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EXHIBIT 10.32
LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") is made and entered into this 22nd
day of May, 2000, to be effective October 1, 2000, by and between NP#2, LLC, a
Utah limited liability company, hereinafter referred to as the "Landlord", and
IOMED, Inc., a Utah corporation, hereinafter referred to as the "Tenant":
W I T N E S S E T H
ARTICLE 1 PREMISES AND TERM
Effective October 1, 2000, 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 located at 0000 Xxxxx 0000 Xxxx, Xxxx Xxxxxx
Xxxx, Xxxx, and described on Exhibit "B" attached hereto, consisting of
approximately 34,000 square feet of office/production/warehouse space, (the
"Demised Premises"), situated in the building erected on the property described
on Exhibit "A" attached hereto, 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 lease term
commencing as of October 1, 2000 and continuing thereafter to and including the
date April 30, 2006. This Lease is entered into in contemplation of Article 32
hereinbelow.
ARTICLE 2 CONSTRUCTION OF IMPROVEMENTS
Landlord has, at Landlord's sole cost and expense, constructed a
building and other improvements, containing the Demised Premises. Tenant has
advised Landlord that Tenant will require certain modifications to the Demised
Premises prior to October 1, 2000. Notwithstanding the need for certain
modifications to the Demised Premises, Tenant hereby leases the Demised Premises
in its current condition and repair without such modifications having first been
made. As of the execution of this Lease, Tenant and Landlord have only discussed
the conceptual changes required for Tenant's use of the Demised Premises and no
plans or specifications have been prepared. Landlord hereby agrees to fund up to
$100,000 of the cost of such modifications to the Demised Premises (the
"Landlord Contribution"). Any cost exceeding Landlord's Contribution shall be
the sole and exclusive responsibility of Tenant. Such Landlord Contribution
shall be amortized and repaid by Tenant over the term of the Lease at an
implicit interest rate of 10.5%. Tenant agrees to arrange for the preparation of
plans and specifications for Tenant's required improvements to the Demised
Premises. At Tenant's request, Landlord agrees to cooperate with Tenant in
Tenant's preparation of plans and
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specifications by providing to Tenant copies of the plans and specifications for
the existing Demised Premises and providing general information concerning the
Demised Premises that may be reasonably necessary for Tenant in the preparation
of the plans and specifications. Upon completion of the plans and specifications
for Tenant (the "Tenant Plans and Specifications") Landlord agrees to submit to
Tenant a good faith bid for completion of the work (the "Work") contemplated by
the Tenant Plans and Specifications. Tenant and Landlord understand and agree
that no representations have been made concerning the contemplated cost of the
Work contemplated by the Tenant Plans and Specifications. Landlord and Tenant
further agree that they shall have no obligation to enter into a contract for
the performance of the Work according to terms which are not mutually acceptable
to Landlord and Tenant. If Landlord and Tenant reach agreement for the
performance of the Work by Landlord or its representative, a construction
contract for the performance of such work will be entered into by Landlord and
Tenant. If Tenant chooses to retain someone other than Landlord to complete the
Work, (i) Tenant shall indemnify Landlord for damage to the Demised Premises
caused from or arising during the construction of the Work by a third party; and
(ii) Landlord agrees to reasonably cooperate with Tenant in the performance of
the Work by such third party and (iii) Landlord agrees to provide reasonable
access to the Demised Premises and logistical and physical accommodation for the
performance of such Work, including but not limited to providing access to
Tenant and to third parties for Tenant's installation and testing of production
equipment, process validation and Tenant's relocation to the Demised Premises.
ARTICLE 3 OBLIGATIONS OF TENANT AND LANDLORD
3.1 Real Property Taxes. Tenant shall pay, within ten (10)
business 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 in which the Demised Premises
is located. Tenant shall pay one-twelfth (1/12) of Tenant's proportionate share
of the estimated annual taxes in advance each month in addition 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)
business 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.)
3.2 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 term of this 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
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transfer tax of the Landlord, or any income, profits or revenue tax upon the
income of the Landlord; provided, however, that in any case where a tax may be
levied, assessed or imposed upon 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 that
constitutes an income tax, or to pay an amount greater than that which would be
payable if the Demised Premises were the only asset of the Landlord.
3.3 Tenant's 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 $1,000,000 in respect to injury or death to a single
person, and to the limit of not less than $2,000,000 in respect to any one
accident, and to the limit of not less than $250,000 in respect to property
damage or a combined single limit policy not less than $2,000,000 per
occurrence. All policies shall name Landlord and the mortgagee of the property
as an additional named insured, as their interest may appear. The initial
mortgagee shall be State Farm Life Insurance Company.
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 policy 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.
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, except ten
(10) business days written notice for non-payment of premium.
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.
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3.4 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 mortgagee (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 therefore within ten (10) business days from the date Landlord
submits to Tenant a statement setting forth the amount due Landlord under the
provisions of this paragraph. Tenant agrees that it will not at any time, during
the term of this Lease, carry any stock of goods or do anything in or about the
demised Premises which will in any way tend to increase the insurance rates upon
the building of which the Demised Premises are a part. In addition to Tenant's
proportionate share of the costs of insurance premiums as described herein,
Tenant agrees to pay to Landlord forthwith upon demand the amount of any
increase in premiums for insurance against loss by fire that may be charged
during the term of this Lease on the amount of insurance to be carried by
Landlord on the building of which the Demised Premises are a part resulting from
the foregoing or from Tenant doing any act in or about said Demised Premises
which does so increase the insurance rates, whether or not the Landlord shall
have consented to such act on the part of Tenant. If Tenant installs upon the
Demised Premises any electrical equipment which constitutes an overload on the
electrical lines of the Demised Premises, Tenant shall at its own expense make
whatever changes are necessary to comply with the requirements of the insurance
underwriters, nothing herein contained shall be deemed to constitute Landlord's
consent to such overloading. 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.)
3.5 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 unless Landlord and/or any other tenants of the building are deemed
negligent. 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.
3.6 Assumption of Risk. Anything herein to the contrary
notwithstanding, after the commencement of the term as provided in Article 1,
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,
provided such loss is not caused by the negligence of Landlord or its agents.
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
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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 4 TENANT'S USE
The Tenant may use the Demised Premises for conducting its
research, development and light manufacturing 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. Except as contemplated in Article 2 hereof, Tenant shall make no
alteration or addition to the Demised Premises without the prior written consent
of Landlord.
Tenant represents to Landlord that neither Tenant nor 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 and
Property.
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 in connection with Tenant's 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" as
defined in 40 C.F.R. 755 et seq. (or in either case analogous regulations
promulgated under the Toxic Substances Control Act, as
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amended), iii) "asbestos" as defined in 29 C.F.R. 1910.1001 et seq. (or
analogous regulations promulgated under the Occupational Safety and Health Act
of 1970, as amended), and (iv) waste oils and other petroleum hydrocarbon
compounds.
In the event Tenant's business, or use of the Demised Premises,
should require the legal storing of barrels, drums and other storage containers,
Tenant covenants with Landlord to maintain all records required by applicable
local, state and federal regulators with respect to such materials and to
provide Landlord with a copy of such records.
Additionally, Tenant shall supply Landlord with a container and
contents disposal plan reasonably acceptable to Landlord or in the alternative,
a bond payable to Landlord to fund the disposal and discardment of all chemicals
and/or storage containers located on or about the Demised Premises. Said bond
shall be used by Landlord in the event Tenant fails to properly dispose of such
containers and chemicals.
Tenant covenants with Landlord to store all chemical containers
in a safe and secure manner either inside the Demised Premises or within a
secured fenced area, so as not to cause a nuisance to Landlord and other tenants
in the proximity of the Demised Premises, and to prevent the unlawful
infiltration of chemicals and container discardment by others under the control
of Tenant.
ARTICLE 5 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 also 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, 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 6 RENT
6.1 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 term of this Lease without right of offset or deduction, the sum of:
10/01/00 - 12/31/01 $376,995.00/15 months - $25,133.00/month Net/Net/Net
1/01/02 - 12/31/02 $309,132.00/year - $25,761.00/month Net/Net/Net
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1/01/03 - 12/31/03 $316,860.00/year - $26,405.00/month Net/Net/Net
1/01/04 - 12/31/04 $324,792.00/year - $27,066.00/month Net/Net/Net
1/01/05 - 12/31/05 $332,904.00/year - $27,742.00/month Net/Net/Net
1/01/06-4/30/06 $113,744/4 months - $28,436.00/month Net/Net/Net
Minimum rental shall be payable monthly, in advance, without
demand on the first day of each calendar month throughout the Lease term.
Landlord and Tenant understand and agree that the foregoing minimum rental
schedule is fixed and not subject to any adjustment, but is intended to reflect
rental increases based upon their current expectations regarding inflation
during the term of this Lease.
6.2 Late Penalty. Tenant shall be charged a five percent (5%)
late fee on all rental payments (minimum and/or additional) which are received
by Landlord more than ten (10) business days after their due date. Such late fee
shall compensate Landlord for i) the costs attributable to providing notice of
delinquency; and ii) the expense of servicing the mortgage loan on Landlord's
Building from alternative funds. In addition, any rental payments which are not
paid within twenty (20) business days of their due date shall bear interest
thereafter at the rate of one and one-half percent (1-1/2%) per month, or the
highest rate permitted by law, whichever is lower, until paid.
ARTICLE 7 SIGNS
With the prior written approval of Landlord, which approval
shall not be unreasonably 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 Great Lakes 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.
Upon the expiration or termination of the lease, the Tenant
shall remove all signage installed by Tenant and repair any damaged areas on the
building or Demised Premises caused thereby, to a condition acceptable to the
Landlord.
ARTICLE 8 ALTERATIONS AND IMPROVEMENTS
Tenant shall have the right, subject to Landlord's prior written
approval, which approval shall not be unreasonably withheld to, to make
non-structural alterations, additions, or improvements (hereinafter collectively
referred to as "improvements") to the interior of the
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Demised Premises. Said improvements and additions shall be accomplished at
Tenant's sole cost and expense and shall be made in compliance with all building
codes and ordinances, laws, and regulations applicable to the Demised Premises.
Tenant shall cause all improvements to be accomplished in a good workmanlike
manner using the same quality and finish to match existing. Upon the expiration
of the term of this Lease, Tenant shall have no obligation to remove any of the
improvements approved by Landlord.
Tenant shall keep the Premises free from any liens arising out
of any work performed, material furnished or obligation incurred by or for
Tenant or any person or entity claiming through or under Tenant. In the event
that Tenant shall not, within thirty (30) days following the imposition of any
such lien, cause the same to be released by payment or posting of a bond,
Landlord shall have the right, but not the obligation, to cause such lien to be
released by such means as Landlord deems proper, including payment of the claim
giving rise to such lien. All such sums paid and all expenses incurred by
Landlord in connection therewith shall be due and payable to Landlord by Tenant
as additional rent within fifteen (15) business days of Tenant's receipt of
Landlord's invoice.
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 Landlord shall
remain 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 trade fixture Lessors, 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 to remove any and all of its trade fixtures which it may have
stored or installed in the Demised Premises. Tenant and Landlord agree that
Tenant's trade fixtures shall include, without limitation, Tenant's equipment
and machinery, any cabinetry installed by Tenant, a clean room installed by
Tenant and any heating, cooling and other environmental control systems
installed by Tenant. 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. Tenant shall be required, at the expiration or termination of this Lease
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. Tenant will
repair all damage to the Demised Premises occasioned by such trade fixture
removal. If Tenant shall holdover beyond lease expiration or lease termination,
with Landlord's approval of such holdover, for removal of fixtures and equipment
(not to exceed ten (10) business days), Tenant shall pay to the Landlord as
rental therefore, a sum equal to the prorata portion of the previous monthly
rental thereof. In the event Tenant has not completed the removal of its
fixtures and equipment and restoration of the Premises caused thereby, within
the ten (10) day period following the expiration or termination of the lease,
Landlord shall, in Tenant's behalf and at Tenant's sole and exclusive expense,
cause such fixtures and equipment to be removed and the Premises to be restored.
Upon completion, the cost of said removal and restoration, plus twenty percent
(20%) for overhead and profit, including prorated rental for the period of time
required to accomplish such, shall be passed on to Tenant for Tenant's payment
to Landlord.
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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. The natural gas and electrical
utilities are separately metered. In the event that one or more of such
utilities or related services (water, sewer) shall be supplied to the Demised
Premises and to one or more other Tenants within the 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 discontinued for any reason
whatsoever, except for Landlord's negligence, Landlord shall not be liable
therefore 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 temporary 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 or any
extension or renewal thereof, the foundations, and structural support portions
of the building and improvements in which the Demised Premises are located,
including the structural portions of the roof, 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 therefore. All other maintenance and repair including,
but not limited to, painting of walls, and maintenance, repair and replacement
of equipment, shall be the responsibility of the Tenant. Any repairs or
maintenance required to the roof membrane, or any repainting of the exterior
walls, shall be accomplished by the Landlord and reimbursed by the Tenant as a
common area maintenance expense as further defined herein.
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) business 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
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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 one hundred eighty (180) days will be required
to repair or rebuild the Demised Premises, both Landlord and Tenant shall have
the right to terminate this Lease upon written notice to the other within thirty
(30) days of the occurrence at which time this Lease 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, which causes any unreasonable disruption in
Tenant's business operations, this Lease may be terminated at Tenant's option.
In any 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 entitled to receive an award or compensation therefore 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 following ten (10) business days prior written
notice from Landlord, or in the event Tenant shall vacate or abandon the Demised
Premises, or in the event Tenant, 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 process of law; or Landlord, at its
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
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account of the Tenant, upon as favorable terms and conditions as may be
available in the market. 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 Key Bank of Utah 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 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) business 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)
business 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 Key
Bank of Utah, 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 QUIET ENJOYMENT
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, shall
and may peaceably and quietly hold and enjoy the Demised Premises for the term
of this Lease. Tenant understands that other persons and entities conduct
businesses 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 non-compliance or default by the other party
with respect to any of the terms
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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 NOTICES
Any notices or demand required or permitted to be given under
this Lease shall be deemed to have been properly 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: NP#2, LLC
c/o S-PM, Inc.
00 Xxxx 0000 Xxxxx, Xxxxx 000
Xxxxxxx, Xxxx 00000
000-000-0000
TO THE TENANT AT: IOMED, Inc.
2441 South 0000 Xxxx, Xxxxx X
Xxxx Xxxxxx Xxxx, Xxxx 00000
000-000-0000
Such addresses may be changed from time to time by either party by serving
notices as provided above.
ARTICLE 20 SUBORDINATION
This Lease shall be subject and subordinate to all mortgages or
trust deeds which
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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 reasonably desired by the
holders of said mortgages or trust deeds provided that such instruments do not
amend this Lease.
ARTICLE 21 ASSIGNMENT AND SUBLEASING
With the specific prior written consent of Landlord first
obtained, Tenant can, at any time, 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.
Notwithstanding the foregoing, in the event of a sale or other disposition by
merger, consolidation or otherwise of all or substantially all of the
outstanding stock or assets of Tenant shall not constitute an assignment or
sublease under this Lease, and in such event, Landlord's prior consent shall not
be required.
ARTICLE 22 SCOPE OF THE AGREEMENT
Except as contemplated by Article 2 and Article 32 of this
Agreement, this Lease shall be considered to be the only agreement between the
parties hereto concerning the subject matter hereof. All negotiations and oral
agreements acceptable to both parties regarding the subject matter hereof 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 Twenty Five Percent (l25%) of the monthly rental
for the last month of the primary Lease term or subsequent Lease renewal term.
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ARTICLE 25 PARKING
Landlord has provided to Tenant Drawing No. SCI, from Project
9702, prepared by Xxxxxxxxxxx Architect dated January 23, 1998 (the "Plat")
which Plat depicts adjacent parking for the non-exclusive use of Tenant.
Landlord represents and warrants that the parking available to Tenant at the
Demised Premises comprises at least one hundred (100) parking stalls, five (5)
of which shall be marked for Tenants visitors and guests. Landlord further
represents and warrants that based upon Tenant's contemplated use of the Demised
Premises, the parking for the development is sufficient in number to satisfy any
applicable local governmental parking, land use and zoning ordinances and
regulations applicable to the Demised Premises. Maintenance of such parking
areas shall remain under the control of Landlord (subject to reimbursement of
common area maintenance 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 regulations Tenant covenants to comply.
ARTICLE 00 XXXXX XXXXX XXXXXXXX XXXX DEVELOPMENT
The parties acknowledge that the Plat contains the site plan for
Landlord's Great Lakes Business Park (hereinafter referred to as 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 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 within the outer property lines of the Development as
delineated on the Plat attached hereto marked Exhibit "A", 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. Said Common Areas shall be available for the common
use of all Landlord's Tenants in the Development, their employees, customers and
invitees. Subject to Article 25 hereof, and provided that Tenant is provided
reasonable access to the Demised Premises, 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
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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, replacements 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 including the Common Areas, any real estate
tax and/or tax consultant expense incurred for the purpose of maintaining
equitable tax assessments on the Development, all property taxes or assessments
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:
(i) 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
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shall pay Landlord in advance on the first day of each calendar month during the
term of this Lease an estimated and adjustable amount covering Tenant's
proportionate share of common area services and expenses, which amount 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. (See Lease
Rider "A" Building Expenses attached hereto and incorporated herein.)
(ii) 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) l. 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) business 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) l. 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 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 as of the commencement of
each calendar year.
There shall be 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 be 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).
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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 as of the commencement of each calendar year, exclusive
of the area occupied and maintained by others.
ARTICLE 29 SECURITY DEPOSIT
The security deposit held by Landlord shall be held 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 of its obligations under the Lease.
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 ESTOPPEL CERTIFICATE
Within ten (10) business days after request therefore by
Landlord, or in the event that upon any sale, assignment or hypothecation of the
demised premises and/or the land thereunder by Landlord, an estoppel statement
shall be required from Tenant. Tenant agrees to deliver to any proposed
mortgagee or purchaser, or to Landlord, in recordable form a certificate
certifying (if such be the case) that this Lease is in full force and effect and
that there are not defenses or offsets thereto, or stating those claimed by
Tenant.
ARTICLE 32 TERMINATION OF WORLD WIRELESS COMMUNICATION, INC. LEASE
This Lease is hereby executed upon the termination of a specific
Lease dated July
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29, 1998, covering the Demised Premises between Landlord and World Wireless
Communications, Inc., a Nevada corporation. The termination of the former lease
and subsequent consummation of this Lease between Landlord and IOMED, Inc., are
intended to take place simultaneously.
ARTICLE 33
Landlord and Tenant have previously entered into an Option to
Lease with respect to the Demised Premises. This Lease becomes effective as a
Lease only upon execution and delivery hereof by both Landlord to Tenant. This
Lease may be entered into in original counterparts, with the counterparts
together constituting one agreement. (See following page for signature blocks.)
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IN WITNESS WHEREOF, the Landlord and Tenant have duly executed this Lease on the
day and year first above written.
LANDLORD: NP#2, LLC
a Utah limited liability company
By
---------------------------------
X.X. Xxxxxx III
Member/Manager
TENANT: IOMED, Inc.
a Utah corporation
By
---------------------------------
Xxxxxx X. Xxxxxxx
Executive Vice President and CFO
Attached hereto and incorporated herein:
Lease Rider "A" - Building Expenses
Exhibit "A" - Plat
Exhibit "B" - Floor Plan
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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, Tenant hereby agrees to pay to Landlord commencing upon October 1,
2000, as additional monthly rental, Three Thousand Dollars ($3,000.00) to be
paid monthly in advance along with the monthly rental previously stated in Lease
ARTICLE 6. Minimum Rent. The above stated additional rental is an estimated and
adjustable fee for property tax, insurance expenses and common area service
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) business 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 ______
