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LEASE AGREEMENT

Lease Agreement

LEASE AGREEMENT | Document Parties: MYRIAD GENETICS INC | BOYER COMPANY, LC You are currently viewing:
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MYRIAD GENETICS INC | BOYER COMPANY, LC

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Title: LEASE AGREEMENT
Date: 8/28/2008
Industry: Biotechnology and Drugs     Sector: Healthcare

LEASE AGREEMENT, Parties: myriad genetics inc , boyer company  lc
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Exhibit 10.32

LEASE AGREEMENT

 

 

 

 

LANDLORD:

  

BOYER RESEARCH PARK ASSOCIATES IX, BY ITS GENERAL PARTNER, THE BOYER COMPANY, L. C.

 

 

TENANT:

  

MYRIAD GENETICS, INC. PHASE V


TABLE OF CONTENTS

 

 

 

 

 

 

 

 

DESCRIPTION

  

PAGE

I.

  

PREMISES

  

1

 

  

1.1

  

Description of Premises

  

1

 

  

1.2

  

Work of Improvement

  

1

 

  

1.3

  

Construction of Shell Building

  

2

 

  

1.4

  

Construction of Leased Premises

  

2

 

 

 

II.

  

TERM

  

2

 

  

2.1

  

Length of Term

  

2

 

  

2.2

  

Commencement Date; Obligation to Pay Rent

  

2

 

  

2.3

  

Option to Extend

  

3

 

  

2.4

  

Acknowledgment of Commencement Date

  

3

 

 

 

III.

  

BASIC RENTAL PAYMENTS

  

3

 

  

3.1

  

Basic Annual Rent

  

3

 

  

3.2

  

Additional Monetary Obligations

  

4

 

 

 

IV.

  

ADDITIONAL RENT

  

4

 

  

4.1

  

Basic Annual Rent

  

4

 

  

4.2

  

Report of Basic Costs and Statement of Estimated Costs

  

5

 

  

4.3

  

Payment of Additional Rent

  

6

 

  

4.4

  

Resolution of Disagreement

  

6

 

  

4.5

  

Limitations

  

6

 

 

 

V.

  

SECURITY DEPOSIT

  

7

 

 

 

VI.

  

USE

  

7

 

  

6.1

  

Use of Leased Premises

  

7

 

  

6.2

  

Prohibition of Certain Activities or Uses

  

7

 

  

6.3

  

Affirmative Obligations with Respect to Use

  

7

 

  

6.4

  

Suitability

  

8

 

  

6.5

  

Taxes

  

8

 

 

 

VII.

  

UTILITIES AND SERVICES

  

8

 

  

7.1

  

Obligation of Landlord

  

8

 

  

7.2

  

Tenant’s Obligations

  

8

 

  

7.3

  

Additional Limitations

  

8

 

  

7.4

  

Limitation on Landlord’s Liability

  

8

 

 

 

VIII.

  

MAINTENANCE AND REPAIRS; ALTERATIONS; ACCESS

  

9

 

  

8.1

  

Maintenance and Repairs by Landlord

  

9

 

  

8.2

  

Maintenance and Repairs by Tenant

  

9

 

  

8.3

  

Tenant Approval of Management and Maintenance Services

  

9


 

 

 

 

 

 

 

DESCRIPTION

  

PAGE

 

  

8.4

  

Alterations

  

9

 

  

8.5

  

Landlord’s Access to Leased Premises

  

10

 

 

 

IX.

  

ASSIGNMENT

  

10

 

  

9.1

  

Assignment Prohibited

  

10

 

  

9.2

  

Consent Required

  

11

 

  

9.3

  

Landlord’s Right in Event of Assignment

  

11

 

  

9.4

  

Tenant’s Right to Assign

  

11

 

 

 

X.

  

INDEMNITY

  

12

 

  

10.1

  

Indemnification

  

12

 

  

10.2

  

Release of Landlord

  

12

 

  

10.3

  

Notice

  

13

 

  

10.4

  

Litigation

  

13

 

 

 

XI.

  

INSURANCE

  

13

 

  

11.1

  

Fire and

  

13

 

  

11.2

  

Liability Insurance

  

13

 

  

11.3

  

Property Coverage

  

13

 

  

11.4

  

Subrogation

  

13

 

  

11.5

  

Lender

  

13

 

 

 

XII.

  

DESTRUCTION

  

14

 

 

 

XIII.

  

CONDEMNATION

  

14

 

  

13.1

  

Total Condemnation

  

14

 

  

13.2

  

Partial Condemnation

  

14

 

  

13.3

  

Landlord’s Option to Terminate

  

15

 

  

13.4

  

Award

  

15

 

  

13.5

  

Definition

  

15

 

 

 

XIV.

  

LANDLORD’S RIGHTS TO CURE

  

15

 

  

14.1

  

General Right

  

15

 

  

14.2

  

Mechanic’s Lien

  

15

 

 

 

XV.

  

FINANCING; SUBORDINATION

  

16

 

  

15.1

  

Subordination

  

16

 

  

15.2

  

Attornment

  

16

 

  

15.3

  

Financial Information

  

16

 

 

 

XVI.

  

EVENTS OF DEFAULT; REMEDIES OF LANDLORD

  

16

 

  

16.1

  

Default by Tenant

  

16

 

  

16.2

  

Remedies

  

17

 

  

16.3

  

Past Due Sums; Penalty

  

17


 

 

 

 

 

 

 

DESCRIPTION

  

PAGE

XVII.

  

PROVISIONS APPLICABLE AT TERMINATION OF LEASE

  

17

 

  

17.1

  

Surrender of Premises

  

17

 

  

17.2

  

Holding Over

  

18

 

 

 

XVIII.

  

ATTORNEYS’ FEES

  

18

 

 

 

XIX.

  

ESTOPPEL CERTIFICATE

  

18

 

  

19.1

  

Landlord’s Right to Estoppel Certificate

  

18

 

  

19.2

  

Effect of Failure to Provide Estoppel Certificate

  

18

 

 

 

XX.

  

PARKING

  

18

 

 

 

XXI.

  

SIGNS, AWNINGS, AND CANOPIES

  

19

 

 

 

XXII.

  

MISCELLANEOUS PROVISIONS

  

19

 

  

22.1

  

No Partnership

  

19

 

  

22.2

  

Force Majeure

  

19

 

  

22.3

  

No Waiver

  

19

 

  

22.4

  

Notice

  

19

 

  

22.5

  

Captions; Attachments; Defined Terms

  

20

 

  

22.6

  

Recording

  

20

 

  

22.7

  

Partial Invalidity

  

20

 

  

22.8

  

Broker’s Commissions

  

20

 

  

22.9

  

Tenant Defined: Use of Pronouns

  

20

 

  

22.10

  

Provisions Binding, Etc.

  

21

 

  

22.11

  

Entire Agreement, Etc.

  

21

 

  

22.12

  

Governing Law

  

21

 

  

22.13

  

Written Assurances

  

21

 

  

22.14

  

Base Rent Reconciliation

  

22

 

  

22.15

  

Approval of Land Lease

  

22


 

 

 

 

 

DESCRIPTION

  

PAGE

EXHIBIT “A”

  

DESCRIPTION OF REAL PROPERTY

  

25

EXHIBIT “B”

  

PLANS AND SPECIFICATIONS OF BUILDING

  

26

EXHIBIT “C”

  

WORK LETTER-CONSTRUCTION AND/OR FINISH OF IMPROVEMENTS TO LEASED PREMISES

  

27

EXHIBIT “D”

  

ACKNOWLEDGMENT OF COMMENCEMENT DATE & ESTOPPEL CERTIFICATE

  

31

EXHIBIT “E”

  

COST TO CONSTRUCT LEASED PREMISES

  

33

EXHIBIT “F”

  

COST TO CONSTRUCT CORE AND SHELL

  

34

EXHIBIT “G”

  

IMPROVEMENT REMOVAL AGREEMENT

  

35


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.

 

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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).

 

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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

 

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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

 

5


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

 

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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

 

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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


 
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