Exhibit 10.2
LEASE AGREEMENT
LANDLORD: BOYER RESEARCH PARK ASSOCIATES V,
BY ITS GENERAL PARTNER, THE BOYER
COMPANY, L. C.
TENANT: MYRIAD GENETICS, INC.
TABLE OF CONTENTS
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DESCRIPTION PAGE
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I. PREMISES 1
1.1 Description of Premises 1
1.2 Work of Improvement 1
1.3 Construction of Building 2
II. TERM 2
2.1 Length of Term 2
2.2 Commencement Date; Obligation to Pay Rent 2
2.3 Construction of Leased Premises 2
2.4 Renewal Option 3
2.5 Acknowledgment of Commencement Date 3
III. BASIC RENTAL PAYMENTS 3
3.1 Basic Annual Rent 3
3.2 Additional Monetary Obligations 4
IV. ADDITIONAL RENT 4
4.1 Basic Annual Rent. 4
4.2 Report of Basic Costs and Statement of Estimated Costs 6
4.3 Payment of Additional Rent 6
4.4 Resolution of Disagreement 7
4.5 Limitations 7
V. SECURITY DEPOSIT 7
5.1 Deposit 7
5.2 Default 7
VI. USE 8
6.1 Use of Leased Premises 8
6.2 Prohibition of Certain Activities or Uses 8
6.3 Affirmative Obligations with Respect to Use 8
6.4 Suitability 9
6.5 Taxes 9
VII. UTILITIES AND SERVICE 9
7.1 Obligation of Landlord 9
7.2 Tenant's Obligations 10
7.3 Additional Limitations 10
7.4 Limitation on Landlord's Liability 10
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DESCRIPTION PAGE
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VIII. MAINTENANCE AND REPAIRS; ALTERATIONS; ACCESS 10
8.1 Maintenance and Repairs by Landlord 10
8.2 Maintenance and Repairs by Tenant 11
8.3 Tenant Approval of Management and Maintenance Services 11
8.4 Alterations 11
8.5 Landlord's Access to Leased Premises 12
IX. ASSIGNMENT 12
9.1 Assignment Prohibited 12
9.2 Consent Required 13
9.3 Landlord's Right in Event of Assignment 13
X. INDEMNITY 13
10.1 Indemnification By Tenant 13
10.2 Release of Landlord 14
10.3 Notice 14
10.4 Litigation 14
XI. INSURANCE 14
11.1 Fire and "All Risk" Insurance on Tenant's Personal
Property and Fixtures 14
11.2 Liability Insurance 14
11.3 Subrogation 14
11.4 Lender 14
XII. DESTRUCTION 15
XIII. CONDEMNATION 15
13.1 Total Condemnation 15
13.2 Partial Condemnation 15
13.3 Landlord's Option to Terminate 16
13.4 Award 16
13.5 Definition 16
XIV. LANDLORD'S RIGHTS TO CURE 16
14.1 General Right 16
14.2 Mechanic's Lien 17
XV. FINANCING; SUBORDINATION 17
15.1 Subordination 17
15.2 Attornment 17
15.3 Financial Information 17
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DESCRIPTION PAGE
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XVI. EVENTS OF DEFAULT; REMEDIES OF LANDLORD 18
16.1 Default by Tenant 18
16.2 Remedies 18
16.3 Past Due Sums; Penalty 18
XVII. PROVISIONS APPLICABLE AT TERMINATION OF LEASE 19
17.1 Surrender of Premises 19
17.2 Holding Over 19
XVIII. ATTORNEYS' FEES 19
XIX. ESTOPPEL CERTIFICATE 19
19.1 Landlord's Right to Estoppel Certificate 19
19.2 Effect of Failure to Provide Estoppel 20
Certificate
XX. PARKING 20
XXI. SIGNS, AWNINGS, AND CANOPIES 20
XXII. MISCELLANEOUS PROVISIONS 20
22.1 No Partnership 20
22.2 Force Majeure 20
22.3 No Waiver 21
22.4 Notice 21
22.5 Captions; Attachments; Defined Terms 21
22.6 Recording 21
22.7 Partial Invalidity 22
22.8 Broker's Commissions 22
22.9 Tenant Defined: Use of Pronouns 22
22.10 Provisions Binding, Etc. 22
22.11 Entire Agreement, Etc. 22
22.12 Governing Law 23
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DESCRIPTION PAGE
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SIGNATURES 24
NOTARIES 25& 26
RIDER Yes X No
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GUARANTY Yes No
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EXHIBIT "A" DESCRIPTION OF REAL PROPERTY
EXHIBIT "B" FLOORPLAN OF LEASED PREMISES
EXHIBIT "C" WORK LETTER-CONSTRUCTION AND/OR FINISH OF
IMPROVEMENTS TO LEASED PREMISES
EXHIBIT "D" ACKNOWLEDGMENT OF COMMENCEMENT DATE &
ESTOPPEL CERTIFICATE
EXHIBIT "E" COST TO CONSTRUCT LEASED PREMISES
EXHIBIT "F" IMPROVEMENT REMOVAL AGREEMENT
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LEASE AGREEMENT
RESEARCH PARK BUILDING - PHASE I
THIS LEASE AGREEMENT (the "Lease") is made and entered into as of this 12th
day of October, 1995 by and between BOYER RESEARCH PARK ASSOCIATES V, BY ITS
GENERAL PARTNER, THE BOYER COMPANY, L.C. (the "Landlord"), and MYRIAD GENETICS,
INC. (the "Tenant").
For and in consideration of the rental to be paid by tenant and of the
covenants and agreements herein set forth to be kept and performed by Tenant,
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord, the
Leased Premises (as hereafter defined), at the rental and subject to and upon
all of the terms, covenants and agreements hereinafter set forth.
I. PREMISES
1.1 Description of Premises. Landlord does hereby demise, lease
and let unto Tenant, and Tenant does hereby take and receive from
Landlord the following:
(a) That certain floor area containing approximately 24,476 gross
rentable square feet (the "Leased Premises"), more particularly, 14,043
gross rentable square feet on Floor Two and 10,433 gross rentable
square feet on Floor One, of the 43,726 gross rentable square feet
three story office building (the "Building") located at approximately
350 Wakara Way in Salt Lake City, Utah, on the real property (the
"Property") described on Exhibit "A" attached hereto and by this
reference incorporated herein. The space occupied by Tenant consists of
that certain area crosshatched on Exhibit "B" which is attached hereto
and by this reference incorporated herein.
(b) Such non-exclusive rights-of-way, easements and similar rights
with respect to the Building and Property as may be reasonably
necessary for access to and egress from, the Leased Premises.
(c) The exclusive right to use those areas designated and suitable
for vehicular parking, including the exclusive right to the use of
Eighty-six (86) parking stalls.
1.2 Work of Improvement. The obligation of Landlord and Tenant to
perform the work and supply the necessary materials and labor to
prepare the Leased Premises for occupancy are described in detail on
Exhibit "C". Landlord and Tenant shall expend all funds and do all acts
required of them as described on Exhibit "C" and shall perform or have
the work performed promptly and diligently in a first class and
workmanlike manner.
1.3 Construction of Shell Building. Landlord shall, at its own
cost and expense, construct and complete a three story 43,726 gross
rentable square foot building and cause all of the construction which
is to be performed by it in completing the Building and performing its
work as set forth on Exhibit "C", to be substantially completed as
evidenced by a Certificate
of Occupancy, and the Leased Premises ready for Tenant to install its
fixtures and equipment and to perform its other work as described on
Exhibit "C" as soon as reasonably possible, but in no event later than
November 1, 1996 ("Target Date"). In the event that Landlord's
construction of obligation has not been fulfilled upon the expiration of
the"Target Date", Tenant shall have the right to exercise any right or
remedy available to it under this Lease, including the right to terminate
this Lease and the right to charge Landlord and cause Landlord to pay any
increased costs associated with Tenant's current leases due to holding
over in such space or moving to temporary space; provided that under no
circumstances shall Landlord be liable to Tenant resulting from delay in
construction covered by circumstances beyond Landlord's direct control.
II. TERM
2.1 Length of Term. The term of this Lease shall be for a period of
ten (10) years plus the partial calendar month, if any, occurring after
the Commencement Date (as hereinafter defined) if the Commencement Date
occurs other than on the first day of a calendar month.
2.2 Commencement Date; Obligation to Pay Rent. The term of this
Lease and Tenant's obligation to pay rent hereunder shall commence on the
first to occur of the following dates ("Commencement Date"):
(a) The date Tenant occupies the Premises and conducts business.
(b) The date fifteen (15) days after the Landlord, or Landlord's
supervising contractor, notified Tenant in writing that Landlord's
construction obligations respecting the Leased Premises have been
fulfilled and/or that the Leased Premises are ready for occupancy and/or
performance of Tenant's work. Such notice shall be accompanied by an
occupancy permit and a certificate from the Building Architect stating
that remaining punchlist items can be completed within fifteen (15) days
and will not materially interfere with Tenant's business. Prior to
Commencement Date, it is contemplated that Tenant shall be able to
perform its construction obligation as per Exhibit C II(H).
2.3 Construction of Leased Premises. Landlord shall provide a budget
prior to the commencement of construction of the Leased Premises (see
Exhibit "E"). Landlord shall itemize each part of the construction and
its associated estimated cost. Landlord shall pay an amount equal to
$22.00 per usable square foot (architect shall calculate usable square
foot measurement) of the cost listed (excluding cost to construct Shell
Building) and Tenant shall be obligated for the remaining costs shown on
Exhibit "E". Landlord shall not be obligated to pay for any increase in
the actual cost of construction over and above the construction costs
shown on Exhibit "E". Any special decorator items, equipment, furniture
or furnishings not designated on Exhibit "E", as well as changes
initiated by the Tenant to the Leased Premises, shall be the sole cost of
Tenant and shall include the defined extras on Exhibit "E."
2.4 Renewal Option. If this Lease then remains in full force and
effect, Tenant shall have the option to renew this Lease for two five
year options commencing on the expiration date.
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Each option must be exercised by written notice to Landlord one hundred
and eighty (180) days from the expiration of the previous term and once
exercised is irrovacable. Base rent during each renewal term shall be
mutually agreed upon between Landlord and Tenant within Sixty (60) days
after Tenant has exercised the respective renewal option.
2.5 Acknowledgment of Commencement Date. Landlord and Tenant
shall execute a written acknowledgment of the commencement Date in the
form attached hereto as Exhibit "D".
III. BASIC RENTAL PAYMENTS
3.1 Basic Annual Rent. Tenant agrees to pay to Landlord as basic
annual rent (the "Basic Annual Rent") at such place as Landlord may
designate, without prior demand therefore and without any deduction or set
off whatsoever, the sum of Three Hundred and Three Thousand Seven Hundred
and Fifty and no/100 Dollars ($330,426.00). Said Basic Annual Rent shall
be due and payable in twelve (12) equal monthly installments to be paid in
advance on or before the first day of each calendar month during the term
of the Lease. Basic Annual Rent shall escalate at the beginning of the 6th
year using a 3% annually compounded rate or the change in the All Urban
Index whichever is less. For purposes of this Lease the term "All Urban
Index" shall mean the Consumer Price Index for All Urban Consumers-U.S.
City Average-all Items (1967 equals 100 base) as published by the United
States Bureau of Labor Statistics or any successor agency or any other
index hereinafter employed by the Bureau of Labor Statistics in lieu of
said index. The price index for the 3rd month preceding the month in which
the Lease commences shall be considered the Basic Price Index. As of the
beginning of the 6th year, the Basic Annual Rental set forth in Section
3.1 shall be adjusted by multiplying such rental by a fraction, the
numerator of which is the Price Index for the 3rd month preceding the
beginning of the 6th year and the denominator of which is the Basic Price
Index. The above not withstanding, the maximum increase at the beginning
of the 6th year shall be no more than 15.9% which is 3% per year
compounded. To the extent that ground lease payments under the Ground
Lease with the University of Utah (i) begin at a rate greater than
Fourteen Thousand Dollars ($14,000.00) per acre per year, the incremental
dollar amount above $14,000.00, if any, shall also be added to Basic
Annual Rent in relation to Tenant's Proportionate Share of Basic Costs as
provided in Paragraph 4.1(d); and (ii) escalate at a rate greater that
three percent (3%) compounded annually, the incremental dollar amount
above the three percent (3%) escalation shall also be added to the Basic
Annual Rent in relation to Tenant's Proportionate Share of Basic Costs as
provided in Paragraph 4.1(d).
In no event shall Basic Annual Rent be reduced. In the event the
Commencement Date occurs on a day other than the first day of a calendar
month, then rent shall be paid on the Commencement Date for the initial
fractional calendar month prorated on a per-diem basis (based upon a
thirty (30) day month).
3.2 Additional Monetary Obligations. Tenant shall also pay as
rental (in addition to the Basic Annual Rent) all other sums of money as
shall become due and payable by Tenant to Landlord under this Lease.
Landlord shall have the same remedies in the case of a default in the
payment of said other sums of money as are available to Landlord in the
case of a default in the payment of one or more installments of Basic
Annual Rent.
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IV. ADDITIONAL RENT
4.1 Basic Annual Rent. It is the intent of both parties that the
Basic Annual Rent herein specified shall be absolutely net to the Landlord
throughout the term of this Lease, and that all costs, expenses and
obligations relating to Tenant's prorata share of the Building, Property
and/or Building, Property and/or Leased Premises which may arise or become
due during the term shall be paid by Tenant in the manner hereafter
provided.
For purposes of this Part IV and the Lease in general, the following
words and phrases shall have the meanings set forth below:
(a) "Basic Costs" shall mean all actual costs and expenses incurred
by Landlord in connection with the ownership, operation, management and
maintenance of the Building and Property and related improvements located
thereon (the "Improvements"), including, but not limited to, all expenses
incurred by Landlord as a result of Landlord's compliance with any and
all of its obligations under this Lease other than the performance by
Landlord of its work under Sections 1.2, 1.3 and 2.3 of this Lease or
similar provisions of leases with other tenants. In explanation of the
foregoing, and not in limitation thereof, Basic Costs shall include: all
real and personal property taxes and assessments (whether general or
special, known or unknown, foreseen or unforeseen) and any tax or
assessment levied or charged in lieu thereof, whether assessed against
Landlord and/or Tenant and whether collected from Landlord and/or Tenant;
snow removal, trash removal, supplies, insurance, license, permit and
inspection fees, cost of services of independent contractors, cost of
compensation (including employment taxes and fringe benefits) of all
persons who perform regular and recurring duties connected with day-to-
day operation, maintenance, repair, and replacement of the Building, its
equipment and the adjacent walk, and landscaped area (including, but not
limited to janitorial, scavenger, gardening, security, parking, elevator,
painting, plumbing, electrical, mechanical, carpentry, window washing,
structural and roof repairs and reserves (Landlord may collect up to one
percent (1%) of total Basic Costs as a contribution toward reserves),
signing and advertising, and rental expense or a reasonable allowance for
depreciation of personal property used in the maintenance, operation and
repair of the Building. Basic Costs shall not include expenses incurred
in connection with leasing, renovating, or improving space for tenants or
other occupants or prospective tenants or occupants of the Building,
expenses incurred for repairs resulting from damage by fire, windstorm or
other casualty, to the extent such repairs are paid for by insurance
proceeds, expenses paid by any tenant directly to third parties, or as to
which Landlord is otherwise reimbursed by any third party or Tenant;
expenses which, by generally accepted accounting principles, are treated
as capital items except that if, as a result of governmental
requirements, laws or regulations, Landlord shall expend monies directly
or indirectly for improvements, additions or alterations to the Building
which, by generally accepted accounting principles, are treated as a
capital expenditures, the amortization of such capital expenditures based
on a life acceptable to the appropriate taxing authority together with
interest at the rate of 9% per annum shall be considered Basic Costs. The
foregoing notwithstanding, Basic Costs shall not include
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depreciation on the Building and Tenant Finish; amounts paid
toward principal or interest of loans of Landlord; nor shall Basic Costs
include "Direct Costs" as defined in Section 4.1(b) below.
(b) "Direct Costs" shall mean all actual costs and expense incurred by
Landlord in connection with the operation, management, maintenance,
replacement, and repair of tenants' premises, including but not limited to
janitorial services, maintenance, repairs, supplies, utilities, heating,
ventilation, air conditioning, and property management fees, which property
management fees shall be equal to a percentage of Tenant's Basic Annual
Rent and Estimated Costs including electricity, which percentage shall not
exceed four percent (4%) of the sum of Basic Annual Rent, Estimated Costs
and cost of electricity for the Leased Premises.
Landlord will cause meters to be installed to measure actual
electrical usage by Tenant. When such meters are installed, Tenant shall
pay Landlord monthly, as additional rent, the actual costs of such metered
electrical usage. At least annually, Landlord shall reconcile the
estimated costs of these metered services and shall show the actual costs
and shall apply any appropriate credits or debits from the previous year's
actual usage. All such billings will be computed at the actual kilowatt
hourly rate billed to the Landlord by the public utility companies for each
respective period, including taxes. Tenant shall promptly pay to Landlord
the amount due on each monthly billing received for and throughout the term
of the Lease.
(c) "Estimated Costs" shall mean the projected amount of Tenant's
Direct Costs and Basic Costs, excluding the costs of electricity provided
to Tenant's Leased Premises, if separately metered. The Estimated Costs for
the calendar year in which the Lease commences are $110,142.00, and are not
included in the Basic Annual Rent. If the Estimated Costs as of the date
Tenant takes occupancy are greater than Tenant's Estimated Costs at the
time this Lease is executed, the Estimated Costs shall be increased to
equal the Estimated Costs as of the date of Tenant's occupancy.
(d) "Tenant's Proportionate Share of Basic Costs" shall mean the
percentage derived from the fraction, the numerator of which is the gross
rentable square footage of the Lease premises (24,476), the denominator of
which is the gross rentable square footage of the building (43,726). In
this Lease, Tenant's prorata share initially is 56% subject to increase or
decrease due to increases or decreases in the gross rentable square footage
of the Leased Premises and/or of the Building.
4.2 Report of Basic Costs and Statement of Estimated Costs.
(a) After the expiration of each calendar year occurring during the
term of this Lease, Landlord shall furnish Tenant a written statement of
Tenant's Proportionate Share of Basic Costs (Section 4.1(d)) and the
Tenant's Direct Costs occurring during the previous calendar year. The
written statement shall specify the amount by which Tenant's Direct Costs
and Basic Costs exceed or are less than the amounts paid by Tenant during
the previous calendar year pursuant to Section 4.3(b) below.
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(b) At the same time specified in Section 4.2(a) above, Landlord shall
furnish Tenant a written statement of the Estimated Costs for the then
current calendar year.
4.3 Payment of Additional Rent. Tenant shall pay as additional rent
("Additional Rent") Tenant's Direct Costs and Tenant's Proportionate Share
of Basic Costs. The Additional Rent shall be paid as follows:
(a) With each monthly payment of Basic Annual Rent due pursuant to
Section 3.1 above, Tenant shall pay to Landlord, without offset or
deduction, one-twelfth (l/12th) of the Estimated Costs as defined in
Section 4.1(c).
(b) Within thirty (30) days after delivery of the written statement
referred to in section 4.2(a) above, Tenant shall pay to Landlord the
amount by which Tenant's Direct Costs and Basic Costs, as specified in such
written statements, exceed and aggregate of Estimated Costs actually paid
by Tenant for the year at issue. Tenant shall have the right to audit
Landlord's books upon reasonable notice. Tenant shall pay costs associated
with the audit unless Tenant finds that Landlord has inflated expenses by
more than ten percent (10%), in which case, Landlord will pay audit
charges. Payments by Tenant shall be made pursuant to this Section 4.3(b)
notwithstanding that a statement pursuant to Section 4.2(a) is furnished to
Tenant after the expiration of the term of this Lease.
(c) If the annual statement of costs indicates that the Estimated
Costs paid by Tenant pursuant to subsection (b) above for any year exceeded
Tenant's actual Direct Costs and Basic Costs for the same year, Landlord,
at its election, shall either (i) promptly pay the amount of such excess to
Tenant, or (ii) apply such excess against the next installment of Basic
Annual Rental or Additional Rent due hereunder.
4.4 Resolution of Disagreement. Every statement given by Landlord
pursuant to Section 4.2 shall be conclusive and binding upon Tenant unless
within sixty (60) days after the receipt of such statement Tenant shall
notify Landlord that it disputes the correctness thereof, specifying the
particular respects in which the statement is claimed to be incorrect. If
such dispute shall not have been settled by agreement, the parties hereto
shall submit the dispute to arbitration within ninety (90) days after
Tenant's receipt of statement. Pending the determination of such dispute by
agreement or arbitration as aforesaid, Tenant shall, within thirty (30)
days after receipt of such statement, pay Additional Rent in accordance
with Landlord's statement, and such payment shall be without prejudice to
Tenant's position. If the dispute shall be determined in Tenant's favor,
Landlord shall forthwith pay Tenant the amount of Tenant's overpayment of
rents resulting from compliance with Landlord's statement, including
interest on disputed amounts at prime plus two percent (2%). Landlord
agrees to grant Tenant reasonable access to Landlord's books and records
for the purpose of verifying Basic Costs and Direct Costs for operating
expenses incurred by Landlord.
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4.5 Limitations. Nothing contained in this Part IV shall be construed
at any time so as to reduce the monthly installments of Basic Annual Rent
payable hereunder below the amount set forth in Section 3.1 of this Lease.
V. SECURITY DEPOSIT
5.1 Deposit. Tenant has deposited with Landlord the sum of Twenty
Seven Thousand Five Hundred Thirty Five and 50/100 Dollars ($27,535.50)
(1/12 of Basic Annual Rent) as security for the performance by Tenant of
all of the terms, covenants, and conditions required to be performed by it
hereunder. Such sum shall be returned to Tenant after the expiration of the
term of this Lease and delivery of possession of the Leased Premises to
Landlord if, at such time, Tenant has substantially performed all such
terms, covenants, and conditions of this Lease. Prior to the time when
Tenant is entitled to any return of the security deposit, Landlord may
intermingle such deposit with its own funds and use such sum for such
purposes as Landlord may determine. Tenant shall not be entitled to any
interest on the security deposit.
5.2 Default. In the event of default by Tenant in respect to any of
its obligations under this Lease, including, but not limited to, the
payment of rent or additional rent, Landlord may use, apply, or retain all
or any part of the security deposit for the payment of any unpaid Basic
Annual Rent or Additional Rent, or Landlord may be required to expend by
reason of the default of Tenant, including any damages or deficiency in the
reletting of the Leased Premises, regardless of whether the accrual of such
damages or deficiency occurs before or after an eviction or a portion of
the security deposit is so used or applied, Tenant shall, upon thirty (30)
days written demand, deposit cash with Landlord in an amount sufficient to
restore the security deposit to its original amount.
VI. USE
6.1 Use of Leased Premises. The Leased Premises shall be used and
occupied by Tenant for laboratory and general office purposes only and for
no other purpose whatsoever without the prior written consent of Landlord.
6.2 Prohibition of Certain Activities or Uses. The Tenant shall not do
or permit anything to be done in or about, or bring or keep anything in the
Leased Premises which is prohibited by this Lease or will, in any way or to
any extent:
(a) Adversely affect any fire, liability or other insurance policy
carried with respect to the Building, the Leased Premises or any of the
contents of the Building (except with Landlord's express written
permission, which will not be unreasonably withheld, but which may be
contingent upon Tenant's agreement to bear any additional costs, expenses
or liability for risk that may be involved).
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(b) Conflict with or violate any law, statute, ordinance, rule,
regulation or requirement of any governmental unit, agency or authority
(whether existing or enacted as promulgated in the future, known or
unknown, foreseen or unforeseen).
(c) Adversely overload the floors or otherwise damage the
structural soundness of the Leased Premises or Building, or any part
thereof (except with Landlord's express written permission, which will not
be unreasonably withheld, but which may be contingent upon Tenant's
agreement to bear any additional costs, expenses or liability for risk that
may be involved).
6.3 Affirmative Obligations with Respect to Use.
(a) Tenant will comply with all governmental laws, ordinances,
regulations, and requirements, now in force or which hereafter may be in
force, of any lawful governmental body or authorities having jurisdiction
over the Leased Premises, will keep the Leased Premises and every part
thereof in a clean, neat, and orderly condition, free of objectionable
noise, odors, or nuisances, will in all respects and at all times fully
comply with all applicable health and policy regulations, and will not
suffer, permit, or commit any waste.
(b) At all times during the term hereof, Tenant shall, at Tenant's
sole cost and expense, comply with all statutes, ordinances, laws, orders,
rules, regulations and requirements of all applicable federal, state,
county, municipal and other agencies or authorities, now in effect or which
may hereafter become effective, which shall impose any duty upon Landlord
or Tenant with respect to the use, occupation or alterations of the Leased
Premises (including, without limitation, all applicable requirements of the
Americans with Disabilities Act of 1990 and all other applicable laws
relating to people with disabilities, and all rules and regulations which
may be promulgated thereunder from time to time and whether relating to
barrier removal, providing auxiliary aids and services or otherwise) and
upon request of Landlord shall deliver evidence thereof to Landlord.
6.4 Suitability. The Leased Premises, Building and Improvements
(and each and every part thereof) shall be deemed to be in satisfactory
condition unless, within sixty (60) days after the Commencement Date,
Tenant shall give Landlord written notice specifying, in reasonable detail,
the respects in which the Leased Premises, Building or Improvements are not
in satisfactory condition. Landlord further provides warranties as provided
in Exhibit C II paragraphs C and E.
6.5 Taxes. Tenant shall pay all taxes, assessments, charges, and
fees which during the term hereof may be imposed, assessed or levied by any
governmental or public authority against or upon Tenant's use of the Leased
Premises or any personal property or fixture kept or installed therein by
Tenant and on the value of leasehold improvements to the extent that the
same exceed Building allowances.
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VII. UTILITIES AND SERVICE
7.1 Obligation of Landlord. During the term of this Lease the Landlord
agrees to cause to be furnished to the Leased Premises during normal
operating hours, the following utilities and services, the cost and
expense of which shall be included in Basic and/or Direct Costs:
(a) Electricity, water, gas and sewer service.
(b) Telephone connection to the building, but not including telephone
stations and equipment (it being expressly understood and agreed that
Tenant shall be responsible for the ordering and installation of
telephone lines and equipment which pertain to the Leased Premises).
(c) Heating and air-conditioning during normal operating hours to such
extent and to such levels as is reasonably required for the comfortable
use and occupancy of the Leased Premises subject however to any
limitations imposed by any government agency.
(d) Janitorial service.
(e) Security (including the lighting of common halls, stairways,
entries and restrooms) to such extent as is usual and customary in
similar buildings in Salt Lake County, Utah.
(f) Snow removal service.
(g) Landscaping and groundskeeping service.
(h) Elevator service.
(i) The normal operating hours for office portion of the Lease
Premises are from 7:00 a.m. to 6:00 p.m., Monday through Friday.
Normal operating hours for the laboratory portion is 7 a.m. to 11
p.m., Monday through Friday.
7.2 Tenant's Obligations. Tenant shall arrange for and shall pay
the entire cost and expense of all telephone stations, equipment and use
charges, electric light bulbs (but not fluorescent bulbs used in
fixtures originally installed in the Leased Premises) and all other
materials and services not expressly required to be provided and paid
for pursuant to the provisions of Section 7.1 above.
7.3 Additional Limitations. If and where heat generating machines
devices are used in the Leased Premises which affect the temperature
otherwise maintained by the air conditioning system, Landlord reserves
the right with Tenant's concurrence to install additional or
supplementary air conditioning units for the Leased premises,
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and the entire cost of installing, operating, maintaining and
repairing the same shall be paid by Tenant to Landlord promptly after
demand by Landlord.
7.4 Limitation on Landlord's Liability. Landlord shall not be
liable for and Tenant shall not be entitled to terminate this Lease or
to effectuate any abatement or reduction of rent by reason of
Landlord's failure to provide or furnish any of the foregoing
utilities or services if such failure was reasonably beyond the
control of Landlord. In no event shall Landlord be liable for loss or
injury to persons or property, however, arising or occurring in
connection with or attributable to any failure to furnish such
utilities or services even if within the control of Landlord, except
in the event of Landlord's negligence.
VIII. MAINTENANCE AND REPAIRS; ALTERATIONS; ACCESS
8.1 Maintenance and Repairs by Landlord. Landlord shall maintain
in good order, condition and repair the structural components of the
Leased Premises, including without limitation roof, exterior walls and
foundations, as well as all repairs covered under construction
warranties provided if Landlord is required to make structural repairs
by reason of Tenant's negligent acts or omissions, Tenant shall pay
Landlord's costs for making such repairs.
8.2 Maintenance and Repairs by Tenant. Tenant, at Tenant's sole
cost and expense and without prior demand being made, shall maintain
the Leased Premises in good order, condition and repair, and will be
responsible for the painting, carpeting or other interior design work
of the Leased Premises beyond the initial construction phase as
specified in Section 2.3 and Exhibit "C" and "E" of the Lease and
shall maintain all equipment and fixtures installed by Tenant. If
repainting or recarpeting is required and authorized by Tenant, the
cost for such are the sole obligation of Tenant and shall be paid for
by Tenant immediately following the performance of said work and a
presentation of an invoice for payment.
8.3 Tenant Approval of Management and Maintenance Services.
Tenant shall have the right to approve of persons who have or will
contract with Landlord for Building and Property management and
maintenance services. In addition, in the event that Tenant reasonably
believes that another person could (i) provide better property
management or maintenance service at the same or less cost than the
person currently providing such property management or maintenance
service, or (ii) provide equal property management or maintenance
service for less cost, then Tenant shall, at its option, provide to
Landlord the name and address of such person. Landlord agrees to take
reasonable steps to verify that such person referred by Tenant could
better or more economically provide the contracted for management
and/or maintenance services for the Building and/or Property, and
provided that Landlord determines in its reasonable discretion that
making such a change will not be disadvantageous to other tenants of
the Building, then upon such verification, Landlord agrees to contract
with and substitute such person to provide such service. The foregoing
applies to services rendered pursuant to Articles 4, 7 and 8.
8.4 Alterations. Tenant shall not make or cause to be made any
alterations, additions or improvements or install or cause to be
installed any fixtures, signs, floor coverings, interior
10
or exterior lighting, plumbing fixtures, or shades or awnings, or make any
other changes to the Leased Premises without first obtaining Landlord's
written approval, which approval shall not be unreasonably withheld. Tenant
shall present to the Landlord plans and specifications for such work at the
time approval is sought. In the event Landlord consents to the making of
any alterations, additions, or improvements to the Leased Premises by
Tenant, the same shall be made by Tenant at Tenant's sole cost and expense.
All such work with respect to any alterations, additions, and changes shall
be done in a good and workmanlike manner and diligently prosecuted to
completion such that, except as absolutely necessary during the course of
such work, the Leased Premises shall at all times be a complete operating
unit. Any such alterations, additions, or changes shall be performed and
done strictly in accordance with all laws and ordinances relating thereto.
In performing the work or any such alterations, additions, or changes,
Tenant shall have the same performed in such a manner as not to obstruct
access to any portion of the Building. Any alterations, additions, or
improvements to or of the Leased Premises, including, but not limited to,
wallcovering, fume hoods, darkroom, paneling, and built-in cabinet work,
but excepting movable furniture and equipment, shall at once become a part
of the realty and shall be surrendered with the Premises, unless Landlord
and Tenant agree at any time that the specific improvement may be removed
by Tenant at the end of the Term provided Tenant restores the premises to
its original condition, wear and tear excepted. If there is an agreement to
allow removal, such items which are the subject of agreement shall be
listed on Exhibit F which agreement, as may be revised by the parties from
time to time, shall be made a part of this Lease. The parties have agreed
as to the items 1 through 8 listed on Exhibit F.
8.5 Landlord's Access to Leased Premises. Landlord shall have the
right to place, maintain, and repair all utility equipment of any kind in,
upon, and under the Leased Premises as may be necessary for the servicing
of the Leased Premises and other portion of the Building. Landlord shall
upon providing adequate notice to Tenant, also have the right to enter the
Leased Premises at all times to inspect or to exhibit the same to
prospective purchasers, mortgagees, tenants, and lessees, and to make such
repairs, additions, alterations, or improvements as Landlord may deem
desirable. Landlord shall be allowed to take all material upon said Leased
Premises that may be required therefor without the same constituting an
actual or constructive eviction of Tenant in whole or in part and the rents
reserved herein shall in no wise abate while said work is in progress by
reason of loss or interruption of Tenant's business or otherwise, and
Tenant shall have no claim for damages unless due to Landlord negligence.
During the three (3) months prior to expiration of this Lease or of any
renewal term, Landlord may place upon the Leased Premises "For Lease" or
"For Sale" signs which Tenant shall permit to remain thereon.
IX. ASSIGNMENT
9.1 Assignment Prohibited. Tenant shall not transfer, assign,
mortgage, or hypothecate this Lease, in whole or in part, or permit the use
of the Leased Premises by any person or persons other than Tenant, or
sublet the Leased Premises, or any part thereof, without the prior written
consent of Landlord in each instance, which consent shall not be
unreasonably withheld, provided sufficient information is provided to
Landlord to accurately represent the financial condition of those to whom
this Lease will be transferred, assigned, mortgaged, or hypothecated. Such
prohibition against assigning or subletting shall include any assignment or
11
subletting by operation of law. Any transfer of this Lease from the Tenant
by merger, consolidation, transfer of assets, or liquidation shall
constitute an assignment for purposes of this Lease. In the event that
Tenant hereunder is a corporation, an unincorporated association, or a
partnership, the transfer, assignment, or hypothecation of any stock or
interest in such corporation, association, or partnership in the aggregate
in excess of forty-nine percent (49%) shall be deemed an assignment within
the meaning of this Section. The above prohibition of assignment will not
apply in the case of a registered offering of shares by Tenant or the
public trading of registered shares subsequent to an initial offering.
9.2 Consent Required.
(a) Any assignment or subletting without Landlord's consent shall be
void, and shall constitute a default hereunder which, at the option of
Landlord, shall result in the termination of this Lease or exercise of
Landlord's other remedies hereunder. Consent to any assignment or
subletting shall not operate as a waiver of the necessity for consent to
any subsequent assignment or subletting, and the terms of such consent
shall be binding upon any person holding by, under, or through Tenant.
(b) Landlord shall have no obligation to consent to the proposed
sublease or assignment if the proposed sublessee or assignee or its
business is or may be subject to compliance with additional requirements of
the law, including any related rules or regulations, commonly known as the
"Americans with Disabilities Act of l990" or similar state or local laws
relating to persons with disabilities beyond those requirements which are
applicable to the tenant desiring to so sublease or assign".
9.3 Landlord's Right in Event of Assignment. If this Lease is
assigned or if the Leased Premises or any portion thereof are sublet or
occupied by any person other than the Tenant, Landlord may collect rent and
other charges from such assignee or other party, and apply the amount
collected to the rent and other charges reserved hereunder, but such
collection shall not constitute consent or waiver of the necessity of
consent to such assignment, subleasing, or other transfer, nor shall such
collection constitute the recognition of such assignee, sublessee, or other
party as the Tenant hereunder or a release of Tenant from the further
performance of all of the covenants and obligations, including obligation
to pay rent, of Tenant herein contained. In the event that Landlord shall
consent to a sublease or assignment hereunder, Tenant shall pay to Landlord
reasonable fees, not to exceed $100.00, incurred in connection with
processing of documents necessary to the giving of such consent. In the
event Landlord consents to the assignment as provided by paragraph 9.1,
then Tenant shall be released from further performance of any covenant and
obligation under this Lease.
X. INDEMNITY
10.1 Indemnification By Tenant. Tenant and Landlord shall indemnify
each other and save each other harmless from and against any and all suits,
actions, damage and claims, liability and expense in connection with loss
of life, bodily or personal injury, or property damage arising from or out
of any occurrence in, upon, at or from the Leased Premises, or occasioned
wholly
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or in part by any act or omission of Tenant or Landlord, their agents,
contractors, employees, servants, invitees, licensees or concessionaires.
All insurance policies carried by Tenant and/or Landlord shall include a
waiver of subrogation endorsement which specifies that the insurance
carrier(s) will waive any right of subrogation against Tenant and/or
Landlord arising out of any insurance claim.
10.2 Release of Landlord. Landlord shall not be responsible or
liable at any time for any loss or damage to Tenant's personal property or
to Tenant's business. Tenant shall store its property in and shall use and
enjoy the Leased Premises and all other portions of the Building and
Improvements at its own risk, and hereby releases Landlord, to the full
extent permitted by law, from all claims of every kind resulting in loss of
life, personal or bodily injury, or property damage.
10.3 Notice. Tenant shall give prompt notice to Landlord in case of
fire or accidents in the Leased Premises or in the Building of which the
Leased Premises are a part or of defects therein or in any fixtures or
equipment.
10.4 Litigation. In case Landlord, without fault on its part, shall
be made a party to any litigation commenced against Tenant, then Tenant
shall protect and hold Landlord harmless and shall pay all costs, expenses,
and reasonable attorneys' fees.
XI. INSURANCE
11.1 Fire and "All Risk" Insurance on Tenant's Personal Property
and Fixtures. At all times during the term of this Lease, Tenant shall keep
in force at its sole cost and expense, fire insurance and "All Risk"
(including vandalism and malicious mischief) in companies acceptable to
Landlord, equal to the replacement cost of Tenant's fixtures, furnishings,
equipment, and contents upon the Leased Premises and all improvements or
additions made by Tenant to the Leased Premises. The Landlord shall be
named as an additional insured on all such policies.
11.2 Liability Insurance. Tenant shall, during the entire term
hereof, keep in full force and effect a policy of public liability and
property damage insurance to include contractual coverage with respect to
the Leased Premises and the business operated by Tenant in the Leased
Premises, with a combined single limit for personal or bodily injury and
property damage of not less than $500,000.00. The policy shall name
Landlord, any person, firms, or corporations designated by Landlord, and
Tenant as insureds, and shall contain a clause that the insurer will not
cancel or materially change the insurance pertaining to the Leased Premises
without first giving Landlord ten (10) days written notice. Tenant shall at
all times during the term hereof provide Landlord with evidence of current
insurance coverage. All public liability, property damage, and other
liability policies shall be written as primary policies, not contributing
with coverage which Landlord may carry.
11.3 Subrogation. Tenant and Landlord each waive its right of
subrogation against each other for any reason whatsoever.
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11.4 Lender. Any mortgage lender interest in any part of the
Building or Improvements may, at Landlord's option, be afforded coverage
under any policy required to be secured by Tenant hereunder, by use of a
mortgagee's endorsement to the policy concerned.
XII. DESTRUCTION
If the Leased Premises shall be partially damaged by any casualty insured
against under any insurance policy maintained by Landlord, Landlord shall, upon
receipt of the insurance proceeds, repair the Leased Premises and until repair
is complete the Basic Annual Rent and Additional Rent shall be abated
proportionately as to that portion of the Leased Premises rendered untenantable.
Notwithstanding the foregoing, if: (a) the Leased Premises by reason of such
occurrence are rendered wholly untenantable, or (b) the Leased Premises should
be damaged as a result of a risk which is not covered by insurance, or (c) the
Leased Premises should be damaged in whole or in part during the last six (6)
months of the term or of any renewal hereof, or (d) the Leased Premises or the
Building (whether the Leased Premises are damaged or not) should be damaged to
the extent of fifty percent (50%) or more of the then-monetary value thereof,
then and in any such events, Landlord may either elect to repair the damage or
may cancel this Lease by notice of cancellation within Ninety (90) days after
such event and thereupon this Lease shall expire, and Tenant shall vacate and
surrender the Leased Premises to Landlord. Tenant's liability for rent upon the
termination of this Lease shall cease as of the day following Landlord's giving
notice of cancellation. In the event Landlord elects to repair any damage, any
abatement of rent shall end five (5) days after notice by Landlord to Tenant
that the Leased Premises have been repaired. If the damage is caused by the
negligence of Tenant or its employees, agents, invitees, or concessionaires,
there shall be no abatement of rent. Unless this Lease is terminated by
Landlord, Tenant shall repair and refixture the interior of the Leased Premises
to the extent of the Tenant Finish in a manner and in at least a condition equal
to that existing prior to the destruction or casualty and the proceeds of all
insurance carried by Tenant on its property and fixtures shall be held in trust
by Tenant for the purpose of said repair and replacement.
XIII.CONDEMNATION
13.1 Total Condemnation. If the whole of the Leased Premises shall
be acquired or taken by condemnation proceeding, then this Lease shall
cease and terminate as of the date of title vesting in such proceeding.
13.2 Partial Condemnation. If any part of the Leased Premises shall
be taken as aforesaid, and such partial taking shall render that portion
not so taken unsuitable for the business of Tenant, then this Lease shall
cease and terminate as aforesaid. If such partial taking is not extensive
enough to render the Leased Premises unsuitable for the business of Tenant,
then this Lease shall continue in effect except that the Basic Annual Rent
and Additional Rent shall be reduced in the same proportion that the
portion of the Leased Premises (including basement, if any) taken bears to
the total area initially demised and Landlord shall, upon receipt of the
award in condemnation, make all necessary repairs or alterations to the
Building in which the Leased Premises are located, provided that Landlord
shall not be required to expend for such work an amount in excess of the
amount received by Landlord as damages for the part of the Leased Premises
to taken. "Amount received by Landlord" shall mean that part of the award
in
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condemnation which is free and clear to Landlord of any collection by
mortgage lenders for the value of the diminished fee.
13.3 Landlord's Option to Terminate. If more than twenty percent
(20%) of the Building shall be taken as aforesaid, Landlord may, by written
notice to Tenant, terminate this Lease. If this Lease is terminated as
provided in this Section, rent shall be paid up to the day that possession
is so taken by public authority and Landlord shall make an equitable refund
of any rent paid by Tenant in advance.
13.4 Award. Tenant shall not be entitled to and expressly waives all
claim to any condemnation award for any taking, whether whole or partial
and whether for diminution in value of the leasehold or to the fee,
although Tenant shall have the right, to the extent that the same shall not
reduce Landlord's award, to claim from the condemnor, but not from the
Landlord, such compensation as may be recoverable by Tenant in its own
right for damages to Tenant's business and fixtures.
13.5 Definition. As used in this Part XIII the term "condemnation
proceeding" means any action or proceeding in which any interest in the
Leased Premises is taken for any public or quasi-public purpose by any
lawful authority through exercise of eminent domain or right of
condemnation or by purchase or otherwise in lieu thereof.
XIV. LANDLORD'S RIGHTS TO CURE
14.1 General Right. In the event of breach, default, or
noncompliance hereunder by Landlord, Tenant shall, before exercising any
right or remedy available to it, give Landlord written notice of the
claimed breach, default, or noncompliance. If prior to its giving such
notice Tenant has been notified in writing (by way of Notice of Assignment
of Rents and Leases, or otherwise) of the address of a lender which has
furnished any of the financing referred to in Part XV hereof, concurrently
with giving the aforesaid notice to Landlord, Tenant shall, by registered
mail, transmit a copy thereof to such lender. For the fifteen (15) days
following the giving of the notice(s) required by the foregoing portion of
this section (or such longer period of time as may be reasonably required
to cure a matter which, due to its nature, cannot reasonably be rectified
within fifteen (15) days), Landlord shall have the right to cure the
breach, default, or noncompliance involved. If Landlord has failed to cure
a default within said period, any such lender shall have an additional
fifteen (15) days within which to cure the same or, if such default cannot
be cured within that period, such additional time as may be necessary if
within such fifteen (15) day period said lender has commenced and is
diligently pursuing the actions or remedies necessary to cure the breach
default, or noncompliance involved (including, but not limited to,
commencement and prosecution of proceedings to foreclose or otherwise
exercise its rights under its mortgage or other security instrument, if
necessary to effect such cure), in which event this Lease shall not be
terminated by Tenant so long as such actions or remedies are being
diligently pursued by said lender.
14.2 Mechanic's Lien. Should any mechanic's or other lien be filed
against the Leased Premises or any part thereof by reason of Tenant's acts
or omissions or because of a
15
claim against Tenant, Tenant shall cause the effect of the same to be
cancelled and discharged or bonded over or otherwise within ten (10) days
after written notice by Landlord.
XV. FINANCING; SUBORDINATION
15.1 Subordination. Tenant acknowledges that it might be
necessary for Landlord or its successors or assigns to secure mortgage
loan financing or refinancing affecting the Leased Premises. Tenant also
acknowledges that the lender interested in any given loan may desire that
Tenant's interest under this Lease be either superior or subordinate to
the mortgage then held or to be taken by said Lender. Accordingly, Tenant
agrees that at the request of Landlord at any time and from time to time
Tenant shall execute and deliver to Landlord an instrument, in form
reasonably acceptable to Landlord, whereby Tenant subordinates its
interest under this Lease and in the Leased Premises to such of the
following encumbrances as may be specified by Landlord: Any mortgage or
trust deed and customary related instruments are herein collectively
referred to merely as a "Mortgage" and securing a loan obtained by
Landlord or its successors or assigns for the purpose of enabling
acquisition of the Building and/or construction of additional
improvements to provide permanent financing for the Building, or for the
purpose of refinancing any such construction, acquisition, standing or
permanent loan. Provided, however, that any such instrument or
subordination executed by Tenant shall provide that so long as Tenant
continues to perform all of its obligations under this Lease its tenancy
shall remain in full force and effect notwithstanding Landlord's default
in connection with the Mortgage concerned or any resulting foreclosure or
sale or transfer in lieu of such proceedings. Tenant shall not
subordinate its interests hereunder or in the Leased Premises to any lien
or encumbrance other than the Mortgages described in and specified
pursuant to this Section 15.1 without the prior written consent of
Landlord and of the lender interested under each mortgage then affecting
the Leased Premises. Any such unauthorized subordination by Tenant shall
be void and of no force or effect whatsoever.
15.2 Attornment. Any sale, assignment, or transfer of Landlord's
interest under this Lease or in the Leased Premises including any such
disposition resulting from Landlord's default under a mortgage, shall be
subject to this Lease and also Tenant shall attorn to Landlord's
successor and assigns and shall recognize such successor or assigns as
Landlord under this Lease, regardless of any rule of law to the contrary
or absence of privity of contract.
15.3 Financial Information. As a condition to Landlord's
acceptance of this Lease, Tenant shall provide financial information
sufficient to verify to Landlord the financial condition of Tenant.
Tenant hereby represents and warrants that none of such information
contains or will contain any untrue statement of material fact, nor will
such information omit any material fact necessary to make the statements
contained therein misleading or unreliable. Any financial information
provided by Tenant shall beheld in confidence and distributed only to
Landlord's investors or lenders for the Leased Premises.
XVI. EVENTS OF DEFAULT; REMEDIES OF LANDLORD
16
16.1 Default by Tenant. Upon the occurrence of any of the
following events, Landlord shall have the remedies set forth in Section
16.2:
(a) Tenant fails to pay any installment of Basic Annual Rent or
Estimated Costs or any other sum due hereunder within ten (10) days
after Tenant receives written notice of rent due.
(b) Tenant fails to perform any other term, condition, or
covenant to be performed by it pursuant to this Lease within ten (10)
days after written notice of such default shall have been given to
Tenant by Landlord or, if cure would reasonably require more than ten
(10) days to complete, if Tenant fails to commence performance within
the ten (10) day period or fails diligently to pursue such cure to
completion.
(c) Tenant shall become bankrupt or insolvent or file any debtor
proceedings or have taken against such party in any court pursuant to
state or federal statute, a petition in bankruptcy or insolvency,
reorganization, or appointment of a receiver or trustee; or Tenant
petitions for or enters into an arrangement; or suffers this Lease to
be taken under a writ of execution.
16.2 Remedies. In the event of any default by Tenant hereunder,
Landlord may at any time, without waiving or limiting any other right
or remedy available to it, terminate Tenant's rights under this Lease
by written notice, reenter and take possession of the Premises by any
lawful means (with or without terminating this Lease), or pursue any
other remedy allowed by law. Tenant agrees to pay to Landlord the cost
of recovering possession of the Premises, all costs of reletting, and
arising out of Tenant's default, including attorneys' fees.
Notwithstanding any reentry, the liability of Tenant for the rent
reserved herein shall not be extinguished for the balance of the Term,
and Tenant agrees to compensate Landlord upon demand for any deficiency
arising from reletting the Premises at a lesser rent than applies under
this Lease.
16.3 Past Due Sums; Penalty. If Tenant fails to pay, when the
same is due and payable, any Basic Annual Rent, Estimated Costs and
electrical charges within ten (10) days after the same is due and
payable, 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 a fluctuating rate equal to two percent (2%) per annum above
the prime rate of interest charged by First Security Bank of Utah, Salt
Lake City, Utah. In addition thereto, Tenant shall pay a sum of two
percent (2%) of such unpaid amounts as a service fee. Notwithstanding
the foregoing, however, Landlord's right concerning such interest and
service fee shall be limited by the maximum amount which may properly
be charged by Landlord for such purposes under applicable law.
XVII. PROVISIONS APPLICABLE AT TERMINATION OF LEASE
17.1 Surrender of Premises. At the expiration of this Lease,
except for changes made by Tenant that were approved by Landlord,
Tenant shall surrender the Leased Premises in the same condition, less
reasonable wear and tear, as they were in upon delivery of possession
17
thereto under this Lease and shall deliver all keys to Landlord. Before
surrendering the Leased Premises, Tenant shall remove all of its personal
property and trade fixtures and such property or the removal thereof shall
in no way damage the Leased Premises, and Tenant shall be responsible for
all costs, expenses and damages incurred in the removal thereof. If Tenant
fails to remove its personal property and fixtures upon the expiration of
this Lease, the same shall be deemed abandoned and shall become the
property of Landlord.
17.2 Holding Over. Any holding over after the expiration of the term
hereof or of any renewal term shall be construed to be a tenancy from
month to month at such rates as Landlord may designate and on the terms
herein specified so far as possible. Landlord may not in any event raise
the rent above 110% of the last month's rent.
XVIII. ATTORNEYS' FEES
In the event that at any time during the term of this Lease either
Landlord or the Tenant institutes any action or proceeding against the other
relating to the provisions of this Lease or any default hereunder, then the
unsuccessful party in such action or proceeding agrees to reimburse the
successful party for the reasonable expenses of such action including reasonable
attorneys' fees, incurred therein by the successful party.
XIX. ESTOPPEL CERTIFICATE
19.1 Landlord's Right to Estoppel Certificate. Tenant shall, within
fifteen (15) days after Landlord's request, execute and deliver to
Landlord a written declaration, in form and substance similar to Exhibit
"D", in recordable form: (1) ratifying this Lease; (2) expressing the
Commencement Date and termination date hereof; (3) certifying that this
Lease is in full force and effect and has not been assigned, modified,
supplemented or amended (except by such writing as shall be stated); (4)
that, if true, all conditions under this Lease to be performed by
Landlord have been satisfied; (5) that there are no defenses or offsets
against the enforcement of this Lease by the Landlord, or stating those
claimed by Tenant; (6) the amount of advance rental, if any, (or none if
such is the case) paid by Tenant; (7) the date to which rental has been
paid; (8) the amount of security deposited with Landlord; and (9) such
other information as Landlord may reasonably request. Landlord's mortgage
lenders and/or purchasers shall be entitled to rely upon such
declaration.
19.2 Effect of Failure to Provide Estoppel Certificate. Tenant's
failure to furnish any Estoppel Certificate within fifteen (15) days
after request therefor shall be deemed a default hereunder and moreover,
it shall be conclusively presumed that: (a) this Lease is in full force
and effect without modification in accordance with the terms set forth in
the request; (b) that there are no unusual breaches or defaults on the
part of the Landlord; and (c) no more than one (1) month's rent has been
paid in advance.
XX. PARKING
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Automobiles of Tenant and all visitors associated with Tenant shall be
parked only within parking areas designated by Landlord for parking. Landlord
or its agents shall, without any liability to Tenant or its occupants, have the
right to cause to be removed any automobile that may be wrongfully parked in a
prohibited or reserved parking area, and Tenant agrees to indemnify, defend and
hold Landlord harmless from and against any and all claims, losses, demands,
damages and liabilities asserted or arising with respect to or in connection
with any such removal of an automobile except due to Landlord's negligence.
Tenant shall from time to time, upon request of Landlord, supply Landlord with a
list of license plate numbers of all automobiles owned by Tenant or its day-to-
day occupant.
XXI. SIGNS, AWNINGS, AND CANOPIES
Tenant shall not place or suffer to be placed or maintained on any exterior
door, wall, or window of the Leased Premises, or elsewhere in the Building, any
sign, awning, marquee, decoration, lettering, attachment, or canopy, or
advertising matter or other thing of any kind, and will not place or maintain
any decoration, lettering, or advertising matter on the glass of any window or
door of the Leased Premises without obtaining the proper authorization from
Salt Lake County prior to installing. Tenant will otherwise be free to
install signage of its choice.
XXII.MISCELLANEOUS PROVISIONS
22.1 No Partnership. Landlord does not by this Lease, in any way or
for any purpose, become a partner or joint venturer of Tenant in the
conduct of its business or otherwise.
22.2 Force Majeure. Landlord shall be excused for the period of any
delay in the performance of any obligations hereunder when prevented from
so doing by cause or causes beyond Landlord's control, including labor
disputes, civil commotion, war, governmental regulations or controls, fire
or other casualty, inability to obtain any material or service, or acts of
God.
22.3 No Waiver. Failure of Landlord or Tenant to insist upon the
strict performance of any provision or to exercise any option hereunder
shall not be deemed a waiver of such breach by Landlord or Tenant. No
provision of this Lease shall be deemed to have been waived unless such
waiver be in writing signed by Landlord or Tenant, as the case may be.
22.4 Notice. Any notice, demand, request, or other instrument which
may be or is required to be given under this Lease shall be (i) given by
facsimile, (ii) delivered in person or (iii) sent by United States
certified or registered mail, postage prepaid and shall be addressed (a) if
to Landlord, at the place specified for payment of rent, and (b) if to
Tenant, either at the Leased Premises or at any other current address for
Tenant which is known to Landlord. Either party may designate such other
address as shall be given by written notice or by facsimile transmission.
19
Landlord: BOYER RESEARCH PARK ASSOCIATES V
C/O THE BOYER COMPANY
127 SOUTH 500 EAST, SUITE 310
SALT LAKE CITY, UTAH 84102 (801) 521-4781/FAX (801) 521-4793
ATTENTION: B. GREG GARDNER
Tenant: MYRIAD GENETICS, INC.
390 WAKARA WAY
SALT LAKE CITY, UTAH 84108 (801) 582-3400/FAX (801) 584-3640
ATTENTION: JAY MOYES
PARSONS, BEHLE & LATIMER
201 SOUTH MAIN
SALT LAKE CITY, UTAH 84111 (801) 532-1234/FAX (801) 536-6111
ATTENTION: JON BUTLER
22.5 Captions; Attachments; Defined Terms.
(a) The captions to the section of this Lease are for convenience of
reference only and shall not be deemed relevant in resolving questions of
construction or interpretation under this Lease.
(b) Exhibits referred to in this Lease, and any addendums and attached to
this Lease shall be deemed to be incorporated in this Lease as though part
thereof.
22.6 Recording. Tenant may record this Lease or a memorandum thereof
with the written consent of Landlord, which consent shall not be unreasonably
withheld. Landlord, at its option and at any time, may file this Lease for
record with the Recorder of the County in which the Building is located.
22.7 Partial Invalidity. If any provision of this Lease or the
application thereof to any person or circumstance shall to any extent be
invalid, the remainder of this Lease or the application of such provision to
persons or circumstances other than those as to which it is held invalid shall
not be affected thereby and each provision of this Lease shall be valid and
enforced to the fullest extent permitted by law.
22.8 Broker's Commissions. Tenant represents and warrants that there
are no claims for brokerage commissions or finder's fees in connection with this
Lease and agrees to indemnify Landlord against and hold it harmless from all
liabilities arising from such claim, including any attorneys' fees connected
therewith.
22.9 Tenant Defined: Use of Pronouns. The word "Tenant" shall be
deemed and taken to mean each and every person or party executing this document
as a Tenant herein. If there is more than one person or organization set forth
on the signature line as the Tenant, their liability hereunder shall be joint
and several. If there is more than one Tenant, any notice
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required or permitted by the terms of this Lease may be given by or to any one
thereof, and shall have the same force and effect as if given by or to all
thereof. The use of the neuter singular pronoun to refer to Landlord or Tenant
shall be deemed a proper reference even though Landlord or Tenant may be an
individual, a partnership, a corporation, or a group of two or more individuals
or corporation. The necessary grammatical changes required to make the
provisions of this Lease apply in the plural sense where there is more than one
Landlord or Tenant and to corporations, associations, partnerships, or
individuals, males or females, shall in all instances be assumed as though in
each case fully expressed.
22.10 Provisions Binding, Etc. Except as otherwise provided, all
provisions herein shall be binding upon and shall inure to the benefit of the
parties, their legal representatives, heirs, successors, and assigns. Each
provision to be performed by Tenant shall be construed to be both a covenant and
a condition, and if there shall be more than one Tenant, they shall all be
bound, jointly and severally, by such provisions. In the event of any sale or
assignment (except for purposes of security or collateral) by Landlord of the
Building, the Leased Premises, or this Lease, Landlord shall, from and after the
Commencement Date (irrespective of when such sale or assignment occurs), be
entirely relieved of all of its obligations hereunder.
22.11 Entire Agreement, Etc. This Lease and the Exhibits, Riders,
and/or Addenda, if any, attached hereto, constitute the entire agreement between
the parties. All Exhibits, riders, or addenda mentioned in this Lease are
incorporated herein by reference. Any prior conversations or writings are
merged herein and extinguished. No subsequent amendment to this Lease shall be
binding upon Landlord or Tenant unless reduced to writing and signed.
Submission of this Lease for examination does not constitute an option for the
Leased Premises and becomes effective as a lease only upon execution and
delivery thereof by Landlord to Tenant. If any provision contained in the rider
or addenda is inconsistent with a provision in the body of this Lease, the
provision contained in said rider or addenda shall control. The captions and
Section numbers appearing herein are inserted only as a matter of convenience
and are not intended to define, limit, construe, or describe the scope or intent
of any section or paragraph.
22.12 Governing Law. The interpretation of this Lease shall be
governed by the laws of the State of Utah. The parties hereto expressly and
irrevocably agree that either party may bring any action or claim to enforce the
provisions of this Lease in the State of Utah, County of Salt Lake, and each
party irrevocably consents to personal jurisdiction in the State of Utah for the
purposes of any such action or claim. Each party further irrevocably consents
to service of process in accordance with the provisions of the laws of the State
of Utah. Nothing herein shall be deemed to preclude or prevent the parties
hereto from bringing any action or claim to enforce the provisions of this Lease
in any other appropriate place or forum.
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IN WITNESS WHEREOF, the Landlord and Tenant have executed this Lease on the
day first set forth above.
LANDLORD: BOYER RESEARCH PARK ASSOCIATES V, BY
ITS GENERAL PARTNER, THE BOYER
COMPANY, L.C.
By /s/ Ken Gardner
--------------------------------------------------
KEM C. GARDNER
PRESIDENT AND MANAGER
TENANT: MYRIAD GENETICS, INC.
By /s/ Jay M. Moyes
--------------------------------------------------
Its Vice President of Finance
--------------------------------------------------
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NOTARY
STATE OF UTAH )
) ss
COUNTY OF SALT LAKE )
On this 12th day of October, 1995, personally appeared
before me KEM C. GARDNER, who duly acknowledged to me that he executed the
foregoing Lease as the PRESIDENT AND MANAGER OF BOYER RESEARCH PARK ASSOCIATES
V, BY ITS GENERAL PARTNER, THE BOYER COMPANY, L. C., A UTAH LIMITED LIABILITY
COMPANY.
/s/ Deniese D. Balli
My commission Expires: -----------------------------------
Notary Public
4/28/97 Residing at SALT LAKE COUNTY
23
STATE OF UTAH )
) ss
COUNTY OF SALT LAKE )
On this 12th of October, 1995, personally appeared before me Jay M. Moyes
who being duly sworn, did say that he is the Vice President of Finance of Myriad
Genetics, Inc. a Utah Corporation, and that the foregoing resolution of its
Board of Directors, and said Jay M. Moyes acknowledged to me that said
corporation executed the same.
My Commission Expires: /s/ Deniese D. Balli
April 28, 1997 ----------------------------------------
______________________ Notary Public
Residing at Salt Lake County
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This Rider is Incorporated into the Lease Agreement and Made a Part Thereof
A. Right to Lease Additional Space
-------------------------------
1. Tenant shall have the exclusive right to lease the approximate 3,610
square feet remaining on Floor One of the building on or before six
months after Lease execution on the same terms and conditions as
contained in the Lease including additional parking at a rate of
3.5/1000. Tenant shall notify Landlord of its intent to exercise this
right by written notice. Landlord shall amend the Lease to reflect the
addition of such space to the Lease Premises together with any other
revisions necessary because of such additional space being added to the
original lease premises. If Tenant fails to notify Landlord before the
three month period has elapsed, then Landlord may be free to lease the
space to a third party.
2. Tenant shall have the exclusive right to lease the Third Floor of the
building containing approximately 14,043 rentable square feet on or
before six months after Lease execution on the same terms and
conditions excepting rent which shall be at $15.00 NNN per rentable
square foot annually. Tenant shall notify Landlord of its intent to
exercise this right by written notice. Landlord shall amend the Lease
to reflect the addition of such space to the Leased Premises together
with any other revisions necessary because of such additional space
being added to the original lease premises. If Tenant fails to notify
Landlord before the six month period has elapsed, then Landlord may be
free to lease the space to a third party.
B. Ongoing Right of First Refusal
------------------------------
If, prior to the expiration or sooner termination of this Lease, any space
in the building becomes vacant and available for lease during this Lease Term,
Landlord shall notify Tenant of its availability in writing and Tenant shall
have seven (7) business days from the receipt date of Landlord's notice to
Tenant to advise Landlord in writing that Tenant accepts such space offered, in
its present condition, and agrees that it shall become a part of the Leased
Premises. The Base Rent for the space offered, and the approximate dates
possession is to be delivered shall be included in Landlord's notice to Tenant.
Tenant's obligation to commence payment of Base Rent shall occur on the earlier
of the date possession is delivered to Tenant by Landlord or Tenant occupies all
or a portion of such space and shall continue until the expiration or sooner
termination of the Lease. Any additional rental obligation of Tenant contained
in the Lease and based upon the relationship of area of the Premises to the
rentable area of the Building pursuant to Section 4.1(d) shall be adjusted to
reflect the increase in the area of the Premises. Prior to delivery of
possession Tenant shall execute an amendment to this Lease reflecting the
addition to the Premises, the additional Base Rental, the change in ratio of the
Leased Premises to the Building area and any other revisions necessary because
of such additional space being added to the original Premises. All other terms
and conditions of this Lease shall apply to the additional Premises.
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C. New Building
------------
1. If Tenant exercises the option set forth in this paragraph, Landlord
hereby agrees to construct an additional building with approximately
43,726 gross rentable square feet and related improvements upon the
additional property which is also the subject of the Ground Lease
between Landlord and the University of Utah (the "Additional Property")
which is the subject of the Ground Lease not occupied by the Building
and related improvements (the "New Building"). Such construction shall
commence after Tenant has exercised such option not earlier than two
(2) years following the date of this Agreement (the "Option Term"),
except as otherwise provided in paragraph 2 hereof. Landlord hereby
grants Tenant an option and right of first refusal to lease, at
Tenant's discretion, not less than 50% but up to 100% of the rentable
space in the New Building (the "Option Space") upon the terms set forth
in this paragraph 1. Within 18 months following the date of this
Agreement, Landlord shall provide Tenant a reasonably detailed written
summary of the proposed size, configuration and placement of the New
Building. Tenant shall have two (2) years from the date of this
Agreement to notify Landlord in writing (the "Option Notice") of its
intent to exercise its option to lease a portion of the Option Space
(the "New Space") specifying the percentage or equivalent square
footage of the Option Space which Tenant wishes to occupy. Upon the
giving of the Option Notice, Landlord and Tenant shall promptly enter
into good faith negotiations to complete a mutually acceptable lease
agreement for the New Space (the "New Lease"). The New Lease shall be
substantially identical in form to this Agreement as of the date of the
Option Notice and shall further provide that Tenant's annual lease rate
per square foot for the New Space shall be equal to 13% of the actual
Total Project Cost (as defined in Section E 3(b) of this Rider) to
build and develop the New Building, multiplied by a fraction, the
numerator of which is the gross rentable square footage of the New
Space, and the denominator of which is the total gross rentable square
footage of the New Building. Pursuant to the New Lease Tenant shall
have a right of first refusal to lease all additional portions of the
New Building not included within the New Space as the same become
available, and according to terms substantially identical to the terms
of the New Lease.
2. Notwithstanding the foregoing, Tenant shall be entitled to extend the
Option Term for one year provided that Tenant agrees to pay that
portion of the monthly ground lease due pursuant to that certain Ground
Lease Agreement between Landlord and the University of Utah which is
attributable to that portion of the Additional Property where the New
Building will be constructed.
D. Tenant's Right of First Refusal to Purchase Building
----------------------------------------------------
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Landlord grants to Tenant the right of first refusal exercisable after the
Commencement Date during the term of the Lease to purchase the Building (the
"Right of First Refusal"). If at any time after the Commencement Date during
the term of this Lease Landlord shall desire to accept an offer from a third
person to purchase the Building, it shall provide written notice of such intent
to Tenant together with a copy of the offer. Tenant shall have twenty (20) days
to elect to purchase the Building strictly upon the terms and conditions,
including price, as set forth in the offer. If Tenant does not timely exercise
the Right of First Refusal, this Right of First Refusal shall expire and
Landlord may thereafter sell the Building upon terms and conditions, including
price, which are not more favorable to the buyer that is set forth in the offer.
This Right of First Refusal shall not apply to a foreclosure sale, trustee's
sale or deed in lieu of foreclosure by or to a mortgage lender in respect of the
Building.
E. Tenant's Option to Purchase Building
------------------------------------
1. Commencing as of the Commencement Date and continuing throughout the
term of the Lease, Tenant shall have the right and option to purchase
all of Landlord's right, title and interest in the Building upon the
terms and conditions set forth in this portion of the Rider (the
"Purchase Option"). To exercise this Purchase Option, tenant shall give
written notice of exercise to Landlord in the manner provided in the
Lease. Tenant may exercise the Purchase Option only if no default, or
circumstance which with the giving of notice and/or the passage of time
would constitute a default, is then existing.
2. The Purchase Price which Tenant shall pay to Landlord for its entire
right, title and interest in the Building (the "Purchase Price") shall
be the sum of the following:
(a) The amount of any prepayment fee, premium or similar charge
incurred by Landlord in discharging any lien or encumbrance which
secures any monetary obligation on the Building.
(b) The greater of:
(i) the Fair Market Value (as defined below); and
(ii) one hundred and six percent (106%) of the Total Project Cost
(as defined below).
3. For purposes of this Purchase Option, the following terms shall have
the meanings set forth:
(a) "Fair Market Value" means the value of the Building as agreed upon
in writing by Landlord and Tenant or, if the Landlord and Tenant
cannot agree upon such value within thirty (30) days after the
Tenant exercises the
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Purchase Option, then either Landlord or Tenant may nominate three
(3) qualified, independent appraisers to appraise the Building,
each of whom shall:
(i) be a member in good standing of the Utah Chapter of the
Appraisal Institute;
(ii) be state certified under the Utah Real Estate Appraiser
Registration and Certification Act; and
(iii) shall have not less than five (5) years of experience
valuing office buildings in Salt Lake County, Utah.
The other party shall then select one (1) of the nominated
appraisers to perform an appraisal to determine the Fair Market
Value of the Building. The costs and fees of the appraiser shall be
paid in equal shares by Landlord and Tenant. In determining the
Fair Market Value it shall be assumed that all liens and
encumbrances securing obligations to pay loans or other fixed or
determinable sums have been discharged.
(b) "Total Project Cost" means any and all "hard" and "soft" direct
costs and expenditures incurred by Landlord at any time in
connection with the acquisition, design or construction of the
Building, including, without limitation:
(i) all payments or obligations incurred to general and other
contractors;
(ii) all architectural, engineering and other professional fees
incurred;
(iii) all permit and license fees and other charges of
governmental authorities incurred;
(iv) all cost and expense of insurance incurred prior to the
Commencement Date;
(v) all cost incurred prior to the Commencement Date in
connection with or arising from the ground lease including,
without limitation, legal fees and survey costs;
(vi) all legal and accounting fees incurred which are
attributable to the development and construction of the
Building;
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(vii) all cost incurred in connection with or arising from or in
connection with construction financing including, without
limitation, legal fees and survey costs; and
(viii) all real estate taxes and assessments (or equivalent
privilege tax), utility charges and similar costs and
expenses in respect of the Building incurred prior to the
Commencement Date.
4. The closing, pursuant to the Purchase Option, shall occur thirty (30)
days after the Purchase Price is determined. At the closing:
(a) Tenant shall pay the Purchase Price in cash.
(b) Landlord shall convey title to the Building to Tenant by special
warranty deed and shall be obligated to provide at Landlord's cost
a standard owner's policy of title insurance.
(c) Landlord shall discharge all liens and encumbrances securing
obligations to pay loans or other fixed or determinable sums or
obligations owing to mechanics or materialmen. Tenant shall take
the Building subject to all other encumbrances and exceptions of
record.
(d) Landlord shall represent and warrant to the best of its knowledge
as to customary matters involving the condition of the Building.
(e) Each of the parties shall bear its costs and attorneys' fees in
connection with the exercise and closing under the Purchase Option;
provided, Landlord shall pay the premium on the policy of title
insurance delivered to Tenant, and Landlord and Tenant shall each
pay one-half ( 1/2) of the fees of the escrow agent.
5. If the Tenant exercises the Purchase Option but timely fails to close
for any reason other than the fault of Landlord, the Purchase Option
shall thereafter expire and shall no longer be enforceable.
6. Landlord and Tenant shall jointly record a notice of this Purchase
Option and of the Right of First Refusal.
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