EXHIBIT 10.5
BUILDING LEASE AGREEMENT
This BUILDING LEASE AGREEMENT ("Lease")is made and entered into as of this
17th day of April, 2000 by and between THE XXXXXXX X. XXXXX and XXXXXXXX X.
XXXXX TRUST ("Landlord") and COMPUTERIZED THERMAL IMAGING, INC., a Nevada
corporation ("Tenant").
1. Lease Landlord hereby leases to Tenant, and Tenant hereby
leases from Landlord, the commercial building located at and commonly referred
to as 0000 Xxxx Xxxxxx Xxxxxxxxx, Xxxxxx Xxxxx, Xxxxxxxxxx (the "Building") .
2. Term The term of this Lease shall commence on April 20, 2000
and end on April 19, 2003.
3. Rent The rent shall be $7,500 per month for the first twelve
months, payable in advance on or before the 20th day of each month commencing
April 20, 2000, and shall increase annually as of April 20 of each succeeding
year at a rate equal to the percentage increase, if any, in the Consumer Price
Index published by the United States Department of Labor, Bureau of Labor
Statistics (All Urban Consumers - San Francisco Bay Area), or any comparable
government index then in effect, for the preceding calendar year. Tenant
shall pay Landlord a late charge of $375 if the rent is not paid on or before
the 25th of the month in which the rent is due.
4. Use Tenant shall use the Building for research and development
in the field of infrared transmitting and imaging technology, limited light
manufacturing pertaining thereto, and for no other purpose whatsoever. Under
no circumstances shall Tenant store or use hazardous substances, materials or
wastes at or in the Building, commit waste in or upon the Building or use the
Building in any manner that creates a nuisance, violates any laws, regulations
or ordinances or increases or causes a cancellation of any policies of
insurance carried by Landlord concerning the Building or the contents of the
Building.
5. Services and Utilities Landlord shall provide Tenant with the
services and utilities that Landlord customarily has provided to the Building,
including, but not limited to, water, electricity, HVAC, janitorial services
and exterior and structural repairs. Notwithstanding the foregoing, Landlord
shall have no obligation to make interior, non-structural repairs, or to paint
or carpet the interior walls, ceilings or floors. Tenant shall at all times
maintain the interior of the Building in a state of good repair and in a neat,
clean and serviceable condition to the extent that Landlord is not obligated
to do so hereunder. Landlord shall have the right to enter the Building for
the purposes of showing the Building to prospective purchasers and/or lenders,
responding to emergencies and effecting necessary repairs.
6. Assignment; Sublease Tenant shall not assign this Lease or
sublease the Building without Landlord prior written consent, which consent
shall not be unreasonably withheld.
7. Alterations and Liens Tenant shall not, without Landlord prior
written consent, make alterations, additions or improvements to the Building.
Tenant shall keep the Building and the land upon which the Building is
situated free and clear of any and all mechanics and materialmens liens
resulting from any and all such alterations, additions or improvements.
8. Loss, Damage and Injury Landlord shall not be liable to Tenant
or Tenant agents, employees, guests, invitees, or any person claiming by,
through or under Tenant, for any injury to person, loss or damage to property,
or for loss or damage to business, occasioned by or through the acts or
omissions of Landlord or any other person, or by any cause whatsoever, except
for any injury, loss or damage occasioned by Landlord gross negligence or
willful misconduct. To the extent that such liability has not been caused by
Landlord gross negligence or willful misconduct, and to the extent that such
liability is not indemnified by Landlord or Tenant policies of insurance,
Tenant shall indemnify Landlord from and against any liability arising from
Tenant use and/or occupancy of the Building.
9. Insurance Tenant shall, at Tenant expense, keep in full force
and effect during the term hereof a policy or policies of public liability and
property damage insurance with combined single limits of not less than $1
million. Said policy or policies shall name Landlord as an additional
insured, and shall insure Landlord contingent liability with respect to acts,
or omissions of Tenant. Said policy or policies shall be issued by an
insurance company or companies licensed to do business in the State of
California and shall require no less than thirty days prior written notice to
Landlord before the policy or policies be cancelled or amended. Tenant shall
deliver to Landlord a certificate evidencing such insurance within 10 days
after the execution of this Lease and withing 10 days after all renewals or
replacements of said insurance.
10. Holding Over If Tenant remains in possession of the Building
after the expiration of the term of this Lease, Tenant shall become a Tenant
from month to month upon the terms and conditions of this Lease, so far as
applicable, but at a monthly rental of $10,000, payable in advance. Said
month to month tenancy shall continue until terminated as provided by law.
11. Damage If the Building is damaged by fire or other casualty
covered by insurance, Landlord shall forthwith repair the same, provided such
repairs can be made within ninety working days from the date of such damage.
In such event, this Lease shall remain in full force and effect during the
period when such repairs are made, except that Tenant rent shall be equitably
adjusted during said period unless the damage is attributable to the negligent
or willful conduct of Tenant or Tenant officers, agents, contractors,
employees or invitees. If such repairs are not covered by insurance or cannot
be made within ninety working days from the date of such damage, Landlord
shall have the option to either: (1) repair or restore the Building, in which
case this Lease shall continue in full force and effect, but with the rent
equitably adjusted as provided above; or (2) terminate this Lease by so
notifying Tenant in writing within thirty working days after the date of
damage. The termination shall be effective upon the date specified in the
Landlord notice, which date shall be not less than thirty nor more than sixty
working days after the giving of said notice. Tenant hereby waives any
provisions of law automatically terminating this Lease or otherwise contrary
to the provisions of this paragraph in the event of damage to or destruction
of the premises.
12. Eminent Domain If all or any part of the Building is taken or
appropriated by any public or quasi-public authority under the power of
eminent domain, and such taking will substantially impair Tenant use of the
Building for more than ninety days, either party hereto may, at its option,
terminate this Lease. If Tenant terminates the Lease, Landlord shall be
entitled to, and Tenant upon demand of Landlord shall assign to Landlord, any
and all of Tenant rights in and to any and all income, rent, award, and/or
any interest therein whatsoever that may be awarded or paid in connection with
the taking or appropriation, and Tenant shall have no claim against Landlord
or the condemnor for the value of the unexpired term of this Lease. If a part
of the Building is taken or appropriated by eminent domain and neither party
terminates this Lease, the rent thereafter to be paid shall be equitably
adjusted.
13. Estoppel Certificates At any time and from time to time,
Tenant shall, upon Landlord request, promptly execute, acknowledge and
deliver to Landlord a statement: (1) certifying the date of commencement of
this Lease; (2) acknowledging that this Lease is unmodified and in full force
and effect (or if there have been modifications, that this Lease is in full
force and effect as modified and the date and nature of such modifications)
and the date to which the rent has been paid; and (3) setting forth such other
matters as may reasonably be requested by Landlord. Landlord and Tenant
intend that the statement or statements delivered pursuant to this paragraph
may be relied upon by any mortgagee, beneficiary of any Deed of Trust or by
any purchaser or prospective purchaser of the Building.
14. Waiver of Insurable Losses Landlord and Tenant intend that
the risks of loss, damage and injury arising from the occupancy and/or use of
the Building be allocated as far as possible to the parties respective
insurance policies. Accordingly, Landlord and Tenant each hereby waive any
and all claims, actions, demands and all rights of recovery against each
other, and hereby release each other from all liability therefor, to the
maximum extent permitted by law to the extent that such loss, damage or injury
is compensated by the parties respective insurance policies.
15. No Personal Liability Notwithstanding any other provision of
this Lease, the liability of Landlord with respect to any obligation shall be
limited to the interest of Landlord in the Building, and Tenant shall look
solely to such interest for the recovery of any judgment or award against
Landlord. Neither Landlord, nor any trustee, member, principal, partner,
shareholder, officer, agent, director or beneficiary thereof shall be
personally liable for any judgment or deficiency.
16. Attorneys Fees If either Landlord or Tenant commences an
action to interpret or enforce any provision of this Lease, the prevailing
party shall be entitled to recover its reasonable attorneys fees in addition
to all other remedies.
17. No Party is Drafter Landlord and Tenant each acknowledge that
this Lease has been fully and freely negotiated, and that no provision hereof
shall be interpreted against either party on the ground that such party is the
drafter thereof.
18. Entire Agreement This Lease constitutes the entire agreement
between the parties and supersedes all prior agreements and understandings,
whether written or oral, concerning the subject matter hereof. This Lease may
not be amended or otherwise modified except by a writing executed by both
parties.
19. Successors Subject to the restrictions on Tenant right to
assign this Lease or to sublease as set forth in Paragraph 6, this Lease shall
be binding upon and inure to the benefit of all successors of the parties.
20. Notices All notices required to be given hereunder shall be
in writing and shall be deemed delivered: i) on the date of delivery if
delivered in person or transmitted by fax transmission and receipt thereof has
been acknowledged by the party to be notified or a duly authorized
representative thereof; ii) on the next business day if delivered by a
nationally recognized overnight courier service; or iii) on the third business
day after mailing if mailed by first class mail with postage fully prepaid
thereon to the last known address of the party to be notified.
21. Landlord Remedies and Applicable Law; No Waiver In the event
of a default by Tenant of any of Tenant obligations under this Lease,
Landlord shall have all rights and remedies available to it under the laws of
the State of California. In the event Landlord fails or refuses to exercise
its rights with respect to a default, said failure or refusal shall not
constitute or be deemed a waiver of any of Landlord rights with respect to
any subsequent default.
22. Severability If any provision of this Lease is determined by
a court of competent jurisdiction to be unenforceable, such determination
shall not affect any other provision, and all of such other provisions shall
remain in full force and effect.
23. Applicable Law This Lease and all provisions hereof shall be
interpreted and enforced in accordance with the law of the State of
California.
THE XXXXXXX X. XXXXX and XXXXXXXX X.
XXXXX TRUST
By: /s/ Xxxxxxx X. Xxxxx, Trustee
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Xxxxxxx X. Xxxxx, Trustee
By: /s/ Xxxxxxxx X. Xxxxx, Trustee
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Xxxxxxxx X. Xxxxx, Trustee
Landlord
COMPUTERIZED THERMAL IMAGING, INC.,
a Nevada corporation
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
President and Chief Executive Officer
Tenant
