Exhibit 10.44
LEASE AGREEMENT
LANDLORD: XXXXX RESEARCH PARK ASSOCIATES VI,
BY ITS GENERAL PARTNER, THE XXXXX COMPANY, L.C.
TENANT: MYRIAD GENETICS, INC.
TABLE OF CONTENTS
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DESCRIPTION PAGE
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I. PREMISES 2
1.1 Description of Premises 2
1.2 Work of Improvement 2
1.3 Construction of Shell Building 3
II. TERM 3
2.1 Length of Term 3
2.2 Commencement Date; Obligation to Pay Rent 3
2.3 Construction of Leased Premises 4
2.4 Renewal Option 4
2.5 Acknowledgment of Commencement Date 4
III. BASIC RENTAL PAYMENTS 4
3.1 Basic Annual Rent 4
3.2 Additional Monetary Obligations 5
IV. ADDITIONAL RENT 5
4.1 Basic Annual Rent. 5
4.2 Report of Basic Costs and Statement of Estimated Costs 7
4.3 Payment of Additional Rent 7
4.4 Resolution of Disagreement 8
4.5 Limitations 8
V. SECURITY DEPOSIT 9
VI. USE 9
6.1 Use of Leased Premises 9
6.2 Prohibition of Certain Activities or Uses 9
6.3 Affirmative Obligations with Respect to Use 9
6.4 Suitability 10
6.5 Taxes 10
VII. UTILITIES AND SERVICE 10
7.1 Obligation of Landlord 10
7.2 Tenant's Obligations 11
7.3 Additional Limitations 11
7.4 Limitation on Landlord's Liability 11
DESCRIPTION PAGE
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VIII. MAINTENANCE AND REPAIRS; ALTERATIONS; ACCESS 12
8.1 Maintenance and Repairs by Landlord 12
8.2 Maintenance and Repairs by Tenant 12
8.3 Tenant Approval of Management and Maintenance Services 12
8.4 Alterations 12
8.5 Landlord's Access to Leased Premises 13
IX. ASSIGNMENT 13
9.1 Assignment Prohibited 14
9.2 Consent Required 14
9.3 Landlord's Right in Event of Assignment 14
X. INDEMNITY 15
10.1 Indemnification By Tenant 15
10.2 Release of Landlord 15
10.3 Notice 15
10.4 Litigation 15
XI. INSURANCE 15
11.1 Fire and 15
11.2 Liability Insurance 16
11.3 Subrogation 16
11.4 Lender 16
XII. DESTRUCTION 16
XIII. CONDEMNATION 17
13.1 Total Condemnation 17
13.2 Partial Condemnation 17
13.3 Landlord's Option to Terminate 17
13.4 Award 17
13.5 Definition 18
XIV. LANDLORD'S RIGHTS TO CURE 18
14.1 General Right 18
14.2 Mechanic's Lien 18
XV. FINANCING; SUBORDINATION 18
15.1 Subordination 19
15.2 Attornment 19
15.3 Financial Information 19
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DESCRIPTION PAGE
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XVI. EVENTS OF DEFAULT; REMEDIES OF LANDLORD 20
16.1 Default by Tenant 20
16.2 Remedies 20
16.3 Past Due Sums; Penalty 20
XVII. PROVISIONS APPLICABLE AT TERMINATION OF LEASE 21
17.1 Surrender of Premises 21
17.2 Holding Over 21
XVIII. ATTORNEYS' FEES 21
XIX. ESTOPPEL CERTIFICATE 21
19.1 Landlord's Right to Estoppel Certificate 21
19.2 Effect of Failure to Provide Estoppel Certificate 22
XX. PARKING 22
XXI. SIGNS, AWNINGS, AND CANOPIES 22
XXII. MISCELLANEOUS PROVISIONS 22
22.1 No Partnership 22
22.2 Force Majeure 22
22.3 No Waiver 23
22.4 Notice 23
22.5 Captions; Attachments; Defined Terms 23
22.6 Recording 24
22.7 Partial Invalidity 24
22.8 Broker's Commissions 24
22.9 Tenant Defined: Use of Pronouns 24
22.10 Provisions Binding, Etc. 24
22.11 Entire Agreement, Etc. 25
22.12 Governing Law 25
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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 X
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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" BUILDING STANDARD FINISHES
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LEASE AGREEMENT
RESEARCH PARK BUILDING - PHASE II
THIS LEASE AGREEMENT (the "Lease") is made and entered into as of this
6th day of March, 1998 by and between XXXXX RESEARCH PARK ASSOCIATES VI, BY ITS
GENERAL PARTNER, THE XXXXX 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 48,635
gross rentable square feet (the "Leased Premises"), more particularly,
15,221 gross rentable square feet on Floor One, 15,492 gross rentable
square feet on Floor Two, 15,492 gross rentable square feet on the Floor
Three, and 2,230 gross rentable square feet in the basement of the 48,635
gross rentable square feet three story office building (the "Building")
located at approximately 000 Xxxxxx Xxx 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
One Hundred Six (106) parking stalls.
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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 48,635 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 April 1, 1999 ("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 punch
list items can be completed within fifteen (15) days and will not
materially
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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
$955,878.00 ($22.00 per usable square foot multiplied by 43,449 usable
square feet) 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. 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 irrevocable.
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 Six Hundred Seventy-Nine Thousand Nine Hundred
Seventeen and 30/100 Dollars ($679,917.30). 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
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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.
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.
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 pro-rata 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
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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 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
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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 xxxxxxxx
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. The Estimated Costs for the calendar year in
which the Lease commences are $218,857.50, 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 (48,635), the denominator of
which is the gross rentable square footage of the building (48,635). In
this Lease, Tenant's pro-rata share shall be 100% of the Basic Costs for
the Leased Premises.
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.
(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:
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(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.
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.
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V. SECURITY DEPOSIT
Waived
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).
(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.
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(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.
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).
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(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 Leased
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, 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
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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 or exterior lighting,
plumbing fixtures, or shades or awnings, or make
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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 xxxxx 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
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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
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
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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 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
15
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 $1,000,000.00. 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.
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
16
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 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
17
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 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
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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.
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XVI. EVENTS OF DEFAULT; REMEDIES OF LANDLORD
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
20
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 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
21
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
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.
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
22
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.
Landlord: XXXXX RESEARCH PARK ASSOCIATES VI
C/O THE XXXXX COMPANY
000 XXXXX 000 XXXX, XXXXX 000
XXXX XXXX XXXX, XXXX 00000 000) 000-0000/FAX (000) 000-0000
ATTENTION: B. XXXX XXXXXXX
Tenant: MYRIAD GENETICS, INC.
320 WAKARA WAY
SALT LAKE CITY, UTAH 00000 (000) 000-0000/FAX (000) 000-0000
ATTENTION: XXX XXXXX
XXXXXXX, XXXXX & XXXXXXX
201 SOUTH MAIN
SALT LAKE CITY, UTAH 00000 (000) 000-0000/FAX (000) 000-0000
ATTENTION: XXX XXXXXX
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.
23
(b) Exhibits referred to in this Lease, and any addendums and
schedules 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 and Landlord represent and
warrant to each other that there are no claims for brokerage commissions or
finder's fees in connection with this Lease and agree to indemnify each
other against and hold them 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 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 a sale or assignment (except for purposes of security or collateral) by
Landlord of all of (i) the Building, (ii) the Leased Premises, or (iii)
this Lease, to an
24
unrelated third party (the "Buyer") reasonably acceptable to Tenant,
Landlord shall, from and after the date of such sale or assignment, be
entirely relieved of all of its obligations under this Lease, provided that
(i) such Buyer fully assumes all of the obligations of Landlord under this
Lease, and (ii) Tenant's rights and benefits under this Lease continue in
full force and effect following the date of such sale or assignment.
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.
22.13 Ground Lease Notice. Landlord shall provide notice to Tenant
within three (3) business days of the occurrence of either of the
following under the ground lease pursuant to which Landlord leases the
Property described on Exhibit "A" and/or the documents evidencing a
construction or a permanent loan secured by the Property: (i) an event of
default on the part of Landlord or (ii) Landlord's receipt of notice that
(A) Landlord is in default under such documents or (B) that with the
passage of time Landlord will be in default under such documents.
25
IN WITNESS WHEREOF, the Landlord and Tenant have executed this Lease on
the day first set forth above.
LANDLORD: XXXXX RESEARCH PARK ASSOCIATES VI, BY ITS GENERAL
PARTNER, THE XXXXX COMPANY, L.C.
By /s/ H. Xxxxx Xxxxx
-------------------------------------------------
H. XXXXX XXXXX
CHAIRMAN AND MANAGER
TENANT: MYRIAD GENETICS, INC.
By /s/ Xxx X. Xxxxx
------------------------------------------------
Its
26
NOTARY
STATE OF UTAH )
) ss
COUNTY OF SALT LAKE )
On this 9th day of March, 1998, personally appeared before me H. XXXXX
XXXXX, who duly acknowledged to me that he executed the foregoing Lease as the
CHAIRMAN AND MANAGER of XXXXX RESEARCH PARK ASSOCIATES VI, BY ITS MANAGING
PARTNER, THE XXXXX COMPANY, L. C., A UTAH LIMITED LIABILITY COMPANY.
My commission Expires: /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Notary Public
4/28/01 Residing at SALT LAKE COUNTY
STATE OF )
) ss
COUNTY OF )
This foregoing instrument was acknowledged before me this _____day of
_______________, 199___, by ______________________, the manager of
_____________________________________, a _____________ limited liability
company.
My Commission Expires: --------------------------------------
Notary Public
______________________ Residing at
---------------------------
STATE OF )
) ss
COUNTY OF )
On this____ day of ________________, 19____,___________________personally
appeared before me, one of the signers of the foregoing Lease, who duly
acknowledged to me that he executed the same.
My Commission Expires: --------------------------------------
Notary Public
_____________________ Residing at
---------------------------
27
STATE OF
--------------- )
) ss
COUNTY OF
-------------- )
On this_____ day of ______________________, 19 , personally appeared
before me who duly acknowledged to me_______________who duly acknowledged to me
that he executed the foregoing Lease as one of the ______ Partners in _________,
a _________________ Partnership.
My Commission Expires:
-----------------------------------
_____________________ Notary Public
Residing at
------------------------
STATE OF UTAH )
) ss
COUNTY OF SALT LAKE )
On this 6th day of March, 1998, personally appeared before me Xxx Xxxxx,
who being duly sworn, did say that he is the C.F.O. of Myriad Genetics, Inc., a
Delaware Corporation, and that said instrument was signed in behalf of said
corporation by authority of its by-laws or a resolution of its Board of
Directors.
My Commission Expires:
/s/ Xxxxxxx Xxxxx
-------------------------------------
August 30, 1999 Notary Public
Residing at Myriad Genetics, Inc.
28
THIS RIDER IS INCORPORATED INTO THE LEASE AGREEMENT AND MADE A PART THEREOF
A. TENANT'S RIGHT OF FIRST REFUSAL TO PURCHASE BUILDING
----------------------------------------------------
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.
If Landlord does not close the sale of the Building to such third person,
Tenant's Right of First Refusal shall continue. 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.
B. 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).
R-1
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 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
R-2
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;
(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.
R-3
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
-----------------------------
A parcel of land which is located within the Northwest quarter of Section 0,
Xxxxxxxx 0 Xxxxx, Xxxxx 1 East, Salt Lake Base and Meridian, said parcel being
more particularly described as follows:
A. Beginning at a point which is North 82 17'08" West 53.33 feet from a Salt
Lake City Monument in the intersection of Wakara Way (2235 East) and Colorow
Drive (2410 East) using as a basis of bearing the Salt Lake City Monument in the
intersection of Xxxxx Xxxx (2330 East) and Colorow Drive (2410 East) which
bearing is South 35 21'39" East, which beginning point is on the right-of-way
corner of Wakara Way and is also North 42 32'38" West 3908.91 feet from the
Xxxxxxxxx Xxxxxx xx Xxxxxxx 0, X0X, X0X, SLB&M; running thence North 44 13'33"
West 16.63 feet; thence North 4545'00" East 16.74 feet; thence North 4415'00"
West 171.77 feet; thence North 4545'00" East 21.15 feet; thence 4415'00" West
70.99 feet; thence North 4545'00" East 327.50 feet; thence South 6742'00" East
18.27 feet to a non-radial curve with a radius of 225.00 feet, which radius
bears South 6750'48" East; thence southerly along said curve a distance of
171.88 feet to a reverse curve, with a radius of 200.00 feet, which radius bears
Xxxxx 0000'00" Xxxx; thence southwesterly along said curve 232.67 feet; thence
South 4545'00" West 72.97 feet to the point of beginning. Containing 1.41
acres.
B. Together with the following parcel beginning at a point which is North
8217'08" West 53.33 feet and South 4545'00" West 73.93 feet from a Salt Lake
City Monument in the intersection of Wakara Way (2235 East) and Colorow Drive
(2410 East) using as a basis of bearing the Salt Lake City Monument in the
intersection of Xxxxx Xxxx (2330 East) and Colorow Drive (2410 East) which
bearing is South 3521'39" East, which beginning point is on the right-of-way
corner of Wakara Way and is also North 4232'38" West 3908.91 feet and North
8217'08" West 53.33 feet and South 4545'00" West 73.93 feet from the Xxxxxxxxx
Xxxxxx xx Xxxxxxx 0, X0X, X0X, SLB&M and running thence South 4545'00" West
162.31 feet; thence North 4415'00" West 64.26 feet; thence North 0045'00" East
143.01 feet; thence North 4545'00" East 61.19 feet; thence South 4415'00" East
165.39 feet to the point of beginning. Containing 0.50 acres.
A-1
EXHIBIT "C"
WORK LETTER
-----------
CONSTRUCTION AND/OR FINISHING OF
IMPROVEMENTS TO LEASED PREMISES
In accordance with the provisions of the body of the Lease to which this
Exhibit "C" is attached, the improvements to the Leased Premises shall be
constructed and/or finished (as the case may be) in the manner described, and
upon all of the terms and conditions contained in the following portion of this
Exhibit "C".
I. CONSTRUCTION OF PHASE I BUILDING ("THE BUILDING"):
-------------------------------------------------
A. Landlord agrees to erect at its sole cost and expense, the
Building. Landlord shall build-out and finish the Leased Premises according to
Tenant's plans and specifications at Tenant's cost and expense. The Building
and the Leased Premises shall be constructed in a good and workmanlike manner,
with any change orders thereto approved by Landlord and Tenant with respect to
the Leased Premises pursuant to Article B below, and in compliance with all
applicable laws and ordinances. Preliminary Plans shall provide for a
completely finished building, of a type and quality that is consistent with
newly constructed first-class office buildings in the Salt Lake City, Utah area,
and shall include site plans showing all driveways, sidewalks, parking areas
that provide parking in an amount equal to three (3) cars for every 1,000 Usable
Square Feet in the Building, landscaping and other site improvements. Without
limiting the generality of the foregoing, Preliminary Plans shall provide for a
three (3) story building containing 48,635 rentable square feet of space and
shall be generally consistent with the conceptual plans and drawings attached
hereto as Exhibit "B" and incorporated herein (the "Conceptual Drawings"). The
build-out and interior finish work within the Leased Premises shall be in
accordance with plans and specifications that shall be prepared by Landlord's
architect, Xxxxxx Haslem Xxxxxxxx & Xxxxxxxxxx Architects, and engineers
("Tenant Finish Plans"). Tenant Finish Plans shall be prepared in accordance
with the time periods set forth to meet a April 1, 1999 Target Date. The Target
Date shall be extended by any period of Tenant's delay in providing decisions
that need to be made in connection with the preparation of Tenant Finish Plans.
B. Tenant may make changes to Final Plans only if Tenant signs a
change order requesting the change and then only if Landlord approves the change
by signing the change order, which approval shall not be unreasonably withheld,
conditioned, or delayed. Landlord shall notify Tenant in writing, within five
(5) business days of Tenant's change order request, of its approval or detailed
reason of its disapproval of such change order and a good faith estimate of the
actual cost of such change order and any delay to the Target Date or in
achieving substantial completion that would result therefrom. Tenant may,
within five (5) business days of its receipt of such estimate, elect to rescind
its request for such change order upon written notice to Landlord. Landlord may
require changes in Final Plans only if Landlord and Tenant sign a change order.
The cost of any change orders that are necessary to comply with applicable
building codes and other laws shall be borne by Landlord, unless such change
orders are necessitated only because of (1) other change orders requested by
Tenant; (2) Tenant Finish Plans; (3) changes to Tenant Finish Plans; or (4)
Tenant's early occupancy to the Building prior to substantial completion of
Landlord's Work. Any change order shall be effective only when set forth on a
written change order executed by Landlord, Tenant, and the Base Building General
Contractor. By approving a change order, Tenant and Landlord shall agree to a
delay in Substantial Completion and to the Target Date, as specified therein, if
any.
Tenant shall furnish Landlord with a written list of Tenant's authorized
construction representatives for Landlord's Work. Only such construction
representatives are authorized to sign any
change order, receipt, or other document on behalf of Tenant related to
Landlord's Work, and without the signature of any one of such authorized
construction representatives, no such document shall be binding upon Tenant.
Tenant may, from time to time, change or add to the list of authorized
construction representatives by giving Landlord written notice of the addition
or change. Landlord's authorized representative shall be B. Xxxx Xxxxxxx, and
until changed by written notice from Landlord to Tenant, only B. Xxxx Xxxxxxx
shall be authorized to sign change orders, receipts, or other documents on
behalf of Landlord related to Landlord's Work.
C. The Building Work shall be performed by a general contractor
selected by Landlord (the "Base Building General Contractor").
D. Landlord will cause Contractor to provide, at Contractor's
expense, an Owner's Protective Liability (OPL) Policy acceptable to Tenant. The
Owner's Protective Liability Policy shall name Myriad Genetics, Inc. as the
Named Insured. The policy will be provided by an insurance company rated A,
Class XV or better by Best's Key Rating Guide system. The policy will maintain
a limit of liability of not less than five million dollars ($5,000,000.00).
Such insurance policy must be in force prior to the commencement of construction
operation of any kind. The Contractor will also insure the Building at
Contractor's expense during the course of construction in an amount equal to or
greater than the value of the construction. Insurance coverage shall be
provided by an insurance company rated A, Class XV or better by Best's Key
Rating Guide system. Insurance coverage shall be provided on a coverage form
equal to or more comprehensive than Insurance Services Office (U.S.A.) Special
form. Such insurance policy must be in force prior to construction operations
of any kind.
II. TENANT FINISH PLANS:
-------------------
A. Landlord shall cause Xxxxxx Xxxxxx Xxxxxxxx & Xxxxxxxxxx
Architects (the "Architect") to prepare plans and specifications for the
interior improvement of the Building and the Leased Premises as necessary to
render the Leased Premises in first-class condition and suitable for the conduct
of Tenant's business (such improvement being referred to herein as the "Tenant
Finish"). Landlord shall require the Architect to meet periodically with Tenant
in connection with the preparation of the plans and, upon Landlord's approval
thereof (which approval shall not be unreasonably withheld), to incorporate
Tenant's requested features and specifications into the plans. Landlord shall
submit a complete draft of the plans to Tenant by June 1, 1998 (the "Base Line
Date"). Tenant shall within seven (7) days after the plans are submitted to
them, either approve the plans in writing or submit to Landlord a written
itemization of all objections which Tenant may have to the plans. If Tenant
approves the plans, the plans shall be deemed final. If Tenant submits to
Landlord a written itemization of objections to the plans, Landlord and Tenant
shall negotiate in good faith to resolve Tenant's objections to their mutual
satisfaction. If Landlord and Tenant are able to resolve all of Tenant's
objections to their mutual satisfaction, then Landlord and Tenant shall each
approve the plans as modified to incorporate the resolution of Tenant's
objections and the plans as so modified shall be deemed final.
B. Changes to Plans. After the plans are deemed final, the plans
----------------
shall not be subject to further change except as provided under this Paragraph.
If either Landlord or Tenant desires any change to the plans after they are
deemed final, it shall submit to the other for approval (which approval shall
not be unreasonably withheld) a proposed change order, in writing, setting forth
the change. Thereupon the other party shall either approve the proposed change
order or notify the party submitting the proposed change order of its reason for
withholding such approval, within two (2) business days after receipt of the
proposed change order for approval. Without limiting the reasons for which
approval of any proposed change order may be reasonably withheld, approval shall
be deemed to have been reasonably withheld if the proposed change (1) would
result in additional construction maintenance repair or replacement costs which
could not be fully borne by the party proposing the change, (2) would result in
a violation of any applicable law, regulation, ordinance or code, or (3) in the
case of a change proposed by Landlord would materially reduce the usable area of
the Building or would materially
C-2
adversely affect the aesthetics of the Leased Premises or the usability thereof
for the conduct of Tenant's business. Upon approval of any proposed change order
pursuant to this Paragraph, Landlord shall cause the plans and construction
contracts to be modified or amended as necessary to reflect such change order.
C. Landlord's Construction Responsibilities. Landlord shall be
----------------------------------------
fully responsible for the installation and construction of Tenant Finish,
including, without limitation, the following: (1) the obtaining of all building
and sign permits, licenses and other approvals required to construct the Tenant
Finish; (2) the management and supervision of all architects, contractors,
subcontractors and material providers participating in the construction of the
Tenant Improvements; (3) all necessary coordination with governmental entities
having jurisdiction over the Lease Premises and utility companies; (4)
enforcement of construction contracts; (5) security with respect to the Leased
Premises during the construction period; (6) quality control and inspection of
work; (7) construction clean up and refuse disposal; (8) construction timetables
and deadlines as necessary to comply with the Lease; (9) compliance with
applicable laws, regulations, ordinances and codes; and (10) all other matters
relating to the construction of the Tenant Improvements, except as otherwise
expressly provided in the Lease. Landlord represents and covenants that upon the
completion of the Tenant Improvements, the Leased Premises shall conform to the
Tenant Finish Plans and shall be in compliance with all applicable laws,
regulations, ordinances, and codes, including, without limitation, applicable
building codes and environmental laws. Tenant shall be entitled at any time
during the construction period to inspect the construction of the Tenant
Improvements, provided that such inspection does not unreasonably interfere with
the construction of the Tenant Improvements. No failure of Tenant to conduct
such inspections or to discover or assert any defect in connection therewith
shall constitute a waiver by Tenant of, or preclude Tenant from thereafter
asserting, any rights it may have with respect to any representation, warranty
or covenant made by Landlord with respect to the Leased Premises or the Tenant
Finish.
D. Construction Contracts. Landlord, in its reasonable discretion,
----------------------
may act as general contractor with respect to, or install and construct using
its own personnel, all or portions of the Tenant Improvements, provided,
however, Landlord shall contract with and use licensed, qualified and reputable
companies or persons for the performance of all such work to the extent Landlord
is not licensed and fully qualified to perform the same. Landlord shall be
entitled to select all contractors and material providers to perform work with
respect to the Tenant Improvements which Landlord does not elect to perform
directly and to negotiate the terms and conditions of the contracts with such
contractors and material providers. Notwithstanding Paragraphs C and D, Tenant
may choose its own contractor to perform Landlord's work pursuant to Paragraphs
C and D.
E. Warranty. Unless Tenant substitutes the contractor pursuant to
--------
Paragraph D above, Landlord warrants to Tenant for one (1) year after the
Commencement Date of the Lease, that Tenant Finish shall be completed by
Landlord in a good and workmanlike manner, free from faulty materials, in
accordance with all applicable legal requirements, and sound engineering
standards, and in accordance with the Final Plans and Tenant Finish Plans. Such
warranty includes, without limitation, the repair or replacement (including
labor), for one (1) year at Landlord's sole cost, of all materials, fixtures and
equipment which are defective or which are defectively installed by Landlord or
its agents in connection with Landlord's Work. In addition, Landlord shall
obtain manufacturer's warranties, including, without limitation, for air
conditioner, compressors, and the roof of the Building.
F. Payment of Tenant Finish Allowance: Landlord shall pay an
----------------------------------
allowance ("Tenant Finish Allowance") of $22.00 per usable square foot which
shall be applied toward the total construction cost of the Tenant Finish. Unless
Tenant substitutes its own contractor pursuant to Paragraph D above, Tenant
shall pay to Landlord any amount by which the total construction cost of the
Tenant Finish exceeds the allowance. Any amounts payable by Tenant under this
Paragraph shall be paid by Tenant to Landlord on a monthly, progress payment
basis, based on the percentage of the Tenant Finish that has been completed to
date, as evidenced by a certificate to that effect from Landlord's architect,
together
C-3
with copies of paid invoices and/or such other evidence as Tenant shall
reasonably require.
G. Commencement Date Agreement. When the Commencement Date has
---------------------------
been determined, Landlord and Tenant shall execute Exhibit D (attached)
expressly confirming the Commencement Date and the expiration date of the
Initial Term of this Lease and confirming, to the best knowledge of Tenant and
Landlord, that Substantial Completion has occurred.
H. Tenant's Construction Obligations. Tenant shall be fully
---------------------------------
responsible for the installation of all of Tenant's trade fixtures, equipment,
furnishings or decorations, except to the extent such installation is
contemplated or provided for in the Plans. Landlord shall provide Tenant
reasonable access to the Leased Premises for such purposes.
C-4
ACKNOWLEDGMENT OF COMMENCEMENT DATE
AND TENANT ESTOPPEL CERTIFICATE
TO: DATE:
RE:
--------------------------------------------------------------------
--------------------------------------------------------------------
--------------------------------------------------------------------
--------------------------------------------------------------------
Gentlemen:
The undersigned, as Tenant, has been advised that the Lease has been or
will be assigned to you as a result of your financing of the above-referenced
property, and as an inducement therefor hereby confirms the following:
1. That it has accepted possession and is in full occupancy of the Premises,
that the Lease is in full force and effect, that Tenant has received no
notice of any default of any of its obligations under the Lease, and that
the Lease Commencement Date is _______________________________________.
2. That the improvements and space required to be furnished according to the
Lease have been completed and paid for in all respects, and that to the
best of its knowledge, Landlord has fulfilled all of its duties under the
terms, covenants and obligations of the Lease and is not currently in
default thereunder.
3. That the Lease has not been modified, altered, or amended, and represents
the entire agreement of the parties, except as follows:
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
__________________________________________________________________
D-1
4. That there are no offsets, counterclaims or credits against rentals, nor
have rentals been prepaid or forgiven, except as provided by the terms of
the Lease.
5. That said rental payments commenced or will commence to accrue on
_____________, and the Lease term expires ___________________________. The
amount of the security deposit and all other deposits paid to Landlord is
$__________________.
6. That Tenant has no actual notice of a prior assignment, hypothecation or
pledge of rents of the Lease, except:
__________________________________________
___________________________________________________________________________
______________________.
7. That this letter shall inure to your benefit and to the benefit of your
successors and assigns, and shall be binding upon Tenant and Tenant's
heirs, personal representatives, successors and assigns. This letter shall
not be deemed to alter or modify any of the terms, covenants or obligations
of the Lease.
The above statements are made with the understanding that you will rely on
them in connection with the purchase of the above-referenced property.
Very truly yours,
_________________________________________
Date of Signature: _____________ By:
______________________________________
D-2
E X H I B I T "E"
------------------
COST TO CONSTRUCT LEASED PREMISES
---------------------------------
TENANT: MYRIAD GENETICS, INC.
DATE:
SQUARE FOOTAGE:
ITEM COST ESTIMATE
---- -------------
l. Building Permit $______________
2. Mechanical _______________
3. Electrical _______________
4. Walls _______________
5. Doors, Frames, Hardware _______________
6. Painting _______________
7. Floorcovering _______________
8. Base _______________
9. Ceiling _______________
10. Glass _______________
11. Exterior Blinds _______________
12. Millwork _______________
13. Plumbing _______________
14. Clean Up _______________
15. Contingency _______________
16. Supervision _______________
17. Architect _______________
18. Engineer _______________
19. Other _______________
Shelving _______________
Wallcovering _______________
Stain of Woodwork, etc. _______________
TOTAL COST $______________
LANDLORD ALLOWANCE
(Section 2.3) $ 955,878.00
---------------
TENANT CONSTRUCTION
COST OBLIGATION $______________
E X H I B I T "F"
----------------
IMPROVEMENT REMOVAL AGREEMENT
Landlord and Tenant agree that the following may be removed by Tenant at
end of the term or at Landlord's election, Tenant will sell to Landlord at a
mutually agreeable price the following:
1. Built-in Cabinets and Lab Benches
2. Dark Room Door
3. Fume Hoods
4. DI Water System and Fixtures
5. DI Reservoir Tanks
6. LAN Hub
7. Telephone and Computer Equipment
8. Lab Plumbing Fixtures Including Gas and Vacuum Connections
