby grants Tenant the right and option to
extend this Lease for an additional five (5) years, with written notice six (6)
months prior to expiration of this lease. If, at the time of exercise of such
option, Tenant is more than twenty (20) days in arrears in any such payment due
under this Lease, Landlord may, at its option, deny such renewal.
ARTICLE 32. The Minimum Rent payable under Article Seven (7) of the
Lease for the option years shall be ninethy-five percent (95%) of the then
current market rate for the building. The minimum rent will not be less than the
per square foot monthly rental rate of the sixtith (60th) month of the lease.
ARTICLE 33. The submission of this Lease for examination does not
constitute a reservation of or option for the Lease Premises and this Lease
becomes effective as a Lease only upon execution and delivery thereof by
Landlord to Tenant.
IN WITNESS WHEREOF, the Landlord and Tenant have duly executed and
affixed their respective seals to this Lease Agreement on the day and year first
above written.
LANDLORD: Eden Roc Partnership
a California general partnership
By:/s/ Xxxxxxx X. Xxxxxx
------------------------
Xxxxxxx X. Xxxxxx
Managing General Partner
TENANT: Paradigm Medical Industries
By:/s/ Xxxxxx X. Xxxxxx
------------------------
Xxxxxx X. Xxxxxx, President/CEO
Attached hereto and incorporated herein: Lease Rider "A" -- Building Expenses
Exhibit "A" - Building Site Plan Exhibit "B" - Building Floor Plan Exhibit "C" -
Overall Metro Business Park Site Plan Exhibit "D" - Metro Business Park Signage
Criteria
Exhibit "E" -- Declaration of Easements, Covenants, and
Restrictions
LEASE RIDER "A"
"BUILDING EXPENSES"
With reference to Tenant's appropriate proportionate share of property
tax, insurance expenses and common area service expenses as defined in the Lease
Agreement, Tenant hereby agrees to pay, as additional monthly rental, Two
Thousand Three Hundred Fifty Six and no cents ($2,356.00) to be paid monthly, in
advance, along with the monthly rental previously stated in Lease Article 7.
Minimum Rent. The above stated fee is an estimated and adjustable fee for such
expenses and services. At the end of each calendar year, Landlord shall furnish
a statement to Tenant defining what the actual tax, insurance and common area
expenses are for the calendar year just expired, stating what Tenant's
appropriate proportionate share of such expenses are and compare such to that
amount which has been prepaid by Tenant. If Tenant's proportionate share of such
expenses exceeds Tenant's payments so made, Tenant shall pay Landlord the
deficiency within ten (10) days after receipt of said statement. If Tenant's
prepaid payments exceed Tenant's proportionate share of such expenses, the
excess shall be applied against future payments for such expenses.
Landlord's Initials Tenant's Initials
