1
EXHIBIT 10.4
THREE-PARTY AGREEMENT
THIS AGREEMENT, is made and executed as of the 31st day of October
1994, by and between UNIVERSITY OF IOWA RESEARCH PARK CORPORATION, an Iowa
corporation, hereinafter referred to as "RESEARCH," MYRIAD DEVELOPERS, L.C., an
Iowa limited liability company, hereinafter referred to as "MYRIAD," and
UROSURGE, INC., a Delaware corporation, hereinafter referred to as "UROSURGE"
WITNESSETH:
WHEREAS, Research has leased property from the Iowa State Board of
Regents for the development of a research park in Coralville, Iowa, which
consists of certain real estate located at the University's Oakdale Campus, and
WHEREAS, Research has entered into a certain Land Lease dated October
31, 1994, whereunder Research is the Lessor and Myriad is the Lessee with
respect to a portion of Lot 4, on the Oakdale Research Park Subdivision Final
Plat, and
WHEREAS, Myriad has entered into a certain Lease Agreement dated
October 31, 1994, whereunder Myriad is the Landlord and Urosurge is the Tenant
with respect to a portion of said Lot 4 the real estate which is the subject of
the lease between Research and Myriad, and
WHEREAS, the parties have agreed to enter into a certain agreement
which provides for the respective rights of the parties upon default by Myriad
under its Land Lease with Research.
IT IS, THEREFORE, AGREED BY AND BETWEEN THE PARTIES FOR GOOD AND
VALUABLE CONSIDERATION:
1. That Research acknowledges that it has reviewed the Lease
Agreement dated October 31, 1994, whereunder Myriad is the Landlord and Urosurge
is the Tenant, and Research hereby consents to the terms and conditions thereof
and hereby consents to the subleasing of the property by Myriad to Urosurge.
2. That in the event of any default by Myriad under its Land Lease
with Research, Research hereby agrees to give written notice thereof to
Urosurge and allow Urosurge to cure any of said defaults on behalf of Myriad,
within the terms provided therefor under the Land Lease. Any cost incurred by
Urosurge in curing Myriad's said defaults may be offset by Urosurge against its
obligations under the Lease Agreement with Myriad.
3. That any and all notices, requests, or communications given
hereunder shall be in writing and shall be delivered or mailed by first class
registered or certified mail, postage prepaid, with return receipt requested,
directed to the party at the following addresses:
2
-2-
TO: University of Iowa Research Park Corporation
Oakdale Campus
University of Iowa
Xxxx Xxxx, Xxxx 00000
Attention Director
TO: Myriad Developers, L.C.
0000 Xxxxxxx 00 X.X.
Xxxxx Xxxxxx, Xxxx 00000-0000
Attention Xxxxxx X. Xxxxxxx
and Xxxxxxx Xxxxxx
TO: Urosurge, Inc.
5. That this Agreement and the terms and conditions hereof shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors, assigns, and assignees, where permitted by this Agreement.
6. That this instrument constitutes the full and complete agreement
of the parties with respect to the subject matter hereof. All modifications,
amendments, or changes shall be in writing, to be effective, and shall be
executed by all parties.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
day, month, and year first above-written.
UNIVERSITY OF IOWA RESEARCH MYRIAD DEVELOPERS, X.X.
XXXX CORPORATION
By [SIG] By /s/ XXXXXXX X. XXXXXX
----------------------------- -----------------------------
Xxxxxxx X. Xxxxxx, Manager
RESEARCH MYRIAD
UROSURGE, INC.
By /s/ XXXXX X. XXXXXX
-----------------------------
Xxxxx X. Xxxxxx
UROSURGE
3
LEASE AGREEMENT
This Lease Agreement is made this 31st day of October 1994, between
MYRIAD DEVELOPERS, L.C., an Iowa limited liability company, (the "LANDLORD") and
UROSURGE, INC., a Delaware corporation, (the "TENANT").
Schedule
NAME OF TENANT: Urosurge, Inc.
LOCATION OF BUILDING: Oakdale Campus
Coralville, Iowa
LEGAL DESCRIPTION: Xxx 0, Xxxxxxx Xxxxxxxx Xxxx
TENANT'S USE OF BUILDING: Laboratory, offices and production
RENTABLE SQUARE FEET: 10,004
ANNUAL BASE RENT: $84,033.60 MONTHLY RENT: $7,002.80
RATE PER SQUARE FOOT PER YEAR: $8.40 subject to adjustment
TERM OF LEASE: Five years with one five-year option to
renew.
COMMENCEMENT DATE: Completion of construction.
TOTAL RENTABLE SQUARE FOOTAGE: 10,004
PROPORTIONATE SHARE OF TAXES: 100%
TAXES/BASE YEAR: Not applicable, Tenant pays all taxes.
REQUIRED DEPOSIT: None
PARKING: _____spaces surrounding the Building.
TERMINATION DATE OF LEASE: 5 years from commencement date.
LANDLORD -- MYRIAD DEVELOPERS, L.C.
an Iowa limited liability company
By Xxxxxxx X. Xxxxxx
------------------------------------
Manager
------------------------------------, Agent
TENANT -- UROSURGE, INC.
By Xxxxx X. Xxxxxx
------------------------------------
------------------------------------
4
-2-
1. LEASING AGREEMENT. Landlord hereby leases to Tenant, and Tenant
hereby leases the Building, from the Landlord for a term commencing on the
completion of construction of Landlord and Tenant's improvements as evidenced by
the issuance of a certificate of occupancy, and terminating five years from the
commencement date, unless sooner terminated or renewed according to the terms
hereof. The Building shall be occupied and used by the Tenant only for the uses
described herein.
2. USE OF BUILDING. The Building shall be occupied and used by the
Tenant only for those purposes and uses allowable hereunder. The Tenant's use,
and this Lease, are subject to the terms and conditions of a certain Land Lease
entered into on the 31st day of October 1994, by and between IOWA RESEARCH PARK
CORPORATION, as "Lessor" and MYRIAD, DEVELOPMENT, L.C., as "Lessee," a copy of
which is attached hereto, however, Tenant is not obligated to pay any sums
thereunder. The Tenant acknowledges that it has reviewed all provisions
contained therein, including those provisions applicable to the use of the
Building. The Tenant hereby acknowledges that the building will be used for the
following purposes: laboratory, administrative offices for research and
development, and light prototype manufacturing. Any changes in said use shall be
subject to and in compliance with the provisions hereof.
3. RENT. Tenant shall pay to Landlord at Landlord's office in the
City of Cedar Rapids, Iowa or to such other person or at such other place as
directed from time to time by notice to the Tenant from Landlord the annual base
rent as set forth in the Schedule in equal monthly installments as set forth in
the Schedule. Each monthly installment shall be payable in advance promptly on
the first day of each calendar month during the term of this Lease and shall
bear interest at the rate of 10 percent (10%) per annum from and after the 10th
day of the month if not then paid until the date when paid. If the term should
commence or terminate on a day other than the first day of the month, then the
rent for the first and last month shall be prorated for such fractional month.
All rent payable by Tenant hereunder shall be net to Landlord. All expenses and
obligations of every kind and nature whatsoever relating to the building, which
may arise or become due during the term of this Lease including, but not limited
to, taxes, utilities, insurance, and maintenance shall be paid by the Tenant and
Tenant shall indemnify and hold the Landlord harmless from said expenses. This
Lease is a net, net, net Lease and Landlord shall have no expenses associated
with the Building.
4. ADDITIONAL RENT AND TAXES. In addition to the base rent provided
for above and on the Schedule, the Tenant shall pay, as additional rent, all of
the real estate taxes prorated from the commencement date and all special
assessments due and payable during the lease term, and all prorated taxes. and
special assessments becoming payable after the termination of the Lease for
periods during the term of the Lease, which amounts shall be paid monthly with
the base rent. The Landlord shall notify the Tenant of any increases in taxes
during the term of this Lease. All other sums required to be paid by Tenant
hereunder shall be deemed additional rent.
5
-3-
5. Utilities. Landlord will furnish nonducted heating ventilation and
air conditioning, telephone, electric service and plumbing as described in
paragraph 19 hereof. Tenant will pay for all utility costs and charges during
the lease term.
6. Services. Tenant shall keep the leased Building clean, neat, and
shall provide its own janitor and cleaning services. Tenant will keep the
windows clean inside and out and keep the inner walls painted or washed to
maintain a neat appearance.
7. Parking. The Tenant for itself and its invitees and guests shall
have use of the space surrounding the Building which has been constructed by the
Landlord for parking purposes, subject to parking rights granted to tenants and
their invitees of other buildings within Xxx 0, Xxxxxxx Xxxxxxxx Xxxx. The
Tenant shall have the exclusive use of 6 parking spaces requested by Tenant.
8. Recording. Except for recording of a memorandum of this Lease
which may be accomplished only if approved by Landlord, nothing contained shall
empower Tenant to do any act which can, shall or may encumber the interest or
title of Landlord or its assignee in and to the ground or building.
9. Mortgage by Landlord. From time to time either before or after the
execution of this Lease and before the termination of the term thereof, Landlord
may execute a mortgage or trust deed in the nature of a mortgage of Landlord's
interest in the building. IN SUCH EVENT:
A. If requested by the mortgagee or trustee, Tenant will
subordinate its interest in this Lease to said mortgage or
trust deed and will execute such subordination agreement or
agreements as may be reasonably required by said mortgagee
or trustee, provided, however, that so long as Tenant shall
not be in default under this Lease, its right of possession
and enjoyment of the Building shall be and remain
undisturbed and unaffected by said mortgage or trust deed or
by any foreclosure proceedings thereunder, and any
subordination agreement executed pursuant to this paragraph
shall contain language specifically so providing.
B. Should such mortgage be foreclosed, the liability of the
mortgagee, trustee or purchaser at such foreclosure sale or
the liability of a subsequent owner designated as Landlord
under this Lease, shall exist only so long as such trustee,
mortgagee, purchaser or owner is the owner of the subject
real estate and such liability shall not continue or survive
after further transfer of ownership.
6
-4-
C. Landlord agrees promptly to notify Tenant of the placing of
any mortgage or trust deed against the leasehold estate of
which the Building forms a part and Tenant agrees in the
event of any act or omission by Landlord which would give
Tenant the right to terminate this Lease or to claim a
partial or total eviction, Tenant shall not exercise any
such right (i) until it has notified in writing the holder
of any mortgage which at the time shall be a lien on the
Building, if the name and address of such holder shall
previously have been furnished by written notice to Tenant,
of such act or omission, and (ii) until a reasonable period,
not exceeding thirty (30) days, for commencing the remedying
of such act or omission shall have lapsed following the
giving of such notice, and (iii) such holder, with
reasonable diligence shall not have so commenced and
continued to remedy such act or omission or to cause the
same to be remedied. During the period between the giving of
such notice and the remedying of such act or omission, the
rental herein recited shall be abated and apportioned to the
extent that any part of the Building shall be untenantable.
D. If such mortgage be foreclosed, upon request of the
mortgagee or trustee, Tenant will attorn to the purchaser at
any foreclosure sale thereunder and will execute such
instruments as may be necessary or appropriate to evidence
such attornment. Likewise Tenant will attorn to the
leasehold mortgagee in the event said leasehold mortgagee
should ever become the owner of the leasehold estate covered
by its mortgage or should become the owner of any new lease
in replacement or substitution of such leasehold estate.
10. Certain Rights Reserved to the Landlord. The Landlord preserves
the following rights:
A. Occupancy. During the last one hundred twenty (120) days of
the term of this Lease, if during or prior to that time the
Tenant vacates the Building, to decorate, remodel, repair,
alter or otherwise prepare the Building for reoccupancy.
B. Pass keys. To have pass keys to the Building for access to
the Building in the event of
7
-5-
emergencies requiring Landlord's action to prevent or
limit damages to the Building.
C. Access for Inspections. To have access for the purpose of
inspecting the condition of the Building, at convenient
times and with reasonable advance notice provided to Tenant.
D. Show Building. To show the Building to prospective tenants
or brokers during the last 120 days of the term of this
Lease as extended, and to prospective purchasers at all
reasonable times provided prior notice is given to Tenant in
each case and the Tenant's use and occupancy of the Building
shall not be materially inconvenienced by any such action of
the Landlord.
E. Heavy Equipment. To approve the weight, size and location of
safes or heavy equipment of articles which articles may be
moved, in, about, or out of the Building only at such times
and in such manner as Landlord shall approve and, in all
events, however, at Tenant's sole risk and responsibility.
The Landlord may enter the Building and may exercise any or all of
the foregoing rights hereby reserved without being deemed guilty of an eviction
or disturbance of the Tenant's use or possession and without being liable in any
manner to the Tenant.
11. Liability Claims. Tenant waives all claims it may have against
Landlord, its agents or Employees or damage to person or property sustained by
Tenant or any occupant or other person resulting from any cause, except if
caused by the negligence of the Landlord, its agents or employees.
Tenant shall carry fire and extended coverage insurance insuring the
full replacement value of the building and the Tenant improvements in the
Building and its interest in its furniture, equipment, and supplies, and Tenant
shall waive any rights of action against Landlord for loss or damage covered by
such insurance, and the policies shall permit such waiver.
Tenant will secure and maintain general liability insurance naming
the Tenant and Landlord as insureds from financially responsible insurance
companies. If Tenant occupies space in which there is exterior plate glass, then
Tenant shall be responsible for the damage, breakage or repair of such plate
glass. If any damage to the Building results from any act or neglect of the
Tenant, the Landlord may at the Landlord's option, without any obligation to do
so, repair such damage,
8
-6-
and the Tenant shall thereupon pay to the Landlord the total cost of such
repairs and damages to the Building.
The parties agree that Tenant shall maintain public liability
insurance, pursuant to the terms of this paragraph, with minimum limits of
$2,000,000 and shall furnish the certificate to Landlord showing said insurance
is in full force and effect.
12. Conditions of Building. During the term of this Lease, Tenant
shall maintain at its sole cost the building and all components thereof in good
condition and repair, with its failing to do so constituting a default
hereunder. In the event Tenant fails to maintain the Building as required
hereunder, Landlord may restore the Building to such condition, and the Tenant
shall pay the cost thereof. At the termination of this Lease, Tenant shall
return the Building to the Landlord in good condition and repair, and, if the
Tenant is not in default hereunder, the Tenant may remove any removable fixtures
other than light fixtures and other like equipment installed by Tenant if, and
only if, such removals are done in a good and workmanlike manner and if the
Building and all surfaces are restored to conditions reasonably acceptable to
the Landlord.
13. Alterations. After construction of the Building by Landlord and
completion of fixtures and interior improvements by Tenant, Tenant shall not
make alterations in or additions to the Building unless Tenant has obtained
Landlord's written permission to do so, and subject to Tenant's not being in
default hereunder and subject to furnishing Landlord with acceptable plans and
specifications, the names and addresses of contractors, copies of contracts,
necessary permits and indemnifications as requested by the Landlord and lien
waivers as to any and all claims, costs, liabilities, and expenses which may
arise in connection with said alterations or additions. As a further condition
to Landlord's consent to said alterations or additions, Tenant shall advise all
subcontractors, suppliers, materialmen, and laborers that they shall not have
the right to file a Mechanic's Lien against the Building and property owned by
the Landlord. Whether the Tenant furnished the Landlord the foregoing or not,
the Tenant hereby agrees to hold the Landlord harmless from any and all
liabilities of every kind and description which may arise out of or be conducted
in any way with said alterations or additions. Before commencing any work in
connection with alterations or additions, the Tenant, if requested by Landlord,
shall furnish the Landlord with certificates of insurance from all contractors
performing labor or furnishing materials insuring the Landlord against any and
all liabilities which may arise out of or be connected in any way with said
additions or alterations. The Tenant shall pay the cost of all such alterations
and additions and also the cost of decorating the Building occasioned by such
alterations and additions.
Upon completing any alterations or additions, the Tenant, if
requested by Landlord, shall furnish the Landlord with contractors' affidavits
and full and final waiver of lien and receipted bills
9
-7-
covering all labor and material expended and used. All alterations and additions
shall comply with all insurance requirements and with all relevant laws,
ordinances, or regulations of municipalities, counties, state, or departments
and agencies thereof. All alterations and additions shall be constructed in a
good and workmanlike manner and only good grades of materials shall be used. All
additions, excepting removable fixtures other than light fixtures, shall become
the Landlord's property and shall remain upon the Building at the termination of
this Lease by lapse of time or otherwise without compensation or allowance or
credit to the Tenant. If the Tenant does not remove the Tenant's fixed
furniture, equipment, machinery, fixtures, and all other items of personal
property of every kind and description from the Building prior to the end of the
term, however ended, which the Tenant does not have the right to remove if it
is in default hereunder, then Tenant shall conclusively presumed to have
conveyed the same to the Landlord under this Lease as a xxxx of sale without
further payment or credit by Landlord to the Tenant. All structural changes made
by Tenant shall be restored to their original condition at the Tenant's expense
if Landlord so requests. Tenant's violation of any of the terms and conditions
of this numbered paragraph 13 shall constitute a default hereunder.
14. Rules and Regulations. The Tenant shall abide by all reasonable
rules and regulations adopted by Landlord pertaining to the operation and
management of the building. If any rules and regulations are contrary to the
terms of this Lease, the terms of the Lease shall govern.
15. Fire and Casualty. If the Building or any part thereof shall be
damaged or partially destroyed by fire or other casualty, the Tenant shall
promptly notify the Landlord, and, at the Tenant's sole cost and expense, and
whether or not the insurance proceeds are sufficient, restore, repair, replace,
or rebuild the Building. Said restoration shall be at least equal in quality and
class to the original construction, shall be of a design approved in writing by
the Landlord, shall be performed pursuant to plans and specifications approved
by the Landlord and in accordance with all provisions applicable to said work
and all other provisions of this Lease. The restoration shall be commenced
within ninety (90) days from the date of damage or partial destruction,
provided, however, the Landlord may grant such extensions of time for the
adjustment of insurance and the preparation of plans and specifications as
reasonably may be required. The architect or engineer in charge of such work
shall be selected by the Tenant and approved in writing by the Landlord. The
Tenant shall diligently complete the restoration. The Landlord agrees to oversee
and supervise all construction required under this paragraph 15; without
altering or modifying the Tenant's responsibilities hereunder.
No partial destruction or damage to the Building or any part thereof
shall permit the Tenant to surrender this Lease or relieve the Tenant from its
obligations to pay rent or from any other obligations hereunder. The Tenant
waives any rights now or in the future conferred
10
-8-
upon it by statute or otherwise to quit or surrender this Lease or to any
rebate, refund, suspension, diminution, abatement, or reduction of rent on
account of any partial destruction or damage to the Building.
If the Building is totally destroyed by fire or by any other
casualty, the Tenant shall promptly notify the Landlord, and, at the Tenant's
sole discretion, restore, replace, repair or rebuild the Building in accordance
with the provisions of this paragraph, or terminate this Lease. In the event the
Tenant elects to terminate this Lease, the Tenant shall, at the Tenant's sole
expense, restore the building site to its condition as of the date hereof, prior
to construction, to the satisfaction of Landlord.
16. Holding Over. If the Tenant retains possession of the Building or
any part thereof, by lapse of time or otherwise, after the termination of this
Lease, the Tenant shall pay the Landlord rent at double the rate payable for the
year immediately preceding said holdover computed on per month basis, for the
time the Tenant thus remains in possession. The provisions of this paragraph do
not waive the Landlord's rights of re-entry or any other right hereunder. Any
retention of the Building after the termination of this lease or any extension
thereof shall be considered as a month-to-month holdover unless otherwise agreed
to in writing by both parties.
17. Landlord's Remedies. All rights and remedies of the Landlord
herein enumerated shall be cumulative, and this Lease shall not exclude any
other right or remedy allowed herein or by law. If any provision hereof shall be
held invalid or unenforceable, the remaining provisions hereof shall continue
valid, enforceable and applicable.
A. If the Tenant defaults in the payment of base rent,
additional rent, or with regard to the payment of any other
sums due hereunder and if said default is not remedied
within ten (10) days after written demand is made by
Landlord, then in any such event, Landlord may, if the
Landlord so elects but not otherwise, either forthwith
terminate this Lease and the Tenant's right to possession of
the Building, or, without terminating this Lease, forthwith
terminate the Tenant's right to possession of the Building
and the Landlord may exercise any and all remedies available
to it under Iowa law, including but not limited to, the
foreclosure of its Landlord's lien against all tangible
personal property excepting property that is confidential or
otherwise proprietary in nature such as patents, copyrights,
trade secrets, software programs, data and the like of the
Tenant maintained within the Building.
11
-9-
B. If the Tenant defaults in the prompt and full performance of
any other provision of this Lease; and if such default is
not remedied or prompt and full performance is not
accomplished by Tenant or Tenant has not promptly instituted
and is not vigorously pursuing such remedies as are
necessary to rectify such default within thirty days after
written demand is made by Landlord, or if the Tenant
abandons the Building, then and in any such event, the
Landlord may, if the Landlord so elects but not otherwise,
forthwith terminate this Lease and the Tenant's right to the
Building or without terminating this Lease, forthwith
terminate the Tenant's right to possession of the Building
and exercise any and all other remedies available to the
Landlord under Iowa law, including but not limited to the
foreclosure of its Landlord's lien as limited above.
C. Upon any termination of this Lease, whether by lapse of time
or otherwise, or upon termination of the Tenant's right to
possession without termination of the Lease, the Tenant
shall immediately surrender possession and vacate the
Building and deliver possession thereof to the Landlord, and
the Tenant hereby grants to the Landlord full and free
license to enter the Building with or without process of
law, and to repossess and remove any and all property
therefrom using such force as may be necessary, without
being deemed guilty of trespass, eviction, or forcible entry
or detainer, and without relinquishing the Landlord's right
to rent or any other right given to the Landlord hereunder
or by operation of law.
D. Any and all property which may be removed from the Building
by the Landlord pursuant to the authority of the Lease or of
law, to which the Tenant is or may be entitled may be
handled, removed and stored by the Landlord at the risk,
cost and expense of the Tenant, provided, however, that
Landlord shall use reasonable care and caution to prevent
any damage or loss to such property in removing and storing
such property. The Tenant shall pay to the Landlord, upon
demand, any and all reasonable expenses incurred in such
removal and all reasonable storage charges against
12
-10-
such property as long as the same shall be in the
Landlord's possession or under the Landlord's control. Any
such property of the Tenant not removed from the Building
or retaken from storage by the Tenant within 60 days after
the end of the term, however, terminated, or any extension
thereof, shall be conclusively deemed to have been
forever abandoned by the Tenant.
E. If Tenant is adjudicated to be bankrupt or is found
insolvent in any court of record, or if a receiver or
trustee for the benefit of Tenant's creditors is appointed,
Landlord at its sole option may terminate this Lease without
notice and shall be entitled to damages as provided by law
or the terms hereof, provided, however, that such
adjudication, finding or appointment is not set aside within
30 days or an appeal therefrom shall not be prosecuted
within said 30 days and said appeal is either pending or is
concluded with the determination that Tenant is not bankrupt
or insolvent.
F. If Tenant should default under the terms of this Lease,
Landlord shall be entitled to all reasonable costs, charges,
expenses, and attorneys' fees incurred by Landlord in
connection therewith.
G. Tenant hereby pledges and assigns to Landlord subject to
purchase money security interests and prior perfected
security interests all of the furniture, fixtures, goods,
and tangible personal property of Tenant except that
property excepted in paragraph 17A above, which shall or may
be brought or put on the Building as security for the
payment of the rent herein reserved and Tenant agrees that
said lien hereby created by operation of law may be enforced
by foreclosure or otherwise at the election of the Landlord.
Tenant agrees to execute any and all financing statements,
security agreements and other forms necessary to perfect
this lien.
H. Tenant hereby waives and renounces any and all exemption
rights it may have now, or hereafter, under or by virtue of
the constitution and laws of the state in which the Building
is located or of any other state
13
-11-
or of the United States, as against the payment of said
rental or any portion hereof, or any other obligation or
damages that may accrue under the terms of this Agreement.
I. it is mutually agreed by and between Landlord and Tenant
that the respective parties hereto shall and they hereby do.
waive trial by jury in any action, proceeding or
counterclaim brought by either of the parties hereto against
the other on any matter whatsoever, arising out of or in any
way connected with this Lease, the relationship of Landlord
and Tenant, Tenant's use or occupancy of said Building, or
any claim of injury or damage, and any emergency statutory
or any other statutory remedy. It is further mutually agreed
that in the event Landlord commences any summary proceeding
for nonpayment of rent, Tenant will not interpose any
counterclaim of whatever nature or description in any such
proceeding.
J. Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future laws in
the event of Tenant being evicted or dispossessed for any
cause, or in the event of Landlord obtaining possession of
Building, by reason of the violation by Tenant of any of the
covenants and conditions of this Lease, or otherwise.
18. Basic Finish. The Landlord agrees to provide Tenant a "shell
Building" which will include the following basic interior finish:
A. Concrete floor.
B. Exterior walls with finish concrete masonry unit face.
C. Exterior windows and doors with glazing but no interior
trim.
D. Warehouse level ambient light (approximately 10 foot
candles).
E. Two 200 amp 3 phase panels at approximately the center of
the west wall of the Building.
F. Plumbing services will be stubbed into that same location
(sewer and water).
14
-12-
G. The heating, venting, and air conditioning units will be in
place with some main runs but no secondary runs or defusers.
H. Exterior landscaping and parking will be in place.
I. Sprinklers in place for open space.
Landlord, at its sole cost, shall provide the above and such other
improvements as are shown by the plans and specifications prepared by Xxxx Xxxx
X.X. dated August 29, 1994 and by this reference made a part hereof.
All interior improvements shall be completed by the Tenant consistent
with floor plans, specifications, and descriptions of materials provided by the
Tenant to the Landlord, and to be approved by the Landlord. The Landlord agrees
to advance the costs of the Tenant's improvements in an amount not to exceed
$60,000.00, and the Tenant agrees to repay said $60,000.00 at the rate of
$12,000.00 per year without interest until all sums are paid in full. The
parties agree to execute all necessary notes, security agreements, and financing
statements to provide the Landlord with security for the repayment of said sum.
The Landlord and Tenant agree to complete its respective improvements in a
timely fashion. The Landlord shall commence construction on or about November 2,
1994. The Tenant shall provide Landlord with plans and specifications for Tenant
improvements to be approved by Landlord which improvements shall be
substantially completed within 90 days from the date Landlord releases the
Building to Tenant for construction of Tenant improvements.
19. Option to Renew. The Tenant shall have one option to renew the
term of this Lease for one five-year term, which term shall commence immediately
upon the expiration of the original term of this Lease. Said extension shall be
upon the same terms and conditions contained herein, except for the rental rate
described in this paragraph. In the event the Tenant desires to exercise its
option to renew this lease, the Tenant shall notify the Landlord, in writing,
not less than 120 days prior to the expiration of the term hereof. During the
option period, the rent payable shall equal the rent described above,
($84,033.60 annually), adjusted by the change in the Bureau of Labor Statistics
Consumer Price Index, U.S. City Average. All Urban Consumers (C.P.I.-U) for the
month immediately preceding the end of the initial lease term from the index
(expressed as a percentage or otherwise) for the month of October 1994. If
publication of that index is terminated, a substantially equivalent successor
thereto shall be used to determine the adjustment in rent during the option
period.
15
-13-
20. Environmental Matters. Tenant shall comply with all applicable
environmental rules, regulations, and laws and the Tenant shall indemnify,
defend and hold Landlord harmless from and against any and all claims,
judgments, damages, penalties, fines, costs, liabilities, and losses (including
reasonable attorneys' fees), arising out of a breach of or violation of any
applicable environmental laws. The Tenant shall not cause any hazardous
material, as described by state or federal law, to be used, generated, stored,
or disposed of on, about, or under or transported to or from the building,
without first receiving the landlord's written consent, which consent may be
withheld for any reason and revoked at any time. The Tenant acknowledges that
the Landlord shall have no liability with respect to violations of the
provisions of this paragraph.
21. Subletting and Assignment. For purposes of this paragraph, any
transfer of stock, change in equity ownership within the Tenant or any change of
the Tenant's capital structure shall constitute an assignment or subletting,
with the exception of changes resulting from public offerings and other changes
where less than 49% of the Tenant's equity ownership has been transferred. With
the exception stated above, the Tenant shall not assign or sublet this Lease or
any part of the Building without the prior written consent of the Landlord,
which consent shall not be unreasonably withheld under the following conditions:
A. The assignee is at least as creditworthy, based upon
financial statements submitted to the Landlord, as the
Tenant.
B. The assignee shall agree to abide by all the terms and
conditions of this Lease.
C. There shall be no defaults under the terms of this Lease at
that time.
Any assignment or subletting by the Tenant contrary to the terms
hereof shall have the effect of accelerating all sums due hereunder during the
remaining term of this Agreement, and shall constitute a default hereunder,
thereby entitling Landlord to pursue any and all remedies available to it. No
assignment or sublease shall relieve the Tenant of its obligations hereunder.
22. Notices. All notice to be given by one party to the other party
under this Lease shall be given in written form and mailed or delivered to the
following:
A. To the Landlord, 0000 Xxxxxxx 00 X.X., Xxxxx Xxxxxx, Xxxx
00000-0000, or to such other person at such other address
designated by Notice sent to Tenant and after commencement
of the term of the address to which rent is payable.
16
-14-
B. To the Tenant at the place set forth in the Schedule until
Tenant takes possession of the Building, and thereafter at
the Building or at such other address designated by notice
to the Landlord.
Mailed notices shall be sent by United States mail, Certified or
Registered, postage prepaid. Such notice shall be deemed to have been given upon
depositing in the United States mail.
23. Quiet Possession. So long as Tenant shall observe and perform the
covenants and agreements binding on it hereunder, Tenant shall at all times
during the term herein granted peacefully and quietly have and enjoy the
possession of the Building without any encumbrance or hindrance by, from or
through the Landlord, its successors or assigns.
24. Miscellaneous.
A. Each provision hereof shall extend to and shall, as the case
may require, bind and inure to the benefit of the Landlord
and the Tenant and their respective heirs, legal
representatives and successors, and assigns.
B. All amounts owed to the Landlord hereunder, for which the
date of payment is not expressly fixed herein, shall be paid
within thirty (30) days from the date the Landlord renders
statements of account therefore and shall bear interest at
the rate of ten (10%) per annum thereafter until paid.
C. Tenant shall deliver to Landlord or to its mortgagee,
auditors, or prospective purchaser when requested by
Landlord, a certificate to the effect that Landlord is not
in default therein, or stating specifically any exceptions
thereto. Failure to give such a certificate within two (2)
weeks after written request shall be conclusive evidence
that the Lease is in full force and effect and Landlord is
not in default and Tenant shall be estopped from asserting
any defaults known to Tenant at that time.
D. In the event that all or a substantial portion of the
Building is taken by eminent domain so that the Building
cannot be reasonably used by Tenant for the purposes for
which it is demised, then at the option of either party the
Lease may be terminated, effective as of the date of the
taking. In this event, the
17
-15-
entire award shall be paid to and retained by Landlord
excepting however, that Tenant may receive therefrom any
portion paid on account of its moving expenses.
MYRIAD DEVELOPERS, L.C. UROSURGE, INC.,
an Iowa limited liability company an corporation
----------------
BY /s/ Xxxxxxx X. Xxxxxx BY
------------------------------ ------------------------------
LANDLORD TENANT
