LEASE AGREEMENT
THIS LEASE AGREEMENT, is executed in duplicate as of this 1st day of
September 1 1997, between XXXXXX PROPERTIES, INC., a Utah corporation
("Landlord"), and IOMED, INC., a Utah corporation ("Tenant").
WITNESSETH:
In consideration of the mutual covenants and agreements of the parties
hereinafter set forth, it is agreed as follows:
1. Leased Premises. Landlord has and does hereby lease to Tenant, the
entire premises, including all appurtenances and improvements located at
0000-0000 Xxxx 0000 Xxxxx, Xxxx Xxxx Xxxx, Xxxx, comprised of approximately
17,986.94 square feet of office, manufacturing, assembly and warehouse space,
for the term and upon the rental, conditions and covenants as the parties herein
set forth.
2. Term. The initial term of this lease shall be twenty-eight (28)
months, commencing September 1, 1997, and ending at midnight, December 31, 1999.
Tenant shall have the option to extend this lease for two (2) successive
one-year options (option periods) upon giving Landlord six months prior written
notice before each such exercise. All terms and conditions for the option
periods shall be the same as the initial term, as provided herein, except that
the rent for said option periods may be increased as set forth in paragraph 3
below.
3. Rent. Rent hereunder shall be payable as follows:
(a) Rent Over Initial Term: Tenant agrees to pay as rent to
Landlord the sum of Two Hundred Twenty-four Thousand Dollars ($224,000.00)
payable at the rate of Eight Thousand Dollars ($8,000.00) per month for the 28
months of the initial lease term;
(b) Base Rent Over Option Periods: Rent over each of the
option periods granted hereunder shall continue at the rate of Ninety-Six
Thousand Dollars ($96,000.00) per year, to which shall be added an amount equal
to the total sum (if any) by which real property taxes, assessments and yearly
premiums for insurance procured by Landlord under paragraph 16(a) of the Lease,
and payable by Landlord during the twelve months immediately preceding the
option period exceeds the total of such taxes, assessments and insurance paid by
Landlord during calendar year 1997. In no event, however, shall any single
annual increase during the option periods exceed Three Percent (3%) of the total
rent payable over the twelve months immediately preceding the effective option
period.)
(c) All rent shall be paid in legal tender of the United
States, deposited to the account of Xxxxxx Properties, Inc., at First Security
Bank of Utah, account no. 051-017-9856, or at such other place or by such other
method as Landlord may direct in writing. Each payment hereunder is due on the
first day of each calendar month of the term herein. Any payment received after
the 15th day of the month it is due shall bear and include interest at an annual
rate of 18% (as provided in paragraph 30 below), calculated from the 1st day of
said month.
4. Authorized Uses. Tenant shall use the leased premises to conduct
business in medical and consumer product research, development and
manufacturing, and for no other purposes without the written consent of Landlord
first being had and obtained, which consent shall not be unreasonably withheld
or delayed. All such use shall be subject to restrictions of applicable zoning
ordinances and restrictions and all relevant codes, laws and statutes.
5. Prohibited Uses. Tenant will not keep, use or sell, or allow to be
kept, used or sold in or about the leased premises, any article or material
which is prohibited by law or which would render the fire insurance policies in
force with respect to the premises void or voidable. Tenant will further
strictly observe all environmental laws and regulations, together with all other
laws and regulations governing the storage of toxic substances and will not
dispose of such substances on or near the leased premises.
6. Repair and Care of Building.
(a) Tenant will not commit any waste of the demised premises,
nor shall it use or permit the use of the premises in violation of any present
or future law of the United States or of the State of Utah, or in violation of
any municipal ordinance or regulation applicable thereto.
(b) Tenant agrees to keep and maintain the interior and
exterior of the building and all the improvements on the premises and the
grounds, including sprinklers, landscaping and asphalt surfacing, in good
condition and repair, and, at its cost, to effect any necessary repairs to the
electrical wiring, heating, ventilation, air conditioning and plumbing systems,
and to clean and paint the interior and exterior of the leased premises as the
same may or might be necessary in order to maintain said premises in a clean,
attractive and sanitary condition. Tenant shall keep all driveways reasonably
free from ice and snow and shall maintain all lawns and landscaping, except as
hereinafter expressly set forth. Any alterations or improvements to the leased
premises shall become the property of Landlord at the expiration or sooner
termination of the lease, except as herein otherwise provided.
(c) Tenant agrees to repair all damage to the premises,
including any damage to foundation, roof or structure, resulting from acts of
the Tenant or Tenant's representatives. Except for Tenants maintenance
obligations contained in paragraphs 6(b) and 6(c), Landlord agrees to maintain
the structure and foundation of the building in good condition and repair.
Tenant shall promptly notify Landlord of any repairs to structure or foundation
arising from other than acts of Tenant or Tenant's representatives and which
Tenant believes are necessary. Landlord, at its discretion, and from time to
time as it receives notice of needed repairs within the scope of its obligation
as Landlord, may request and authorize Tenant to obtain bids and to contract
directly for any such necessary repairs and to credit the cost of such repairs
against lease payments due hereunder. Absent such specific authorization,
however, or unless otherwise agreed in writing, Tenant shall have no authority
to undertake repairs for or on behalf of Landlord or to otherwise credit lease
payments for the costs of any repairs.
(d) Landlord and Tenant acknowledge that the roof on the
premises is approaching the end of its serviceable period and that Landlord has
contracted to replace the roof prior to or shortly after the commencement of the
initial lease term hereunder. Until such time as the roof is replaced, Landlord
agrees to undertake responsibility for repair and maintenance thereof as
outlined in subparagraph (e) above, and Tenant agrees to keep Landlord
reasonably advised, in writing, of the condition of the roof and to allow
representatives of Landlord reasonable access thereto, for purposes of
inspection and repair, as necessary. Tenant assumes responsibility for all roof
maintenance, consistent with the provisions of subparagraph (c) above, from and
after the date of installation and final acceptance of a new roof.
7. Erection of Partitions, Fixtures and Other Appurtenances;
Alterations and Construction.
(a) Tenant shall have the right to erect at Tenant's sole cost
and expense such temporary partitions, including office partitions, and to alter
existing partitions and to erect shelves, bins, fixtures, machinery, electrical
fixtures, additional lights and wiring and other trade appliances, all as may be
necessary to facilitate the handling of Tenants business. With the exception of
open office modules, movable partitions, tools, machinery, specialized
environmental control systems, deionized water systems, specialty production and
plumbing fixtures and other specialty manufacturing fixtures, any such
partitions or fixtures installed by Tenant shall remain with the leased premises
and become the property of Landlord upon expiration of the lease. Damage caused
by removal of tools and machinery shall be repaired by Tenant so as to return
the premises to the condition and configuration existing before installation of
said fixtures.
(b) Tenant, at its own cost or expense, may make such
additional alterations in the budding as Tenant may reasonably require to
conduct its business, subject to the following conditions: (i) no such
improvements may materially alter the basic character of the building or
existing improvements or weaken any structure of the premises; (ii) all such
construction shall be done in a good and workmanlike manner and in accordance
with plans and specifications having the prior written approval of Landlord,
which consent shall not be unreasonably withheld; (iii) all such construction
shall be done free of any liens for labor or materials; and (iv) Tenant shall
indemnify, save and hold Landlord harmless from, and defend Landlord against,
any loss, liability, damage or lien resulting from such construction.
8. Erection and Removal of Signs. Tenant shall have the nonexclusive
right to place suitable signs on the leased premises in areas designated by
Landlord for the purpose of identifying Tenant or otherwise indicating the
nature of the business carried on by the Tenant in said premises; provided,
however, that such signs and their locations shall be in keeping with other
signs in the district where the leased premises are located, and shall be
subject to the prior approval of Landlord, which shall not be unreasonably
withheld. Damage to the leased premises caused by the removal of such signs
shall be repaired by Tenant.
9. Glass. Tenant agrees to replace all glass broken or damaged during
the term of its lease with glass of the same quality as that broken or damaged.
10. Right of Entry by Landlord. Tenant at any time during the term of
this lease shall permit inspection of the demised premises during normal
business hours by Landlord or Landlord's agents or representatives for the
purpose of ascertaining the condition of the demised premises. One Hundred
Eighty (180) days prior to the expiration of this lease, Landlord may post
suitable notice on the demised premises that the same are "for sale" or are "for
rent or lease" and may show the premises to prospective tenants or purchasers at
reasonable times. Landlord shall not, however, thereby unnecessarily interfere
with the use of the demised premises by Tenant.
11. Payment of Utilities. Tenant shall pay all charges for water, heat,
gas, sewer, electricity, telephone and any and all other utilities used on the
leased premises.
12. Payment of Taxes and Other Assessments. General real property taxes
and assessments on the leased property shall be paid by Landlord, in
consideration of the rent payable by Tenant hereunder. Tenant shall pay all
other taxes, assessments, license fees and charges incidental to the conduct of
Tenants business on the leased premises during the term of this lease, and any
extensions thereof, including any taxes assessed on Tenants personal property
situated on the premises, and shall preserve the leased premises free and clear
of any liens or charges attributable thereto; provided, however, that Tenant may
contest or dispute any such tax, or the amount thereof, upon providing
sufficient surety for the payment thereof.
13. Assignment and Subletting. Neither this lease nor any interest
herein may be assigned by Tenant voluntarily, involuntarily or by operation of
law, without the prior written consent of Landlord, and neither all nor any part
of the leased premises shall be sublet by Tenant without the prior written
consent of Landlord. However, Landlord agrees not to withhold or delay its
consent unreasonably. Landlord further agrees not to withhold or delay its
consent to an assignment if the proposed assignee's financial standing and
responsibility at the time of the proposed assignment is sufficient to give
Landlord reasonable assurance of the payment of all rents and other amounts
required under this lease, and of compliance with all of the terms, covenants,
provisions, and conditions hereof Upon such assignment Tenant shall be released
from all liability arising or accruing hereunder after the effective date of the
assignment, provided that the assignee shall execute, acknowledge and deliver to
Landlord an assumption agreement, in form and substance satisfactory to Landlord
in the good faith exercise of its reasonable judgment whereby such assignee
agrees to observe, perform, and keep all of the terms, provisions, covenants and
conditions required to be observed, performed and kept as tenant hereunder.
14. Damage, Destruction or Condemnation. If the demised premises or any
part thereof shall be damaged or destroyed by fire or other casualty, Landlord,
to the extent of available insurance proceeds, shall promptly repair all such
damage and restore the demised premises without expense to Tenant, subject to
delays due to adjustment of insurance claims, strikes and other causes beyond
Landlord's control. If such damage or destruction shall render the premises
untenantable in whole or in part, the rent shall be abated wholly or
proportionately as the case may be until the damage shall be repaired and the
premises restored, unless such damage or destruction shall have been caused or
actively contributed to by Tenant, its agents, servants, employees, invitees or
licensees, in which case the rent shall not be abated to any extent whatsoever.
If the damage or destruction shall be so extensive as to require the substantial
rebuilding (i.e., expenditure of fifty percent (50%) or more of replacement
cost) of the building or buildings on the demised premises, Landlord may elect
to terminate this lease by written notice to Tenant given within thirty (30)
days after the occurrence of such damage or destruction. If in the judgment of
Landlord such damage or destruction cannot be repaired and restored within
ninety (90) days from date of destruction, Tenant shall have the right to
terminate this lease upon written notice given within thirty (30) days following
such date of destruction, providing that, Tenant shall have no right of
termination if such damage or destruction has been caused or actively
contributed to by Tenant, its agents, servants, employees, invitees or
licensees. In the event of condemnation, by any governmental authority, of the
leased premises or such part thereof as shall substantially impair the ability
of Tenant to conduct its business, this lease and the obligations of the parties
hereto shall terminate as of the date of occupancy by such governmental
authority. All proceeds and awards of condemnation, whether received or judgment
of any court, shall be exclusively paid to and owned by Landlord, who shall have
the sole right to negotiate and conclude a settlement of the condemnation award
or to litigate such award, in its sole discretion, provided, however, that
Tenant shall be entitled to make claim in its own name to the condemning
authority for the value of loss of business (to the extent that it does not
reduce Landlord's award) and for the costs of relocating its business and of any
moveable furniture, items of personal property, and other items belonging to
Tenant that can be removed from the premises without in anyway altering or
damaging the lease premises.
15. Injuries and Property Damage. Tenant agrees to indemnify, hold
harmless and defend Landlord from any and all claims of any kind or nature
arising from Tenant's use of the demised premises during the ten-n hereof,
except for such claims that may arise by virtue of the acts of Landlord, its
agents or contractors, and Tenant hereby waives all claims against Landlord for
damages to goods, wares or merchandise or for injury to persons in and upon the
premises from any cause whatsoever, except such as might result from the
negligence of Landlord to perform its obligations hereunder within a reasonable
time after notice in writing by Tenant requiring such performance by Landlord.
16. Insurance.
(a) Landlord shall procure and keep in force fire and extended
coverage insurance insuring Landlord and Tenant against loss of, or damage to,
the building or other improvements on the demised premises, such insurance shall
be equivalent to the replacement value of the building on the date of this lease
as is agreed. The agreed value of the building for these purposes and as of the
date hereof, is $775,000, exclusive of the land. Said policy shall include an
endorsement or term requiring the amount of such insurance to be increased on a
regular basis to maintain the insurance in an amount equal to the value of the
building.
(b) Tenant shall procure and keep in force insurance against
loss of or damage to Tenant's improvements or betterments, trade fixtures,
furnishings, equipment, machinery, inventory and contents, which is caused by
fire and other casualties, Such insurance shall be underwritten by a responsible
insurance company or companies qualified to do business in the State of Utah and
such insurance shall be in an amount equal to the full replacement value of such
building and other improvements. Such insurance shall cover: (1) loss or damage
by fire; (2) loss or damage arising from the normal extended coverage perils
which presently are windstorm, hail, explosion, riot, riot attending a strike,
civil commotion, aircraft, vehicles and smoke; (3) loss or damage arising from
vandalism and malicious mischief, and (4) if the premises contain a fire
sprinkler system, damage resulting from sprinkler leakage or malfunction.
Landlord (and, at Landlord's option, the lender interested under any mortgage or
similar instrument then affecting the demised premises) shall be named as an
insured on each such policy. The proceeds of insurance in case of loss or damage
to the demised premises shall be paid to Landlord to be applied on account of
the obligations of Landlord to repair and/or rebuild the Premises pursuant to
Section 14 hereunder. Tenant shall pay one-twelfth of the cost of insurance
purchased by Landlord each month with its rental payment.
(c) Tenant agrees to secure and keep in force throughout the
lease term, at Tenant's own cost and expense, comprehensive general liability
insurance covering Tenant against death, bodily or personal injury or property
damage in the combined single limit amount of at least Five Hundred Thousand
Dollars ($500,000.00). Such insurance coverage shall include a contractual
liability endorsement covering Tenant's obligations of indemnity for death,
bodily injury to persons and damage to property set forth in Section 15 hereof
and a personal injury endorsement covering such wrongful acts as false arrest,
false imprisonment, malicious prosecution and libel and slander. Tenant shall
require any contractor of Tenant performing work within the demised premises to
maintain workmen's compensation or similar insurance required by law and
comprehensive general liability insurance including contractor's liability
covering with broad form property damage endorsement.
All insurance for Tenant is responsible under this lease shall
be effected under enforceable policies issued by insurers either (i) approved by
Landlord, or (ii) having a key guide general policy holders' rating of "B+" or
above and a financial category rating of "Class XI" or above in the most recent
edition of "Best's Insurance Reports" and a copy of the policy or a certificate
of insurance shall be delivered to Landlord on or before the commencement date
of this lease. Each policy shall provide by its terms that it is noncancellable
except upon twenty (20) days prior written notice to Landlord. At least twenty
(20) days prior to the expiration date of any policy, the original renewal
policy, a binder for such insurance or an effective certificate of insurance,
shall be delivered by Tenant to Landlord evidencing compliance with the
provisions of this Section 16. All policies shall name Landlord, Landlord's
lender(s), and Tenant as insureds. All policies shall be written as primary
policies, not contributing with and not in excess of coverage which Landlord may
carry. All such policies shall contain a provision that Landlord, although named
as an insured, shall nevertheless be entitled to recover under such policies for
any loss occasioned to it, its servants, agents, and employees by reason of the
negligence of Tenant.
(e) Landlord hereby waives, and Tenant hereby waives, any
rights it may have against the other party on account of any loss or damage (i)
to the demised premises and its contents and (ii) arising from any risk
generally covered by fire and extended coverage insurance. Tenant and Landlord
shall obtain a clause or endorsement in the policies of such insurance which
Landlord and Tenant obtains in connection with the demised premises to the
effect that the insurer waives, or shall otherwise be denied, the right of
subrogation against the other party for loss covered by such insurance. It is
understood that such subrogation waivers may be operative only as long as such
waivers are available in the State of Utah and do not invalidate any such
policies. If such subrogation waivers are allegedly not operative in the State
of Utah notice of such fact shall be promptly given by Tenant to Landlord.
(f) Any mortgage lender interested in any part of the demised
premises may, at Landlord's option, be afforded coverage under any policy
required to be secured by Landlord or Tenant hereunder, by use of a named
mortgagee's endorsement to the policy concerned.
17. Surrender of Premises. Tenant agrees to surrender up the leased
premises at the expiration, or sooner termination, of this lease, or any
extension thereof, in the same condition, or as altered pursuant to the
provisions of this lease, ordinary wear, tear and damage by the elements
excepted.
18. Quiet Enjoyment. If and so long as Tenant pays the rent reserved by
this lease and performs and observes all the covenants and provisions hereof,
Tenant shall quietly enjoy the demised premises, subject however, to the terms
of this lease, and Landlord will warrant and defend Tenant in the enjoyment and
peaceful possession of the demised premises throughout the term of this lease.
19. Waiver of Covenants or Conditions. It is agreed that the waiving of
any of the covenants or conditions of this lease agreement by either party shall
be limited to the particular instance and shall not be deemed to waive any other
breaches of such covenant, condition, or any provision herein contained.
20. Default (other than in Payment of Rent).
(a) If Tenant shall fail or otherwise default in the
fulfillment of any of the covenants and conditions hereof except default in
payment of rent Landlord may, at its option, after thirty (30) days' prior
written notice to Tenant, make performance for Tenant and for that purpose
advance such amounts as may be necessary. Any amounts so advanced or any expense
incurred or sum of money paid by Landlord by reason of the failure of Tenant to
comply with any covenant, agreement, obligation or provisions of this lease or
in defending any action to which Landlord may be subject by reason of any such
failure or any reason of this lease or in defending any action to which Landlord
may be subject by reason of any such failure or any reason of this lease, shall
be deemed to be additional rent for the leased premises and shall be due and
payable to Landlord on demand. The receipt by Landlord of any installment of
fixed rent or of any additional rent hereunder shall not be a waiver of any
other rent then due.
(b) If Tenant shall default in fulfillment of any of the
covenants or conditions of this lease (other than the covenants for the payment
of rent or other amounts) and any such default shall continue for a period of
thirty (30) days after notice, then Landlord may, at its option, terminate this
lease by giving Tenant notice of such termination and, thereupon, this lease
shall expire as fully and completely as if that day were the date definitely
fixed for the expiration of the term of this lease and Tenant shall then quit
and surrender the leased premises. If such default cannot be remedied within the
period of thirty (30) days by use of reasonable diligence, then such additional
time shall be granted as may be necessary, provided Tenant takes immediate
action on receipt of the notice and proceeds diligently to remedy the default.
21. Default in Rent, Insolvency of Tenant. If Tenant shall: (i) default
in the payment of the rent reserved hereunder, or any part thereof, or in making
any other payment therein provided for, and any such default shall continue for
a period of fifteen (15) days after the date when payable; (ii) abandon or
vacate the leased premises or any part thereof, (iii) be dispossessed therefrom
by or under any authority other than Landlord; (iv) file a voluntary petition in
bankruptcy; (v) be subjected to any petition to institute any involuntary
proceeding under any insolvency or bankruptcy act or a composition with
creditors or if a receiver or trustee shall be appointed for Tenant through
involuntary bankruptcy proceedings, including an attempted assumption of this
lease by said trustee under Xxxxxxx 000 xx Xxxxx 00, Xxxxxx Xxxxxx Code, which
condition is not abated or discharged by Tenant within sixty (60) days; or, (vi)
admit in writing its inability to pay its obligations generally as they become
due; or (vii) if the leasehold estate created hereby shall be taken on execution
or by any process of law and not abated, discharged or redeemed by Tenant within
sixty (60) days; or (viii) by word or action, indicate a clear intent not to
continue with performance of this lease; then Landlord may, at its option, take
any or all of the following actions, without further notice or demand of any
kind to Tenant, or to any guarantor of this lease, or to any other person:
(a) Landlord may immediately reenter and remove all persons
and property from the leased premises, storing such property in a
public place, warehouse, or elsewhere for the account of, and at the
risk of Tenant, all without service of notice or resort to legal
process (unless required by law) and without being deemed guilty of, or
liable in, trespass, forcible entry or in damages resulting from such
reentry and removal. No such reentry or taking possession of the leased
premises by Landlord shall be construed as an election on its part to
terminate this lease unless a written notice of such intention is given
by Landlord to Tenant. AR property of Tenant which is stored by
Landlord pursuant hereto may be redeemed by Tenant within thirty (30)
days after Landlord takes possession thereof upon payment to Landlord
in full of all obligations then due from Tenant to Landlord hereunder
and of all costs incurred by Landlord in moving such property and
providing such storage. If Tenant fails to redeem such property within
said thirty (30) day period, Landlord may sell such property in any
reasonable manner and shall apply the proceeds of such sale actually
collected first against the costs of moving, storage and sale and then
against any other obligation due from Tenant under this lease with any
remaining surplus being remitted to Tenant.
(b) Landlord may relet the leased premises or any portion
thereof at any time or from time to time and for such term or terms and
upon such conditions and at such rentals as are reasonably prudent
under the circumstances. Whether or not the leased premises, or any
portion thereof, are relet by Landlord, Tenant shall pay to Landlord
all amounts required to be paid by Tenant hereunder up to the date that
Landlord removes Tenant from the leased premises, and thereafter Tenant
shall pay to Landlord, until the end of the term, the amount of rent
and other amounts required to be paid by Tenant pursuant to this lease.
Such payments by Tenant shall be due at such times as are provided
elsewhere in this lease, and Landlord need not wait until the
termination of this lease, through expiration of the term or otherwise,
to recover such payments by legal action or in any other manner. If
Landlord relets the leased premises, or any portion thereof, such
reletting shall not relieve Tenant of any obligation hereunder, except
that Landlord shall apply the rent or other proceeds actually collected
by it as a result of such reletting (i) against the costs of removing
Tenant and its property, (ii) against the costs of reletting including
the cost of clean-up, repair or modification of the leased premises and
the fee of any realtor, (iii) against any amount due from Tenant
hereunder to the extent that such rent or other proceeds compensate
Landlord for the nonperformance of any obligation of Tenant hereunder
and (iv) any residue shall be held by Landlord and applied in payment
of future rent as such may become due and payable hereunder. Landlord
may execute any lease made pursuant hereto in its own name, and the
tenant thereunder shall be under no obligation to control or monitor
the application by Landlord of any rent or other proceeds paid to
Landlord thereunder nor shall Tenant have any right to collect any
portion of such rent or other proceeds. Landlord shall not by any
reentry or other act be deemed to have accepted any surrender by Tenant
of the leased premises, or any portion thereof or Tenants interest
therein, or be deemed to have otherwise terminated this lease, or to
have relieved Tenant of any obligation hereunder, unless Landlord shall
have given Tenant express written notice of Landlord's election to do
so. Notwithstanding any such reletting without termination, Landlord
may at any time thereafter elect to terminate this lease for any
previous breach by Tenant.
(c) Landlord may collect by suit or otherwise, without
reletting the leased premises, each installment of rent or other sum as
it becomes due hereunder, or enforce, by suit or otherwise, any other
covenant or obligation which is required to be performed by Tenant or
cure any default on behalf of Tenant and thereafter xxxx Tenant for the
reasonable costs so incurred.
(d) Landlord may terminate this lease by written notice to
Tenant. In the event of such termination, Tenant agrees to immediately
surrender possession of the leased premises. Such termination shall not
relieve Tenant of any obligation hereunder which has accrued prior to
the date of such termination and Landlord may recover from Tenant all
damages it has incurred by reason of Tenants breach, including the cost
of recovering the leased premises, reasonable attorneys' fees, and the
worth (or present value) at the time of such termination of the excess,
if any, of the amount of rent and charges equivalent to rent reserved
under this lease for the remainder of the stated term over the then
rental value of the leased premises for the remainder of the stated
term, all of which amounts shall be immediately due and payable from
Tenant to Landlord. The "worth or present value" shall be determined by
using an interest rate of ten percent (10%) per annum or the legal rate
permitted by law, whichever is lower. In determining the amount of rent
reserved under this lease subsequent to such termination, the rent
which would have been paid for each year of the unexpired term shall be
deemed to equal the average yearly minimum, percentage and additional
rents paid by Tenant hereunder from the commencement date to the time
of default.
22. Failure to Perform Covenant. Any failure on the part of either
party to this lease to perform any obligation hereunder, and any delay in doing
any act required hereby shall be excused if such failure or delay is caused by
any strike, lockout, governmental restriction or any other similar cause beyond
the control of the party so failing to perform, to the extent and for the period
that such cause continues, save and except that provisions of this paragraph
shall not excuse a nonpayment of rent or other sums on due date.
23. Time. Time is of the essence of this lease and every term, covenant
and condition herein contained.
24. Liens. Tenant agrees not to permit any lien for moneys owing by
Tenant to remain against the leased premises for a period of more than thirty
(30) days. Should any such lien be filed and not released or discharged within
that time, unless Tenant shall contest the same and provide sufficient surety
for the payment thereof Landlord may, at Landlord's option (but without any
obligation to do so), pay or discharge such lien and may likewise pay and
discharge any taxes, assessments or other charges against the leased premises
which Tenant is obligated hereunder to pay and which may or might become a hen
on said premises. Tenant agrees to repay any such sums so paid by Landlord upon
demand therefor, together with interest at the rate of eighteen percent (18%)
per annum from the date any such payment is made.
25. Notices. Any notice required or permitted to be given hereunder
shall be deemed sufficient, if given by a communication in writing, by United
States mail, postage prepaid, and addressed as follows:
If to Landlord, at the following address:
Xxxxxx Properties, Inc.
c/o Xxxxx X. Xxxxxxxxx, Esq.
Snow, Xxxxxxxxxxx & Xxxxxxxxx
00 Xxxxxxxx Xxxxx, Xxxxxxxx Floor P. 0. Xxx 00000
Xxxx Xxxx Xxxx, Xxxx 00000-0000
If to Tenant, at the following address:
IOMED, Inc.
Attn: Xxxxxx Xxxxxxx, Vice President
of Finance and CFO
0000 Xxxx 0000 Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
26. Rights of Successors and Assigns. The covenants and agreements
contained in the within lease shall apply to, inure to the benefit of, and be
binding upon the parties hereto and upon their respective successor in interest
and legal representatives, except as expressly otherwise provided hereinbefore.
27. Surrender of Premises. At the expiration of this lease, Tenant
shall surrender the leased premises in the same condition as existed on the
commencement date of this lease, approved alterations and reasonable wear and
tear excepted. Before surrendering the leased premises, Tenant shall remove all
of its personal property and trade fixtures and such alterations or additions to
the leased premises made by Tenant as may be specified for removal by Landlord,
and shall repair any damage caused by such property or the removal thereof and
shall leave the leased premises in a clean and orderly condition. If Tenant
fails to remove its personal property and fixtures on or prior to the expiration
date of this lease, Landlord may either (i) deem such to be abandoned in which
case it shall become the property of Landlord or (ii) remove and dispose of such
at Tenants expense. On or prior to the expiration date of this lease, Tenant
shall surrender to Landlord all keys to the leased premises.
28. Holding Over. Any holding over after the expiration of the term
hereof shall be construed to be a tenancy from month to month at the rents in
effect on such expiration date (prorated on a monthly basis) and on the other
terms and conditions herein set forth except for those which are inconsistent
with a month to month tenancy. Landlord reserves the right to adjust base rent
amounts payable monthly over the period of any such month-to-month tenancy, on
advance notice of not less than thirty (30) days.
29. Attorneys' Fees. If either party to this lease is required to
initiate or defend litigation in any way connected with this lease, the
prevailing party in such litigation in addition to any other relief which may be
granted, whether legal or equitable, shall be entitled to reasonable attorneys
fees. If either party to this lease is required to initiate or defend litigation
with a third party because of the violation by the other party of any term,
provision or obligation contained in this lease, then the party so litigating
shall be entitled to reasonable attorneys' fees from the other party to this
lease. Attorneys' fees shall include attorneys' fees on any appeal, and in
addition a party entitled to attorneys' fees shall also be entitled to all other
reasonable costs for investigating such action, taking depositions and the
discovery, travel, and all other necessary costs incurred in such litigation.
All fees due hereunder shall be paid whether or not any such litigation is
prosecuted to judgment.
30. Past Due Sums. If Tenant fails to pay, when the same is due and
payable, any rent or other sum required to be paid by it hereunder, such unpaid
amounts shall bear interest from the due date thereof to the date of payment at
the rate of one and one-half percent (1-1/2%) per month, for an annual rate of
eighteen percent (18%).
31. Governing Law; Venue. This lease shall be deemed to have been
executed in Salt Lake City, Utah, and the laws of the State of Utah shall govern
the validity, performance and enforcement of any obligation contained herein.
Should either party institute a legal suit or action for enforcement of any
obligation contained in this lease, it is agreed that the venue of such suit or
action shall be in the County of Salt Lake, State of Utah.
32. Accord and Satisfaction. No payment by Tenant or receipt by
Landlord of an amount less than is due hereunder shall be deemed to be other
than payment towards or on account of the earliest portion of the amount then
due, nor shall any endorsement or statement on any check or payment (or any
letter accompanying any check or payment) be deemed an "accord and satisfaction"
(or payment in full), and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such amount or pursue
any other remedy provided herein.
33. All Prior Agreements Superseded. This lease modifies and replaces,
as of August 1, 1993, all prior leases and agreements executed between the
parties hereto, which leases are void and unenforceable as of the first day of
the lease term hereunder.
IN WITNESS WHEREOF, the parties hereto caused these presents to be
executed the day and year first above written.
LANDLORD: TENANT:
XXXXXX PROPERTIES, INC. IOMED, INC.
By: /s/ X. X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxxx
Its Company Secretary Its Vice President & CFO
