Exhibit 10.32
LEASE AGREEMENT
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LANDLORD:
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BOYER RESEARCH PARK ASSOCIATES IX, BY ITS
GENERAL PARTNER, THE BOYER COMPANY, L. C.
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TENANT:
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MYRIAD
GENETICS, INC. PHASE V
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TABLE OF CONTENTS
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PAGE
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I.
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PREMISES
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1
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1.1
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Description of Premises
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1
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1.2
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Work of Improvement
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1
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1.3
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Construction of Shell Building
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2
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1.4
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Construction of Leased Premises
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2
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II.
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TERM
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2
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2.1
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Length of Term
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2
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2.2
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Commencement Date; Obligation to Pay
Rent
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2
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2.3
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Option to Extend
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3
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2.4
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Acknowledgment of Commencement Date
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3
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III.
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BASIC RENTAL
PAYMENTS
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3
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3.1
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Basic Annual Rent
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3
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3.2
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Additional Monetary Obligations
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4
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IV.
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ADDITIONAL
RENT
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4
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4.1
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Basic Annual Rent
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4
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4.2
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Report of Basic Costs and Statement of
Estimated Costs
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5
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4.3
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Payment of Additional Rent
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6
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4.4
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Resolution of Disagreement
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6
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4.5
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Limitations
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6
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V.
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SECURITY
DEPOSIT
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7
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VI.
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USE
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7
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6.1
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Use of Leased Premises
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7
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6.2
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Prohibition of Certain Activities or
Uses
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7
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6.3
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Affirmative Obligations with Respect to
Use
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7
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6.4
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Suitability
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8
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6.5
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Taxes
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8
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VII.
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UTILITIES AND
SERVICES
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8
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7.1
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Obligation of Landlord
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8
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7.2
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Tenant’s Obligations
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8
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7.3
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Additional Limitations
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8
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7.4
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Limitation on Landlord’s
Liability
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8
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VIII.
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MAINTENANCE AND
REPAIRS; ALTERATIONS; ACCESS
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9
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8.1
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Maintenance and Repairs by Landlord
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9
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8.2
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Maintenance and Repairs by Tenant
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9
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8.3
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Tenant Approval of Management and Maintenance
Services
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9
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PAGE
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8.4
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Alterations
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9
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8.5
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Landlord’s Access to Leased
Premises
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10
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IX.
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ASSIGNMENT
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10
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9.1
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Assignment Prohibited
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10
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9.2
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Consent Required
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11
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9.3
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Landlord’s Right in Event of
Assignment
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11
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9.4
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Tenant’s Right to Assign
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11
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X.
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INDEMNITY
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12
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10.1
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Indemnification
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12
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10.2
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Release of Landlord
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12
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10.3
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Notice
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13
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10.4
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Litigation
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13
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XI.
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INSURANCE
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13
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11.1
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Fire and
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13
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11.2
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Liability Insurance
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13
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11.3
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Property Coverage
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13
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11.4
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Subrogation
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13
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11.5
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Lender
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13
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XII.
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DESTRUCTION
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14
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XIII.
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CONDEMNATION
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14
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13.1
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Total Condemnation
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14
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13.2
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Partial Condemnation
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14
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13.3
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Landlord’s Option to Terminate
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15
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13.4
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Award
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15
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13.5
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Definition
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15
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XIV.
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LANDLORD’S RIGHTS TO CURE
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15
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14.1
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General Right
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15
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14.2
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Mechanic’s Lien
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15
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XV.
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FINANCING; SUBORDINATION
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16
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15.1
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Subordination
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16
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15.2
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Attornment
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16
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15.3
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Financial Information
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16
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XVI.
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EVENTS OF DEFAULT; REMEDIES OF
LANDLORD
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16
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16.1
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Default by Tenant
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16
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16.2
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Remedies
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17
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16.3
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Past Due Sums; Penalty
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17
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PAGE
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XVII.
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PROVISIONS APPLICABLE AT TERMINATION OF
LEASE
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17
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17.1
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Surrender of Premises
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17
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17.2
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Holding Over
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18
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XVIII.
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ATTORNEYS’ FEES
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18
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XIX.
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ESTOPPEL CERTIFICATE
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18
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19.1
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Landlord’s Right to Estoppel
Certificate
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18
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19.2
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Effect of Failure to Provide Estoppel
Certificate
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18
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XX.
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PARKING
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18
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XXI.
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SIGNS, AWNINGS, AND CANOPIES
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19
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XXII.
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MISCELLANEOUS PROVISIONS
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19
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22.1
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No Partnership
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22.2
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Force Majeure
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19
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22.3
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No Waiver
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19
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22.4
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Notice
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19
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22.5
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Captions; Attachments; Defined Terms
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20
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22.6
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Recording
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20
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22.7
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Partial Invalidity
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20
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22.8
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Broker’s Commissions
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20
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22.9
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Tenant Defined: Use of Pronouns
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20
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22.10
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Provisions Binding, Etc.
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21
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22.11
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Entire Agreement, Etc.
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21
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22.12
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Governing Law
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21
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22.13
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Written Assurances
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21
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22.14
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Base Rent Reconciliation
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22
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22.15
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Approval of Land Lease
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22
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PAGE
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EXHIBIT “A”
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DESCRIPTION OF REAL PROPERTY
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25
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EXHIBIT “B”
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PLANS AND SPECIFICATIONS OF BUILDING
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26
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EXHIBIT “C”
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WORK LETTER-CONSTRUCTION AND/OR FINISH OF
IMPROVEMENTS TO LEASED PREMISES
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27
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EXHIBIT “D”
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ACKNOWLEDGMENT OF COMMENCEMENT DATE &
ESTOPPEL CERTIFICATE
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31
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EXHIBIT “E”
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COST TO CONSTRUCT LEASED PREMISES
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33
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EXHIBIT “F”
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COST TO CONSTRUCT CORE AND SHELL
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34
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EXHIBIT “G”
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IMPROVEMENT REMOVAL AGREEMENT
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35
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LEASE AGREEMENT
RESEARCH PARK BUILDING - PHASE
V
THIS LEASE AGREEMENT
(the “Lease”) is made and entered into as of this
11 th day of March, 2008 by and
between BOYER RESEARCH PARK ASSOCIATES IX, BY ITS GENERAL
PARTNER, THE BOYER COMPANY, L.C. (the
“Landlord”), and MYRIAD GENETICS, INC. (the
“Tenant”).
For and in consideration of the
rental to be paid by Tenant and of the covenants and agreements
herein set forth to be kept and performed by Tenant, Landlord
hereby leases to Tenant and Tenant hereby leases from Landlord, the
Leased Premises (as hereafter defined), at the rental and subject
to and upon all of the terms, covenants and agreements hereinafter
set forth.
I. PREMISES
1.1 Description of Premises.
Landlord does hereby demise, lease and let unto Tenant, and Tenant
does hereby take and receive from Landlord the
following:
(a) That certain floor area
containing approximately 87,000 gross rentable square feet (the
“Leased Premises”), more particularly, 30,675 gross
rentable square feet on Floor One, 26,886 gross rentable square
feet on Floor Two, 22,261 gross rentable square feet on level
three, 7,178 gross rentable square feet of Mechanical, Electrical
and of storage space in the three story office building (the
“Building”) located at approximately 300 South Chipeta
Way in Salt Lake City, Utah, on the real property (the
“Property”) described on Exhibit “A”
attached hereto and by this reference incorporated herein. The
Building to be constructed is described on the Plans and
Specifications attached as Exhibit “B.”
(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 Two
Hundred Eight (208) designated stalls in the parking structure
under the building for which Tenant shall pay Landlord the sum of
$36,250.00 per month and shall be subject to annual adjustments as
specified in Section 3.1 of the Lease.
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 is 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
1.3 Construction of Shell Building.
Landlord shall, at its own cost and expense, construct and complete
a three story 87,000 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 (including the
Tenant Finish 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’s occupancy as soon
as reasonably possible, but in no event later than Eighteen months
from Landlord’s receipt of a building permit. (“Target
Date”). In the event that Landlord’s construction
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.
1.4 Construction of Leased Premises.
Upon completion of Tenant Finish plans as contemplated by Exhibit
“C,” Landlord shall provide a budget for Tenant’s
approval 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. Tenant
shall be obligated for all costs shown on Exhibit “E”.
Upon acceptance by Tenant of the budget, Landlord shall construct
in accordance with Exhibit “C” all items pertaining to
the Tenant Finish, including the obligation to pay for all cost
changes not initiated by Tenant.
II. TERM
2.1 Length of Term. The term of this
Lease shall be for a period of fifteen (15) 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.
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
that the Leased Premises are ready for occupancy. 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
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.
2
2.3 Option to Extend. Landlord
grants Tenant the right to extend this Lease for two additional
periods of five years each by giving Landlord six (6) months
prior written notice. All terms and conditions of the Lease during
the extension terms shall remain the same, with the exception the
new Basic Annual Rent for each renewal period shall be Fair Market
Rental (as defined herein).
For purposes of this
Section 2.3, Fair Market Rental shall mean the rental rate for
premises then being leased in other comparable first class
multi-story office buildings in University of Utah Research Park
and said rate shall take into account all relevant facts and
circumstances including but not limited to the term, prevailing
rents, tenant improvement contributions and other concessions and
shall take into account any brokerage commissions payable in
connection with such leases.
2.4 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 Two Million Ninety Nine Thousand Six Hundred Seventy
Four dollars and no/100 (2,099,674.00). Said Basic Annual Rent
shall be due and payable in twelve (12) equal monthly
installments to be paid in advance on or before the first day of
each calendar month during the term of the Lease. Basic Annual Rent
shall escalate at the beginning of the fourth year and every three
(3) years thereafter using either a 3% annually compounded
rate or the change in the All Urban Index, whichever is less (each
such anniversary being referred to as an “adjustment
date”). 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 (1982-1984 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 third month preceding the month in which the Lease
commences shall be considered the Basic Price Index. Therefore, the
beginning of the fourth year and every three years thereafter, the
Basic Annual Rent set forth in this Section 3.1 shall be
adjusted by multiplying such rental by a fraction, the numerator of
which is the Price Index for the third month preceding the
beginning of the anniversary (or each such adjustment date) and the
denominator of which is the Basic Price Index.
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
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 1.4 of this Lease or similar provisions
of leases with other tenants. In explanation of the foregoing, and
not in limitation thereof, Basic Costs shall include: all real and
personal property taxes and assessments (whether general or
special, known or unknown, foreseen or unforeseen) and any tax or
assessment levied or charged in lieu thereof, whether assessed
against Landlord and/or Tenant and whether collected from Landlord
and/or Tenant; snow removal, trash removal, supplies, insurance,
license, permit and inspection fees, cost of services of
independent contractors, cost of compensation (including employment
taxes and fringe benefits) of all persons who perform regular and
recurring duties connected with day-to-day operation, maintenance,
repair, and replacement of the Building, its equipment and the
adjacent walk, and landscaped area (including, but not limited to
janitorial, scavenger, gardening, security, parking, elevator,
painting, plumbing, electrical, mechanical, carpentry, window
washing, structural and roof repairs), land lease payments to the
University Research Park 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 tenant, 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
4
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 (if Landlord is responsible to
provide this service), 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 one percent
(1%) of the sum of Basic Annual Rent, Estimated Costs and cost
of electricity for the Leased Premises.
(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 $343,998.00, and are
not included in the Basic Annual Rent. If the Estimated Costs as of
the date Tenant takes occupancy are greater than Tenant’s
Estimated Costs at the time this Lease is executed, the Estimated
Costs shall be increased to equal the Estimated Costs as of the
date of Tenant’s occupancy.
(d) “Tenant’s
Proportionate Share of Basic Costs” shall mean the percentage
derived from the fraction, the numerator of which is the gross
rentable square footage of the Lease Premises (87,000), the
denominator of which is the gross rentable square footage of the
building (87,000). In this Lease, Tenant’s Proportionate
Share of Basic Costs 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
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calendar year.
4.3 Payment of Additional Rent.
Tenant shall pay as additional rent (“Additional Rent”)
Tenant’s Direct Costs and Tenant’s Proportionate Share
of Basic Costs. The Additional Rent shall be paid as
follows:
(a) With each monthly payment of
Basic Annual Rent due pursuant to Section 3.1 above, Tenant
shall pay to Landlord, without offset or deduction, onetwelfth
(1/12th) 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 commercial
laboratory, pharmaceutical research and development, 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.
(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
7
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 hereunder 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 ninety (90) 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
SERVICES
7.1 Obligation of Landlord. During
the term of this Lease the Landlord and Tenant agree that following
Landlord’s construction and installation of the base
Mechanical, Electrical and Elevator systems in the Building per the
plans and specifications, Tenant shall manage the periodic
maintenance and pay for all expenses related thereto for the term
of the Lease. Tenant further agrees to manage the janitorial
service, security system, snow removal service, landscaping and
grounds keeping services and elevator service within the Building
and pay for the expense thereof through the term of the
Lease.
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
8
reduction of rent by reason of
Landlord’s failure to provide or furnish any of the foregoing
utilities or services if such failure was reasonably beyond the
control of Landlord. In no event shall Landlord be liable for loss
or injury to persons or property, however, arising or occurring in
connection with or attributable to any failure to furnish such
utilities or services even if within the control of Landlord,
except in the event of Landlord’s negligence or intentional
conduct.
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 1.4 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, 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 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
9
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, wall covering, 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 listed
on Exhibit G.
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
therefore without the same constituting an actual or constructive
eviction of Tenant in whole or in part and the rents reserved
herein shall in no wise abate while said work is in progress by
reason of loss or interruption of Tenant’s business or
otherwise, and Tenant shall have no claim for damages unless due to
Landlord negligence. During the three (3) months prior to
expiration of this Lease or of any renewal term, Landlord may place
upon the Leased Premises “For Lease” or “For
Sale” signs which Tenant shall permit to remain
thereon.
IX. ASSIGNMENT
9.1 Assignment Prohibited. Tenant
shall not transfer, assign, mortgage, or hypothecate this Lease, in
whole or in part, or permit the use of the Leased Premises by any
person or persons other than Tenant, or sublet the Leased Premises,
or any part thereof, without the prior written consent of Landlord
in each instance, which consent shall not be unreasonably withheld,
provided sufficient information is provided to Landlord to
accurately represent the financial condition of those to whom this
Lease will be transferred, assigned, mortgaged, or hypothecated.
Such prohibition against assigning or subletting shall include any
assignment or 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
10
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 1990” or similar
state or local laws relating to persons with disabilities beyond
those requirements which are applicable to the tenant desiring to
so sublease or assign”.
9.3 Landlord’s Right in Event
of Assignment. If this Lease is assigned or if the Leased Premises
or any portion thereof are sublet or occupied by any person other
than the Tenant, Landlord may collect rent and other charges from
such assignee or other party, and apply the amount collected to the
rent and other charges reserved hereunder, but such collection
shall not constitute consent or waiver of the necessity of consent
to such assignment, subleasing, or other transfer, nor shall such
collection constitute the recognition of such assignee, sublessee,
or other party as the Tenant hereunder or a release of Tenant from
the further performance of all of the covenants and obligations,
including obligation to pay rent, of Tenant herein contained. In
the event that Landlord shall consent to a sublease or assignment
hereunder, Tenant shall pay to Landlord reasonable fees, not to
exceed $100.00, incurred in connection with processing of documents
necessary to the giving of such consent. In the event Landlord
consents to the assignment as provided by paragraph 9.1, then
Tenant shall be released from further performance of any covenant
and obligation under this Lease.
9.4 Tenant’s Right to Assign.
For purposes of this Section 9.4, the term
“Leases” means this Lease and the following four
(4) lease agreements: (i) that certain Lease Agreement
dated October 12, 1995 between Boyer-Foothill Associates,
Ltd., as Landlord, and Tenant; and (ii) that certain Lease
Agreement dated March 1, 1998 between Landlord and Tenant,
a