Polarityte (RGTPQ) 8-KEntry into a Material Definitive Agreement

Exhibit 10.2

ADDENDUM TO

PURCHASE AND SALE AGREEMENT

THIS ADDENDUM (the “Addendum”) to the Purchase and Sale Agreement dated October 25, 2021, as amended by Amendment No. 1 thereto dated March 15, 2022, (“Agreement”), between POLARITYTE, INC., a Delaware corporation (“Seller”), and BCG ACQUISITIONS LLC, a Utah limited liability company and/or assigns (“Buyer”) is made this 9th day of November 2022. Capitalized terms used in this Addendum and not otherwise defined shall have the meaning ascribed thereto in the Agreement.

RECITALS:

WHEREAS, Seller is the purchaser of the Property under the Adcomp Purchase Agreement and, after purchase of the Property from Adcomp, Seller of the Property to Buyer under the Agreement;

WHEREAS, Seller and Buyer wish to provide for an alternative process to facilitate the financing and closing of the transactions described above in keeping with the substance of the Agreement where Buyer or its Affiliate becomes the owner of the Property and Seller leases a portion of the building that is a part of the Property under the terms of the Lease Agreement (the “Result”);

WHEREAS, Seller and Buyer desire for this Addendum to be the first alternative for achieving the Result and reserve as a fallback alternative for achieving the Result (to be elected only upon the mutual approval of both Seller and Buyer) delivery of the instruments and satisfaction of the conditions as set forth in Sections 7, 8 and 9 of the Agreement;

WHEREAS, in furtherance of the transactions contemplated by this Addendum Seller has formed a single member limited liability company under the laws of the State of Utah named “1960 South 4250 West LLC” of which Seller is the sole member (the “Subsidiary”); and

WHEREAS, Buyer is arranging financing from third-party finance or investment companies for the Subsidiary to complete the purchase of the Property under the Adcomp Purchase Agreement, and Buyer is providing such credit enhancements and accommodations necessary to obtain such financing in consideration of the terms of this Addendum that contemplate the Buyer or its assigns acquiring ownership of the Subsidiary concurrently with the Subsidiaries acquisition of the Property from Adcomp (the “Financing Condition”).

NOW, THEREFORE, in consideration of the foregoing, the mutual agreements herein contained and other good and valuable consideration to each of the parties hereto paid by the other, the receipt and sufficiency whereof are hereby acknowledged, it is hereby mutually covenanted and agreed by Seller and Buyer as follows:

1. Closing Extension.

(a) By the execution hereof, Buyer is exercising its election under Section 7(a) of the Agreement to extend the Closing to November 30, 2022, and Buyer is depositing with the Escrow Holder as of the date hereof $50,000 as the Extension Deposit, pursuant to Section 7(a) of the Agreement.

(b) On November 9, 2022, Seller shall give written notice to Adcomp under Section 7(a) of the Adcomp Purchase Agreement of its election to extend the closing of Seller’s purchase of the Property from Adcomp to November 30, 2022, and on the same day Seller shall deposit $50,000 with the Escrow Holder pursuant to Section 7(a) of the Adcomp Purchase Agreement.

2. Loan. On or before November 30, 2022, Buyer will loan to the Seller the difference between $17,500,000 and the amount to be provided by a third-party pursuant to the Financing Condition plus the Seller’s closing costs listed in the closing statement for the purchase of the Property by Seller from Adcomp (the “Loan”), and at the time the Loan is made the Seller will sign and deliver to Buyer the promissory note in the form attached hereto as Exhibit A (the “Note”) and the proceeds of the Loan will be deposited with the Escrow Holder for the account of the Seller and the Subsidiary. That portion of the Loan proceeds equal to the cash required from Seller to close the purchase of the Property by Seller from Adcomp (excluding the loan made pursuant to the Financing Condition, and the deposits held by the Escrow Holder, the security deposit under the lease between Seller and Adcomp applied to the purchase of the Property by Seller from Adcomp) shall represent a capital contribution from the Seller to the Subsidiary and applied by the Subsidiary to the purchase of the Property under the Adcomp Purchase Agreement.

3. Adcomp Purchase Agreement Assignment. On or before November 30, 2022, and before the closing of the sale of the Property by Adcomp under the Adcomp Purchase Agreement, Seller will sign and deliver to Adcomp the assignment of the Adcomp Purchase Agreement from Seller to the Subsidiary in the form attached hereto as Exhibit B (the “Adcomp Assignment”). Pursuant to the Adcomp Assignment the Subsidiary will become the purchaser of the Property from Adcomp in accordance with the terms of the Adcomp Purchase Agreement.

4. The Transactions and Closing.

(a) The Seller intends that the Subsidiary shall close the purchase of the Property from Adcomp on November 30, 2022, under the Adcomp Purchase Agreement (the “Adcomp Closing”). If the Adcomp Closing does not occur and the Subsidiary does not acquire the Property, the provisions of Section 5(d) of the Agreement shall apply, and the obligations of the Parties under the Agreement and this Addendum shall terminate; provided, however, that if the Adcomp Closing does not occur because of a failure of the Financing Condition, then Section 4(c) of this Addendum shall apply.

(b) If Seller defaults in its obligations under this Addendum and Section 4(a) above does not apply, Buyer’s sole remedies shall be those stated in Section 13(a) of the Agreement.

(c) If Buyer defaults in its obligations under this Addendum or the Adcomp Closing fails to occur because the Financing Condition does not occur, and Section 4(a) above does not apply for any reason other than a failure of the Financing Condition to occur, Seller’s sole remedies shall be those stated in Section 13(b) of the Agreement and, for the sake of clarity, the Liquidated Damages shall be the sum of the Deposit and the Extension Deposit.

(d) The term “Closing” under the Agreement shall mean as of the date of this Addendum the consummation of the transactions contemplated by this Addendum. On November 30, 2022, immediately following Seller’s purchase of the Property under the Adcomp Purchase Agreement, Seller and Buyer shall sign and deliver the assignment of all the member interest in the Subsidiary in the form attached hereto as Exhibit C (the “Assignment”), which provides for the transfer of all the member interest from Seller to Buyer and that the Assignment is made as payment in full and complete satisfaction of the Note and Loan. Concurrently with the execution and delivery of the Assignment and as a condition of Closing, the Subsidiary and PolarityTE MD, Inc., an Affiliate of Seller, shall sign and deliver the Lease Agreement in the form attached hereto as Exhibit D. The Lease Agreement attached to this Addendum shall replace in its entirety the form of the Lease Agreement attached as “Exhibit E” to the Agreement. Upon completion of the Closing under this Addendum, the Deposit and Extension Deposit held by the Escrow Holder under the Agreement shall be released to Buyer.

(e) The provisions of Section 7, 8, and 9 of the Agreement shall be void as of the time of Closing under Section 4(d), above.

5. Expenses. Each party hereto will pay the expenses incurred by it under or in connection with this Addendum, including counsel fees and expenses of its representatives, whether or not the transactions contemplated by this Addendum is consummated, except as otherwise specifically provided for herein. In any action arising out of this Addendum by Buyer or Seller, the non-prevailing party shall pay the prevailing party’s reasonable attorneys’ fees, costs, and expenses in prosecuting or defending such action.

6. Brokerage. Each party represents and warrants to the other party that no third party broker or finder has been engaged or consulted by such party or through such party’s actions is entitled to compensation as a consequence of this transaction except CBRE, Inc. representing Seller only. Buyer shall pay all commissions owed to such broker, which the parties acknowledge is equal to $181,099.40 and payment of this amount is in in lieu of the payment of any amount as a commission under Section 12 of the Agreement. Each party shall indemnify, defend and hold the other party harmless against any and all claims of any other brokers, finders or the like, claiming any right to commission or compensation by or through acts of such party or such party’s partners, agents or affiliates in connection with this Addendum. These indemnity obligations include all damages, losses, costs, liabilities and expenses, including reasonable attorneys’ fees and litigation costs, which may be incurred by the party being indemnified. The provisions of this Section 6 will survive the expiration or earlier termination of this Addendum.

7. Notices. All notices, demands, consents, approvals, or other communications which are required or desired to be given by either party shall be given in the same manner provided for in Section 18 of the Agreement; provided, however, that the physical address for Buyer is hereby changed to 386 West 500 South, Suite 100, Salt Lake City Utah 84101.

8. Amendment. Neither this Addendum nor any terms or provision hereof may be changed, waived, discharged, or terminated orally, or in any manner other than by an instrument in writing signed by the party against which the enforcement of the change, waiver, discharge termination is sought.

9. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the respective parties, and their respective successors and permitted assigns.

10. Assignment. Seller shall not assign its rights in this Agreement or part thereof, to any other person or entity except with Buyer’s prior written approval, which approval shall not be unreasonably withheld by Seller. Buyer shall not assign its rights in this Agreement or part thereof, other than to an entity that is controlled by the principals of Buyer, except with Seller’s prior written approval, which approval shall not be unreasonably withheld by Seller. The foregoing notwithstanding, Buyer agrees and acknowledges that to the extent Seller deems it prudent or necessary for effectuating the transactions contemplated by this Addendum Seller may assign to the Subsidiary any of Seller’s rights and obligations under the Agreement, provided, however, that no such assignment shall affect any of the rights and obligations of the parties under this Addendum.

11. Governing Law. Irrespective of the place of execution or performance of this Addendum, this Addendum shall be governed by and construed in accordance with the laws of the State of Utah.

12. Construction. This Addendum shall be construed without regard to any assumption or other rule requiring construction against the party causing this Addendum to be drafted. All terms and words used in this Addendum, regardless of the number or gender in which they are used, shall be deemed to include any other number and any other gender as the context may require. The captions of this Addendum are for convenience only and are not to be construed as defining or limiting in any way the scope or intent of any of the provisions hereof. The unenforceability or invalidity of any one or more of the provisions of this Addendum shall not affect the validity or enforceability of any other provisions hereof.

13. Counterparts. This Addendum may be executed in any number of counterparts, each of which shall be deemed to be an original.

14. Recordation and Confidentiality. Neither this Addendum nor any memorandum thereof shall be recorded by either party. Seller and Buyer agree that each of them, including any of their respective agents, representatives or employees, shall use commercially reasonable efforts to keep the contents and terms of this Addendum, and any information relating to the transactions contemplated hereunder in strict confidence, and will not disclose such information to third parties without the other party’s’ prior written consent. Notwithstanding the foregoing, either party may disclose such information to its respective affiliates, investors, lenders, employees, agents, attorneys, or consultants, or as required by law, on the condition that such persons maintain the confidentiality of such information. The provisions of this Section 14 shall survive Closing.

15. Non-Waiver of Rights. No failure or delay of either party in the exercise of any right given to such party hereunder shall constitute a waiver thereof unless the time specified herein for exercise of such right has expired, nor shall any single or partial exercise of any right preclude other or further exercise thereof or of any other right.

16. Further Assurances. Buyer and Seller each agree to execute any and all other documents and to take any further actions reasonably necessary to consummate the transaction contemplated hereby.

17. Waiver of Jury Trial. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE PARTIES HEREBY KNOWINGLY AND UNCONDITIONALLY WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY AND ALL CLAIMS OR CAUSES OF ACTION, OR TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, ARISING FROM OR RELATING TO THIS ADDENDUM. THE PARTIES ACKNOWLEDGE THAT A RIGHT TO A JURY IS A CONSTITUTIONAL RIGHT, THAT THEY HAVE HAD AN OPPORTUNITY TO CONSULT WITH INDEPENDENT COUNSEL, AND THAT THIS JURY WAIVER HAS BEEN ENTERED INTO KNOWINGLY AND VOLUNTARILY BY ALL PARTIES TO THIS AGREEMENT. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.

18. Conflicts. In the event of any conflict or inconsistency between the terms of this Addendum and the terms of the Agreement in connection with the Closing, the terms of this Addendum shall take precedence. To the extent the performance of any obligation under the Agreement not heretofore performed is reasonably necessary to effectuate the Closing and achieve the Result, the parties will perform such obligations as they apply.

[The Signature Page Follows.]

IN WITNESS WHEREOF, the parties have executed this Addendum to the Agreement as of the date first set forth above.

EXHIBIT A

(Form of the Note)

[See Attached.]

Exhibit A to Addendum

PROMISSORY NOTE

FOR VALUE RECEIVED, POLARITYTE, INC., a Delaware corporation (“Maker”), promises to pay to [BCG ACQUISITIONS LLC, a Utah limited liability company] (“Holder”), promptly following Holder’s demand for payment, the sum of [_______________] ($[__________]) together with interest on the unpaid balance outstanding from the date of this Note, at the annual rate equal to [___] percent (__%).

If default occurs in the payment of principal or interest or any part thereof, the holder hereof, at its option and without notice or demand, may declare the entire principal balance due and payable.

If this Note is collected by an attorney after default in the payment of principal or interest, either with or without suit, the undersigned agrees to pay all costs and expenses of collection, including a reasonable attorney’s fee.

The makers, sureties, guarantors, and endorsers hereof severally waive presentment for payment, demand and notice of dishonor and nonpayment of this Note, and consent to any and all extensions of time, renewals, waivers or modifications that may be granted by the holder hereof with respect to the payment or other provisions of this Note, and to the release of any security, or any part thereof, with or without substitution.

This Note shall be construed according to the laws of the State of Utah, without giving effect to conflict of law as principles.

If any provision of this Note is unenforceable, the enforceability of the other provisions shall not be affected, and they shall remain in full force and effect.

This Note may be prepaid at any time, in whole or in part, without premium or penalty.

This Note and the loan of funds pursuant hereto are made pursuant to the Addendum to the Purchase and Sale Agreement between Maker and Holder dated November [  ], 2022 (the “Addendum”), to which the form of this Note is attached as an exhibit, and Holder agrees that this Note may be paid, in full, by Maker for the consideration, in the manner, and on the terms set forth in the Addendum. If this Note is not paid in accordance with the Addendum on or before December 1, 2022, the principal and interest of this Note shall be paid in full on demand of Holder given after that date.

EXHIBIT B

(Form of the Adcomp Assignment)

[See Attached.]

Exhibit B to Addendum

ASSIGNMENT AND ASSUMPTION OF

PURCHASE AND SALE AGREEMENT

This Assignment and Assumption of Purchase and Sale Agreement is made and entered into as of November [__], 2022, by and between POLARITYTE, INC., a Delaware corporation (“Assignor”), and 1960 SOUTH 4250 WEST LLC, a Utah limited liability company (“Assignee”).

A. Assignor and ADCOMP LLC, a Utah limited liability company (“ADCOMP”), entered into that certain Purchase and Sale Agreement dated as of March 14, 2022 (the “Purchase Agreement”), regarding the purchase and sale of the premises located at 1960 South 4250 West, Salt Lake City, Utah (the “Real Property”).

B. Assignor is the sole member of Assignee.

C. Assignor wishes to assign the Agreement to Assignee and Assignee wishes to accept such assignment and assume Assignor’s obligations under the Agreement.

NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth herein, the parties hereby agree as follows:

1. Assignment. Pursuant to Section 21 of the Purchase Agreement, Assignor hereby assigns and transfers to Assignee all of Assignor’s rights, interests, duties, liabilities, and obligations under the Purchase Agreement, including but not limited to, all rights to any earnest Deposit, Extension Deposit, and Security Deposit, all as defined in the Purchase Agreement.

2. Assumption. Assignee assumes all of Assignor’s right, title, and interest in and to the Purchase Agreement and with respect to the Real Property and the Deposit, Extension Deposit, and Security Deposit, including Assignor’s duties, obligations, and liabilities under the Purchase Agreement.

3. Miscellaneous. This Assignment may be executed in counterparts. This Assignment shall be binding upon the parties and their respective successors and assigns. This Assignment shall be governed by and interpreted in accordance with the laws of the State of Utah without reference to its choice-of-law provisions.

[SIGNATURE PAGE FOLLOWS]

IN WITNESS WHEREOF, this Assignment and Assumption Agreement is made and entered into as of the date first set forth above.

EXHIBIT C

(Form of the Assignment)

[See Attached.]

Exhibit C to Addendum

ASSIGNMENT OF MEMBERSHIP INTERESTS

(1960 SOUTH 4250 WEST LLC)

This Assignment of Membership Interests (this “Assignment”), dated November 30, 2022 (the “Effective Date”), is by and between POLARITYTE, INC., a Delaware corporation (“Assignor”), and [BCG ACQUISITIONS LLC, a Utah limited liability company] (“Assignee”).

RECITALS

A. Assignor is the sole member of 1960 South 4250 West LLC, a Utah limited liability company (the “Company”) and holds 100% of the membership interest of the Company (the “Membership Interest”).

B. Assignor and Assignee are parties to the Addendum to the Purchase and Sale Agreement dated November [  ], 2022 (the “Addendum”), to which the form of this Assignment is attached as an exhibit.

C. Pursuant to the Addendum the Assignor and Assignee agreed that Assignor will transfer and assign all of the Membership Interest in the Company to Assignee as consideration for the complete payment and cancellation of the Note (as defined in the Addendum).

AGREEMENT

For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. Assignment. Assignor hereby assigns and transfers to Assignee 100% of its right, title, and interest in and to the Membership Interest, including but not limited to all right, ktitle and interest of the Assignor in the properties, capital, cash flow, and profits and losses of the Company, free and clear of all liens, encumbrances and adverse claims, and Assignee hereby accepts such assignment. Pursuant to this Assignment, Assignee owns 100% of the Company.

2. Satisfaction of Note. This Assignment is accepted by Assignee from Assignor as complete payment and satisfaction of all of Assignor’s obligations under the Note.

3. Representations and Warranties of Assignor. Assignor hereby represents and warrants to Assignee as follows:

(a) Ownership. Assignor is owner of all of the Membership Interest. Assignor has good and marketable title to the Membership Interest, free and clear of any liens, claims, pledges and encumbrances of any kind.

(b) Delivery of Membership Interests. Assignor has full right, power, authority and capacity to transfer and deliver the Membership Interest, delivered, free and clear of any liens, claims, pledges and encumbrances of any kind.

(c) Enforceability. This Assignment has been duly authorized, executed and delivered by Assignor, constitutes a valid and binding obligation of Assignor and is enforceable against Assignor in accordance with its terms.

(d) Consents and Approvals. No consent, approval or authorization of, or declaration, filing or registration with, any governmental or regulatory authority, or any person or entity, is required to be made or obtained by Assignor (which has not already been made or obtained) in connection with the execution, delivery and performance of this Assignment and the consummation of the transactions contemplated hereby.

4. Miscellaneous. This Assignment may be executed in counterparts. This Assignment shall be binding upon the parties and their respective successors and assigns. This Assignment shall be governed by and interpreted in accordance with the laws of the State of Utah without reference to its choice-of-law provisions.

[Signature Page Follows]

Exhibit C to Addendum

IN WITNESS WHEREOF, the parties have executed this Assignment as of the Effective Date.

EXHIBIT D

(Form of the Lease Agreement)

[See Attached.]

LEASE AGREEMENT BETWEEN

1960 SOUTH 4250 WEST LLC,

a Utah limited liability company,

as LANDLORD

AND

POLARITYTE MD, INC.,

a Nevada corporation

as TENANT

DATED December 1, 2022

1960 SOUTH 4250 WEST

SALT LAKE CITY, UTAH

BASIC LEASE INFORMATION

[Remainder of page is intentionally left blank.]

The foregoing Basic Lease Information is incorporated into and made a part of the Lease identified above. If any conflict exists between any Basic Lease Information and the Lease, then the Lease shall control.

TABLE OF CONTENTS

LIST OF DEFINED TERMS

LEASE

This Lease Agreement (this “Lease”) is entered into as of __________________, 2022, between 1960 SOUTH 4250 WEST LLC, a Utah limited liability company (“Landlord”), and POLARITYTE MD, INC., a Nevada corporation (“Tenant”).

1. Definitions and Basic Provisions. The definitions and basic provisions set forth in the Basic Lease Information (the “Basic Lease Information”) executed by Landlord and Tenant contemporaneously herewith are incorporated herein by reference for all purposes. Additionally, the following terms shall have the following meanings when used in this Lease: “Affiliate” means any person or entity which, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with the party in question; “Building’s Structure” means the Building’s exterior walls, roof, elevator shafts, footings, foundations, structural portions of load-bearing walls, structural floors and subfloors, and structural columns and beams; “Building’s Systems” means the Building’s HVAC, life-safety, plumbing, electrical, and mechanical systems; “including” means including, without limitation; “Laws” means all federal, state, and local laws, ordinances, rules and regulations, all court orders, governmental directives, and governmental orders, and all interpretations of the foregoing, and all restrictive covenants affecting this Lease or the Project or Tenant’s use of the Premises for the Permitted Uses, and “Law” means any of the foregoing; “Tenant’s Off-Premises Equipment” means any of Tenant’s equipment or other property that may be located on or about the Project (other than inside the Premises); and “Tenant Party” means any of the following persons: Tenant; any Tenant Affiliates; any assignees claiming by, through, or under Tenant; any subtenants claiming by, through, or under Tenant; and any of their respective agents, contractors, employees, licensees, guests and invitees.

2. Lease Grant; Term. Subject to the terms of this Lease, Landlord leases to Tenant, and Tenant leases from Landlord, the Premises. Additionally, subject to the terms of this Lease and Landlord’s rules and regulations therefor, Tenant and its employees and invitees shall have a non-exclusive license to use, in common with others, any applicable driveways, loading dock areas, roadways, rail tracks and other similar improvements designated by Landlord from time to time as common areas for the common use and enjoyment of all tenants and occupants of the Project.

The term of this Lease shall be for the Lease Term, beginning at 12:00 midnight on the Commencement Date and expiring at 11:59 p.m. on the Expiration Date. Provided Tenant is open and operating in the Premises in accordance with the terms of this Lease and is not then in default of any term, condition or covenant of the Lease beyond any applicable notice or cure period, Tenant shall have the option to extend the Term of this Lease for one (1) additional period of five (5) years as an Option Term (an “Option Term”) only by giving Landlord written notice at least one hundred eighty (180) days prior to the expiration of the initial Term. Notwithstanding any provision of this Lease, if Tenant fails to exercise the extension option by delivering such written notice, such extension option shall forever lapse. All of the terms, covenants, conditions, provisions and agreements applicable to the initial Term shall be applicable to the Option Term, if any, with the adjustment to Rent as identified in the Basic Lease Information above. All references in this Lease to the “Term” or the “Lease Term” shall be deemed to mean the initial Term as extended by the Option Term, if any.

3. Tender of Possession; Early Occupancy Period. Upon the Commencement Date, Tenant will accept the Premises in the manner set forth below, subject to Substantial Completion of the Landlord’s Work and the performance of Punchlist Items (as defined in Exhibit D attached hereto) that remain to be performed by Landlord, if any. Upon the later of Tenant’s acceptance of the Premises and Landlord’s Substantial Completion of the Landlord’s Work, Tenant shall execute and deliver to Landlord a letter substantially in the form of Exhibit E hereto confirming (1) the Commencement Date and the expiration date of the initial Term, (2) that Tenant has accepted the Premises, and (3) that Landlord has performed all of its obligations with respect to the Premises (except for Punchlist Items specified in such letter); however, the failure of the parties to execute such letter shall not defer the Commencement Date or otherwise invalidate this Lease. During the Interim Occupancy Period, Tenant has the right to occupy and use the Premises for the Permitted Use in accordance with all of the terms of this Lease.

4. Rent.

(1) Tenant shall pay to Landlord beginning on the Lease Date Tenant’s Proportionate Share of the annual Operating Costs (defined below). Landlord may make a good faith estimate of Tenant’s Proportionate Share of Operating Costs to be due by Tenant for any calendar year or part thereof during the Term. During each calendar year or partial calendar year of the Term, Tenant shall pay to Landlord, in advance concurrently with each monthly installment of Basic Rent, an amount equal to the estimated Tenant’s Proportionate Share of Operating Costs for such calendar year or part thereof divided by the number of months therein. From time to time, Landlord may estimate and re-estimate the amount of Tenant’s Proportionate Share of Operating Costs to be due by Tenant and deliver a copy of the estimate or re-estimate to Tenant. Thereafter, the monthly installments of Tenant’s Proportionate Share of Operating Costs payable by Tenant shall be appropriately adjusted in accordance with the estimations so that, by the end of the calendar year in question, Tenant shall have paid all of Tenant’s Proportionate Share of Operating Costs as estimated by Landlord. Any amounts paid based on such an estimate shall be subject to adjustment as herein provided when actual Operating Costs are available for each calendar year.

(2) The term “Operating Costs” means all expenses and disbursements (subject to the limitations set forth below) that Landlord incurs in connection with the ownership, operation, and maintenance of the Project, determined in accordance with sound accounting principles consistently applied, including the following costs: (A) wages and salaries of all on-site employees at or below the grade of senior building manager engaged in the operation, maintenance or security of the Project (together with Landlord’s reasonable allocation of expenses of off-site employees at or below the grade of senior building manager who perform a portion of their services in connection with the operation, maintenance or security of the Project), including taxes, insurance and benefits relating thereto; (B) all supplies and materials used in the operation, maintenance, repair, replacement, and security of the Project; (C) cost of all utilities (including fuel, gas, electricity, water, sewer, and other services) for the common areas and other non-tenant areas of the Project (e.g., mechanical, electrical and telecommunications rooms) as reasonably determined by Landlord; (D) repairs, replacements, and general maintenance of the Project including paving and parking areas, roads, roof repairs (Landlord is responsible for replacement of the roof as provided in Section 7), alleys and driveways, trash collection, sweeping and removal of trash for the common areas, mowing and snow removal, landscaping and exterior painting, the cost of maintaining utility lines, fire sprinklers and fire protection systems, exterior lighting, and mechanical and plumbing systems serving the Project and, to the extent the following items serve more than one tenant in the Project, Generator (defined below), dock doors, drains and sump pumps; (E) fair market rental and other costs with respect to the management office for the Project; (F) service, maintenance and management contracts with independent contractors for the operation, maintenance, management, repair, replacement, and security of the Project (including alarm service, window cleaning, and elevator maintenance); (G) costs of professional services rendered for the general benefit of the Project; (H) environmental insurance or environmental management fees; (I) the cost of any insurance deductibles for insurance required to be maintained by Landlord; and (J) costs for improvements made to the Project which, although capital in nature, are expected to reduce the normal operating costs (including all utility costs) of the Project, as amortized using a commercially reasonable interest rate over the time period reasonably estimated by Landlord to recover the costs thereof taking into consideration the anticipated cost savings, as determined by Landlord using its good faith, commercially reasonable judgment, as well as capital improvements made in order to comply with any Law hereafter promulgated by any governmental authority or any new interpretations of any Law hereafter rendered with respect to any existing Law, as amortized using a commercially reasonable interest rate over the useful economic life of such improvements as determined by Landlord in its reasonable discretion.

Operating Costs shall not include costs for (i) capital improvements made to the Project, other than capital improvements described in Section 4(b)(2)(J) and except for items which are generally considered maintenance and repair items, such as painting of common areas, replacement of carpet in elevator lobbies (if any), and the like; (ii) repair, replacements and general maintenance paid by proceeds of insurance or by Tenant or other third parties; (iii) interest, amortization or other payments on loans to Landlord or rentals payable under any ground or underlying lease, if any; (iv) depreciation; (v) costs relating to the leasing of the Building, including brokers’ commissions, accounting and legal fees (including attorneys’ fees for disputes with tenants); (vi) legal expenses for services, other than those that benefit the Project tenants generally (e.g., tax disputes); (vii) Taxes; (viii) Insurance Costs; (ix) renovating or otherwise improving space for occupants of the Project or vacant space in the Project; (x) payments to affiliates of Landlord but only to the extent that they exceed market charges; (xi) Landlord’s general corporate overhead and administrative expenses; and (xii) fines, costs, late charges, liquidated damages, penalties, tax penalties, or related interest charges imposed on Landlord or Landlord’s property manager, provided the same are imposed on Landlord or Landlord’s property manager except to the extent that such is the fault of Tenant.

(3) Tenant shall also pay Tenant’s Proportionate Share of the Taxes for each year and partial year beginning on the Lease Date. Tenant shall pay Tenant’s Proportionate Share of Taxes in the same manner as provided above for Tenant’s Proportionate Share of Operating Costs. “Taxes” means taxes, assessments, and governmental charges or fees whether federal, state, county or municipal, and whether they be by taxing districts or authorities presently taxing or by others, subsequently created or otherwise, and any other taxes and assessments (including non- governmental assessments for common charges under a restrictive covenant or other private agreement that are not treated as part of Operating Costs) now or hereafter attributable to the Project (or its operation), excluding, however, penalties and interest thereon and federal and state taxes on income (if the present method of taxation changes so that in lieu of or in addition to the whole or any part of any Taxes, there is levied on Landlord a capital tax directly on the rents received therefrom or a franchise tax, assessment, or charge based, in whole or in part, upon such rents for the Project, then all such taxes, assessments, or charges, or the part thereof so based, shall be deemed to be included within the term “Taxes” for purposes hereof). Taxes shall include the costs of consultants retained in an effort to lower taxes and all costs incurred in disputing any taxes or in seeking to lower the tax valuation of the Project. For property tax purposes, Tenant waives all rights to protest or appeal the appraised value of the Premises, as well as the Project, and all rights to receive notices of reappraisement.

(4) By April 1 of each calendar year, or as soon thereafter as practicable, Landlord shall furnish to Tenant a statement of Operating Costs and Taxes for the previous year (the “Operating Costs and Tax Statement”). If Tenant’s estimated payments of Operating Costs or Taxes under this Section for the year covered by the Operating Costs and Tax Statement exceed Tenant’s Proportionate Share of such items as indicated in the Operating Costs and Tax Statement, then Landlord shall promptly credit or reimburse Tenant for such excess; likewise, if Tenant’s estimated payments of Operating Costs or Taxes under this Section for such year are less than Tenant’s Proportionate Share of such items as indicated in the Operating Costs and Tax Statement, then Tenant shall promptly pay Landlord such deficiency. Upon request by Tenant, Landlord shall provide commercially reasonable backup for such charges and evidence of payment of the underlying invoices summarized in the Operating Costs and Tax Statement. Tenant shall have the right to audit the Operating Costs and Tax Statement by providing Landlord with written notice (the “Review Notice”) that Tenant intends to review Landlord’s records of the Operating Costs and Taxes for the year to which the statement applies. Within thirty (30) days after receipt of the Review Notice, Landlord shall make electronic copies of all pertinent records that are reasonably necessary for Tenant’s review available for inspection. If Tenant provides Landlord with a Review Notice, Landlord and Tenant shall work together in good faith to resolve any issues pertaining to the Operating Costs and Tax Statement. If, after negotiating in good faith, Landlord and Tenant are unable to resolve any such issues, then upon fifteen (15) days’ prior written notice, Tenant or Tenant’s expense accounting consultant shall have the right to audit Landlord’s books and records relating to the prior two (2) year’s Operating Costs and Taxes at a mutually convenient time at Landlord’s local office, if one exists, or if none exists, at Landlord’s main offices. If the audit discloses Tenant’s total payments of the Tenant’s Proportionate Share of Operating Costs and Taxes for the year to which the Operating Costs and Tax Statement applies are more than Tenant’s Proportionate Share of Operating Costs and Taxes for such year (and Landlord cannot demonstrate that the audit is inaccurate), then Landlord shall retain such excess and credit it against Tenant’s next monthly Rent payments or if such overpayment occurs at the end of the Term, then Landlord shall refund such amount to Tenant within thirty (30) days after the end of the Term. If such audit reveals that Landlord has overcharged Tenant for Tenant’s Proportionate Share of Operating Costs and Taxes by more than five percent (5%) or more, Landlord shall reimburse Tenant for the reasonable cost incurred by Tenant in completing such audit.

5. Delinquent Payment; Handling Charges. All past due payments required of Tenant hereunder shall bear interest from the date due until paid at the lesser of eighteen percent per annum or the maximum lawful rate of interest (such lesser amount is referred to herein as the “Default Rate”); additionally, Landlord, in addition to all other rights and remedies available to it, may charge Tenant a fee equal to the greater of (a) $50.00 or (b) five percent of the delinquent payment to reimburse Landlord for its cost and inconvenience incurred as a consequence of Tenant’s delinquency. In no event, however, shall the charges permitted under this Section or elsewhere in this Lease, to the extent they are considered to be interest under applicable Law, exceed the maximum lawful rate of interest. Notwithstanding the foregoing, the late fee referenced above shall not be charged with respect to the first occurrence (but not any subsequent occurrence) during any 12-month period that Tenant fails to make payment when due, until five business days after Landlord delivers written notice of such delinquency to Tenant.

6. Security Deposit. Contemporaneously with the execution of this Lease, Tenant shall pay to Landlord the Security Deposit, which shall be held by Landlord to secure Tenant’s performance of its obligations under this Lease. The Security Deposit is not an advance payment of Rent or a measure or limit of Landlord’s damages upon an Event of Default (as defined herein). Landlord may, from time to time following an Event of Default and without prejudice to any other remedy, use all or a part of the Security Deposit to perform any obligation Tenant fails to perform hereunder. Following any such application of the Security Deposit, Tenant shall pay to Landlord on demand the amount so applied in order to restore the Security Deposit to its original amount. Subject to the requirements of, and conditions imposed by, Laws applicable to security deposits under commercial leases, Landlord shall, within the time required by applicable Law, return to Tenant the portion of the Security Deposit remaining after deducting all damages, charges and other amounts permitted by Law. Landlord and Tenant agree that such deductions shall include, without limitation, all damages and losses that Landlord has suffered or that Landlord reasonably estimates that it will suffer as a result of any breach of this Lease by Tenant. The Security Deposit may be commingled with other funds, and no interest shall be paid thereon. If Landlord transfers its interest in the Premises, Landlord shall assign the Security Deposit to the transferee and, upon such transfer and the delivery to Tenant of an acknowledgement of the transferee’s responsibility for the Security Deposit as provided by Law, Landlord thereafter shall have no further liability for the return of the Security Deposit.

7. Landlord’s Maintenance Obligations. This Lease is intended to be a net lease; accordingly, Landlord’s maintenance obligations are limited to the replacement of the Building’s Structure; Landlord shall not be responsible for (1) any such work until Tenant notifies Landlord of the need therefor in writing or (2) alterations to the Building’s Structure required by applicable law because of Tenant’s use of the Premises (which alterations shall be Tenant’s responsibility). The Building’s Structure does not include skylights, windows, glass or plate glass, doors or overhead doors, special fronts, or office entries, dock bumpers, dock plates or levelers, loading areas and docks, and loading dock equipment, all of which shall be maintained by Tenant. Landlord’s liability for any defects, repairs, replacement or maintenance for which Landlord is specifically responsible for under this Lease shall be limited to the cost of performing the work. Additionally, Landlord shall maintain the parking areas, and other common areas of the Building, including driveways, alleys, landscape and grounds surrounding the Premises and utility lines in a good condition, consistent with the operation of a general office, manufacturing, and warehouse facility, including the exterior of the Building (including painting), landscaping sprinkler systems, and any items normally associated with the foregoing. All costs in performing the work described in the foregoing sentence shall be included in Operating Costs. Tenant shall promptly notify Landlord in writing of any work required to be performed under this Section 7, and Landlord shall not be responsible for performing such work until Tenant delivers to Landlord such notice. Additionally, in no event shall Landlord be responsible for alterations to the Building’s Structure required by applicable Law because of Tenant’s use of the Premises (which alterations shall be made by Tenant at its sole cost and expense). Notwithstanding anything to the contrary contained herein, Landlord shall, in its sole and absolute discretion, determine the appropriate remedial action required of it to satisfy its maintenance obligations hereunder (e.g., Landlord shall, in its sole discretion, determine whether, and to the extent, repairs or replacements are the appropriate remedial action).

Landlord acknowledges that the emergency generator that is currently located on the Project for providing electricity to the Building (the “Generator”) is Tenant’s property and that Tenant may remove and dispose of the Generator as it sees fit at termination of this Lease, provided Tenant shall, at its sole cost and expense, repair any damage to the Project caused by Tenant’s removal of the Generator. Landlord shall provide to Tenant any keys or codes that will enable Tenant to have access to the fenced area where the Generator is located at all times during the Term of this Lease. Tenant agrees that during the Term of this Lease the Generator may be used to service the entire Building, and in consideration therefor the Landlord shall maintain the Generator in good working condition at all times (including keeping it fueled at not less than 50% fuel capacity at all times). All such costs of maintaining the Generator shall be Operating Costs and Tenant shall pay its Proportionate Share of such costs pursuant to Section 4(b), above. Tenant shall insure the Generator against loss or destruction and, in the event of loss or destruction of the Generator, Tenant shall be solely responsible for providing a replacement Generator, which shall be the property of Tenant that it may remove on termination of this Lease, subject to the repair obligation set forth above, and Landlord shall provide all commercially reasonable assistance and cooperation that may be required for the installation of the replacement Generator, including modification, alteration, or reconfiguration of any wall, conduit, or wiring of the Building required to connect the replacement Generator to the automatic transfer switch for transferring the Building power source to the replacement Generator (the “ATS”), all at Landlord’s sole cost as maintenance of the Building’s Structure and not as an Operating Cost. Similarly, if the Generator ceases to operate due to any cause that is not covered by insurance, Tenant shall be solely responsible for providing a replacement Generator, which shall be the property of Tenant that it may remove on termination of this Lease, subject to the repair obligation set forth above, and Landlord shall provide all commercially reasonable assistance and cooperation that may be required for the installation of the replacement Generator, including modification, alteration, or reconfiguration of any wall, conduit, or wiring of the Building required to connect the replacement Generator to the ATS, all at Landlord’s sole cost as maintenance of the Building’s Structure and not as an Operating Cost. The Landlord’s Work shall include the installation of walls and access around the ATS so that the current location of the ATS becomes a common area accessible by Tenant at all times, and the common area for the ATS shall not be moved or relocated by Landlord without Tenant’s prior written consent, which shall not be unreasonably withheld.

8. Improvements; Alterations; Tenant’s Maintenance and Repair Obligations.

9. Utilities. Tenant shall pay for all water, gas, electricity, heat, telephone, sewer, sprinkler charges and other utilities and services used at the Premises, together with any taxes, penalties, surcharges, connection charges, maintenance charges, and the like pertaining to Tenant’s use of the Premises. Landlord shall, as part of Landlord’s Work, separately meter the Premises for each utility service or, in the event that it is not commercially reasonable to separately meter a utility service, Landlord shall submeter the Premises for such utility service. Tenant, at its expense, shall obtain all utility services for the Premises, including making all applications therefor, obtaining meters and other related equipment, and paying all deposits and connection charges. Landlord shall not be liable for any interruption or failure of utility service to the Premises, and such interruption or failure of utility service shall not be a constructive eviction of Tenant, constitute a breach of any implied warranty, or, except as provided in the next sentence, entitle Tenant to any abatement of Tenant’s obligations hereunder. If, however, Tenant is prevented from using the Premises for more than three (3) consecutive business days because of the unavailability of any such service and such unavailability was caused by Landlord and restoration of such service is within the reasonable control of Landlord, then Tenant shall, as its exclusive remedy be entitled to an abatement of Rent for each consecutive day (after such three consecutive business day period) that Tenant is so prevented from using the Premises. Rent shall not abate by reason of the interruption, insufficiency, unavailability or discontinuance of such service if such unavailability or discontinuance was not caused by Landlord and restoration of such service is not within the reasonable control of Landlord.

10. Use. Tenant shall continuously occupy and use the Premises only for the Permitted Use and shall comply with all Laws relating to this Lease and/or the use, condition, access to, and occupancy of the Premises and will not commit waste, overload the Building’s Structure or the Building’s Systems or subject the Premises to use that would damage the Premises. Notwithstanding anything in this Lease to the contrary, as between Landlord and Tenant, (a) Tenant shall bear the risk of complying with Title III of the Americans With Disabilities Act of 1990, any state laws governing handicapped access or architectural barriers, and all rules, regulations, and guidelines promulgated under such laws, as amended from time to time (the “Disabilities Acts”) in the Premises, and (b) Landlord shall bear the risk of complying with the Disabilities Acts in the common areas of the Building, other than compliance that is necessitated by the use of the Premises for other than the Permitted Use or as a result of any alterations or additions, including any initial tenant improvement work, made by or on behalf of a Tenant Party (which risk and responsibility shall be borne by Tenant). The Premises shall not be used for any use which is disreputable, creates extraordinary fire hazards, or results in an increased rate of insurance on the Building or its contents, or for the storage of any Hazardous Materials (except as provided in Section 26 hereto), provided, however, that such matters arising in connection with Tenant’s Permitted Use of the Premises are expressly permitted regardless of whether such matters are considered disreputable, create extraordinary fire hazards, or result in an increased rate of insurance on the Building or its contents. Outside storage, including storage of trucks or other vehicles, is prohibited without Landlord’s prior written consent (not to be unreasonably withheld, conditioned or delayed). If, because of a Tenant Party’s acts or because Tenant vacates the Premises, the rate of insurance on the Building or its contents increases, then Tenant shall pay to Landlord the amount of such increase on demand. Tenant shall conduct its business and control each other Tenant Party so as not to create any nuisance or unreasonably interfere with other tenants or Landlord in its management of the Building, provided, however, that nuisances and interference arising in connection with Tenant’s Permitted Use of the Premises are expressly permitted regardless of whether such nuisances and interference interfere in any way with other tenants or persons having business with them. Notwithstanding the foregoing, in the event of any nuisances or interference arising in connection with Tenant’s Permitted Use of the Premises, Tenant shall, upon Landlord’s reasonable request, use commercially reasonable efforts to mitigate such nuisances or interference, provided that Tenant shall have no obligation to effect any mitigation efforts that would disrupt or otherwise disturb Tenant’s operation of its business on the Premises for the Permitted Use.

11. Assignment and Subletting.

(1) an Affiliate of Tenant;

(2) any corporation, limited partnership, limited liability partnership, limited liability company or other business entity in which or with which Tenant, or its corporate successors or assigns, is merged or consolidated, in accordance with applicable statutory provisions governing merger and consolidation of business entities, so long as (A) Tenant’s obligations hereunder are assumed by the entity surviving such merger or created by such consolidation; and (B) the Tangible Net Worth of the surviving or created entity is not less than the Tangible Net Worth of Tenant as of the date hereof; or

(3) any corporation, limited partnership, limited liability partnership, limited liability company or other business entity acquiring all or substantially all of Tenant’s assets if such entity’s Tangible Net Worth after such acquisition is not less than the Tangible Net Worth of Tenant as of the date hereof.

Tenant shall promptly notify Landlord of any such Permitted Transfer. Tenant shall remain liable for the performance of all of the obligations of Tenant hereunder, or if Tenant no longer exists because of a merger, consolidation, or acquisition, the surviving or acquiring entity shall expressly assume in writing the obligations of Tenant hereunder. Additionally, the Permitted Transferee shall comply with all of the terms and conditions of this Lease, including the Permitted Use, and the use of the Premises by the Permitted Transferee may not violate any other agreements affecting the Premises, the Building, Landlord or other tenants of the Building. No later than 30 days after the effective date of any Permitted Transfer, Tenant agrees to furnish Landlord with (A) copies of the instrument effecting any of the foregoing Transfers, (B) documentation establishing Tenant’s satisfaction of the requirements set forth above applicable to any such Transfer, (C) evidence of insurance as required under this Lease with respect to the Permitted Transferee, and (D) evidence of compliance with the regulations of OFAC and any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action relating thereto, including the name and address of the Permitted Transferee and any entities and persons who own, control or direct the Permitted Transferee. The occurrence of a Permitted Transfer shall not waive Landlord’s rights as to any subsequent Transfers. “Tangible Net Worth” means the excess of total assets over total liabilities, in each case as determined in accordance with generally accepted accounting principles consistently applied (“GAAP”), excluding, however, from the determination of total assets all assets which would be classified as intangible assets under GAAP including goodwill, licenses, patents, trademarks, trade names, copyrights, and franchises. Any subsequent Transfer by a Permitted Transferee shall be subject to the terms of this Section.

12. Insurance; Waivers; Subrogation; Indemnity.

(d) Indemnity.

(1) Subject to Section 12(c), Tenant shall defend, indemnify, and hold harmless Landlord and its representatives and agents from and against all claims, demands, liabilities, causes of action, suits, judgments, damages, and expenses (including reasonable attorneys’ fees) arising from any injury to or death of any person or the damage to or theft, destruction, loss or loss of use of, any property or inconvenience (a “Loss”) (1) occurring in or on the Project (other than within the Premises) to the extent caused by the negligence or willful misconduct of any Tenant Party, (2) occurring in the Premises, or (3) arising out of the installation, operation, maintenance, repair or removal of any property of any Tenant Party located in or about the Project, including Tenant’s Off-Premises Equipment; provided, however, such indemnity shall not apply to the extent caused by the active negligence or willful misconduct of Landlord or its agents.

(2) Subject to Section 12(c), Landlord shall defend, indemnify, and hold harmless Tenant and its representatives and agents from and against all Losses occurring in or on the Project (other than within the Premises) to the extent caused by the negligence or willful misconduct of Landlord or its agents; provided, however, such indemnity shall not apply to the extent caused by the negligence or willful misconduct of Tenant and its agents.

(3) The indemnities set forth in this Lease shall survive termination or expiration of this Lease and shall not terminate or be waived, diminished or affected in any manner by any abatement or apportionment of Rent under any provision of this Lease. If any proceeding is filed for which indemnity is required hereunder, the indemnifying party agrees, upon request therefor, to defend the indemnified party in such proceeding at its sole cost utilizing counsel satisfactory to the indemnified party.

13. Subordination; Attornment; Notice to Landlord’s Mortgagee.

14. Rules and Regulations. Tenant shall comply with the rules and regulations of the Project which are attached hereto as Exhibit C. Landlord may, from time to time, change such rules and regulations for the safety, care, or cleanliness of the Project and related facilities, provided that such changes are applicable to all tenants of the Project, will not unreasonably interfere with Tenant’s use of the Premises and are enforced by Landlord in a non-discriminatory manner. Tenant shall be responsible for the compliance with such rules and regulations by each Tenant Party, but such rules and regulations shall be uniformly applied.

15. Condemnation.

17. Personal Property Taxes. Tenant shall be liable for all taxes levied or assessed against personal property, furniture, or fixtures placed by Tenant in the Premises or in or on the Building or Project. If any taxes for which Tenant is liable are levied or assessed against Landlord or Landlord’s property and Landlord elects to pay the same, or if the assessed value of Landlord’s property is increased by inclusion of such personal property, furniture or fixtures and Landlord elects to pay the taxes based on such increase, then Tenant shall pay to Landlord, within 30 days following written request therefor, the part of such taxes for which Tenant is primarily liable hereunder; however, Landlord shall not pay such amount if Tenant notifies Landlord that it will contest the validity or amount of such taxes before Landlord makes such payment, and thereafter diligently proceeds with such contest in accordance with Law and if the non-payment thereof does not pose a threat of loss or seizure of the Project or interest of Landlord therein or impose any fee or penalty against Landlord.

18. Events of Default. Each of the following occurrences shall be an “Event of Default”:

(a) Payment Default. Tenant’s failure to pay Rent within five business days after Landlord has delivered written notice to Tenant that the same is due; however, an Event of Default shall occur hereunder without any obligation of Landlord to give any notice if Tenant fails to pay Rent when due and, during the 12 month interval preceding such failure, Landlord has given Tenant written notice of failure to pay Rent on two or more occasions;

(b) Intentionally Deleted;

(c) Estoppel. Tenant fails to provide any estoppel certificate after Landlord’s written request therefor pursuant to Section 26(f) and such failure shall continue for five days after Landlord’s second written notice thereof to Tenant;

(d) Insurance. Tenant fails to procure, maintain and deliver to Landlord evidence of the insurance policies and coverages as required under Section 12(a) within fifteen (15) days after Landlord has delivered written notice to Tenant, provided, notwithstanding the foregoing or anything to the contrary in this Lease, the foregoing cure period shall not apply with respect to Landlord’s right to exercise its right of self-help as set forth in Section 19 (c) below;

(e) Mechanic’s Liens. Tenant fails to pay and release of record, or diligently contest and bond around, any mechanic’s lien filed against the Premises or the Project for any work performed, materials furnished, or obligation incurred by or at the request of Tenant, within the time and in the manner required by Section 8(d);

(f) Other Defaults. Tenant’s failure to perform, comply with, or observe any other agreement or obligation of Tenant under this Lease and the continuance of such failure for a period of more than 30 days after Landlord has delivered to Tenant written notice thereof (or if Tenant does not within said period commence and diligently proceed to cure such default); and

(g) Insolvency The filing of a petition by or against Tenant (the term “Tenant” shall include, for the purpose of this Section, any guarantor of Tenant’s obligations hereunder) (1) in any bankruptcy or other insolvency proceeding; (2) seeking any relief under any state or federal debtor relief law; (3) for the appointment of a liquidator or receiver for all or substantially all of Tenant’s property or for Tenant’s interest in this Lease; (4) for the reorganization or modification of Tenant’s capital structure; or (5) in any assignment for the benefit of creditors proceeding; however, if such a petition is filed against Tenant, then such filing shall not be an Event of Default unless Tenant fails to have the proceedings initiated by such petition dismissed within 90 days after the filing thereof.

19. Remedies. Upon any Event of Default, Landlord may, in addition to all other rights and remedies afforded Landlord hereunder or by law or equity, take any one or more of the following actions:

21. Landlord’s Lien. Landlord waives any statutory landlord’s lien, now or hereafter enacted, on Tenant’s property situated in, or upon, or used in connection with the Premises or the Project.

22. Surrender of Premises. No act by Landlord shall be deemed an acceptance of a surrender of the Premises, and no agreement to accept a surrender of the Premises shall be valid unless it is in writing and signed by Landlord. At the expiration or termination of this Lease, Tenant shall deliver to Landlord the Premises with all improvements located therein in good repair and condition, free of Hazardous Materials placed on the Premises during the Term, broom-clean, reasonable wear and tear (and condemnation and Casualty damage not caused by Tenant, as to which Sections 15 and 16 shall control) excepted, and shall deliver to Landlord all keys to the Premises. Tenant may remove all unattached trade fixtures, furniture, and personal property placed in the Premises or elsewhere in the Building by Tenant (but Tenant may not remove any such item which was paid for, in whole or in part, by Landlord or any wiring or cabling unless Landlord requires such removal). Additionally, if Landlord requests such removal (but not otherwise), Tenant shall remove such alterations, additions, improvements, trade fixtures, personal property, equipment, wiring, conduits, cabling, and furniture (including Tenant’s Off-Premises Equipment) as Landlord may request, including, without limitation, if Landlord requests such removal and restoration (but not otherwise); however, Tenant shall not be required to remove any addition or improvement to the Premises or the Project if Landlord has specifically agreed in writing that the improvement or addition in question need not be removed. Tenant shall repair all damage caused by such removal. All items not so removed shall, at Landlord’s option, be deemed to have been abandoned by Tenant and may be appropriated, sold, stored, destroyed, or otherwise disposed of by Landlord without notice to Tenant and without any obligation to account for such items. The provisions of this Section shall survive the end of the Term.

23. Holding Over. If Tenant fails to vacate the Premises at the end of the Term, then Tenant shall be a tenant at sufferance and, in addition to all other damages and remedies to which Landlord may be entitled for such holding over, (a) Tenant shall pay, in addition to the other Rent, Basic Rent equal to 150% of the Rent payable during the last month of the Term, and (b) Tenant shall otherwise continue to be subject to all of Tenant’s obligations under this Lease. The provisions of this Section shall not be deemed to limit or constitute a waiver of any other rights or remedies of Landlord provided herein or at law. If Tenant fails to surrender the Premises upon the termination or expiration of this Lease, in addition to any other liabilities to Landlord accruing therefrom, Tenant shall protect, defend, indemnify and hold Landlord harmless from all loss, costs (including reasonable attorneys’ fees) and liability resulting from such failure, including any claims made by any succeeding tenant founded upon such failure to surrender, and any lost profits to Landlord resulting therefrom.

24. Certain Rights Reserved by Landlord. Provided that the exercise of such rights does not unreasonably interfere with Tenant’s occupancy of the Premises, Landlord shall have the following rights:

Exhibit A - Outline of Premises

Exhibit B - Description of the Land

Exhibit C - Building Rules and Regulations

Exhibit D - Work Letter

Exhibit E - Form of Confirmation of Commencement Date Letter

Exhibit F - Form of Tenant Estoppel Certificate

Exhibit G – Tenant’s Permitted Use

27. Parking. Tenant shall have the right to designate up to parking stalls immediately adjacent its Premises in a location approved by Landlord as exclusive parking. Except as provided above, Tenant shall have the non-exclusive right, in common with other tenants of the Building to use such parking spaces associated with the Building as are allocated to Tenant by Landlord. Landlord shall use its reasonable discretion in allocating parking spaces to the tenants of the Building, taking into consideration all factors Landlord deems relevant, including the density and type (e.g., office or industrial) of use conducted by the tenants of the Building in their respective premises. Landlord reserves the right to initiate steps to control the parking utilization through gates, access cards, hang-tags or other means as appropriate. Parking spaces will be available to Tenant without charge during the Term. Landlord shall not be responsible for enforcing Tenant’s parking rights against third parties.

28. Counterparts. This Lease may be executed in one or more identical counterparts, and as so executed by all parties hereto shall constitute a single instrument for purposes of the effectiveness of this Lease. The words “execution”, “signed”, “signature” and words of like import in this Lease shall include images of manually executed signatures transmitted by facsimile or other electronic format (including “pdf”, “tif” or “jpg”) or an electronic signature executed through DocuSign or similar electronic format. The use of electronic signatures and electronic records (including any contract or other record created, generated, sent, communicated, received or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based recordkeeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.

LANDLORD AND TENANT EXPRESSLY DISCLAIM ANY IMPLIED WARRANTY THAT THE PREMISES ARE SUITABLE FOR TENANT’S INTENDED COMMERCIAL PURPOSE, AND TENANT’S OBLIGATION TO PAY RENT HEREUNDER IS NOT DEPENDENT UPON THE CONDITION OF THE PREMISES OR THE PERFORMANCE BY LANDLORD OF ITS OBLIGATIONS HEREUNDER, AND, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, TENANT SHALL CONTINUE TO PAY THE RENT, WITHOUT ABATEMENT, DEMAND, SETOFF OR DEDUCTION, NOTWITHSTANDING ANY BREACH BY LANDLORD OF ITS DUTIES OR OBLIGATIONS HEREUNDER, WHETHER EXPRESS OR IMPLIED.

[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]

This Lease is executed on the respective dates set forth below, but for reference purposes, this Lease shall be dated as of the date first above written. If the execution date is left blank, this Lease shall be deemed executed as of the date first written above.

EXHIBIT A

OUTLINE OF PREMISES

EXHIBIT B

DESCRIPTION OF THE LAND

A parcel of land being a part of Lot 6 of CENTENNIAL INDUSTRIAL PARK, PHASE IV SUBDIVISION, located in Section 18, Township 1 South, Range 1 West, Salt Lake Base and Meridian, the official plat thereof was recorded June 8, 1979 as Entry No. 3291285 in Book 79-6 at Page 216 in the office of the Salt Lake County Recorder. Said parcel of land being more particularly described as follows:

Beginning at the Southwest corner of said Lot 6; and running thence North 00°07’23” West a distance of 1044.56 feet along the Westerly boundary of said Lot 6; thence North 89°52’37” East a distance of 370.00 feet; thence South 00°07’23” East a distance of 957.31 feet along the Easterly boundary of said Lot 6 to a point of curve; thence Southwesterly 41.89 feet on the arc of a curve to the right with a radius of 30.00 feet, a central angle of 80°00’00” and a chord which bears South 39°52’37” West a distance of 38.57 feet to a point of tangency; thence South 79°52’37” West a distance of 244.74 feet along the Southerly boundary of said Lot 6 to a point of curve; thence Southwesterly 105.31 feet on the arc of a curve to the right with a radius of 1820.00 feet, a central angle 3°18’56” and a chord which bears South 81°32’05” West a distance of 105.31 feet to the point of beginning.

EXHIBIT C

BUILDING RULES AND REGULATIONS

The following rules and regulations shall apply to the Premises, the Building, the parking areas associated therewith, and the appurtenances thereto:

1. Sidewalks, doorways, vestibules, halls, stairways, loading dock areas and associated overhead doors, and other similar areas shall not be obstructed by tenants or used by any tenant for purposes other than ingress and egress to and from their respective leased premises and for going from one to another part of the Building.

2. Plumbing (including outside drains and sump pumps), fixtures and appliances shall be used only for the purposes for which designed, and no sweepings, rubbish, rags or other unsuitable material shall be thrown or deposited therein. Damage resulting to any such fixtures or appliances from misuse by a tenant or its agents, employees or invitees, shall be paid by such tenant.

3. No signs, advertisements or notices shall be painted or affixed on or to any windows or doors or other part of the Building visible from the exterior of the Premises without the prior written consent of Landlord. All of Tenant’s signage located on the Project on the date of the Lease are accepted and consented to by Landlord. Except as consented to in writing by Landlord or in accordance with Tenant’s building standard improvements, no draperies, curtains, blinds, shades, screens or other devices shall be hung at or used in connection with any window or exterior door or doors of the Premises. No awning shall be permitted on any part of the Premises. Tenant shall not place anything against or near glass partitions or doors, or windows which might appear unsightly from outside the Premises.

4. Tenant, at its expense, shall be responsible for providing all door locks in the Premises and shall provide to Landlord, at Tenant’s expense, contemporaneously with the installation of such devices, a master key, card keys, access codes or other means to allow Landlord immediate access to all areas within the Premises. Landlord may not enter Tenant’s Secured Areas except in the case of emergency or in the event of a Landlord inspection, in which case Landlord shall provide Tenant with reasonable prior notice of the specific date and time of such Landlord inspection. In addition, Tenant shall have the right and option to cause a Tenant-authorized representative to be present during any such entry by Landlord, its agents, employees and representatives. As a condition to entry, Landlord shall comply with all procedures established by Tenant to maintain the germ-free and sanitary condition of any Secured Areas and Landlord’s representatives entering the Premises shall sign the confidentiality agreement that Tenant requires of visitors to the Premises.

5. Landlord may prescribe weight limitations and determine the locations for safes and other heavy equipment or items, which shall in all cases be placed in the Building so as to distribute weight in a manner acceptable to Landlord which may include the use of such supporting devices as Landlord may require. All damages to the Building caused by the installation or removal of any property of a tenant, or done by a tenant’s property while in the Building, shall be repaired at the expense of such tenant.

6. Corridor doors, when not in use, shall be kept closed. Nothing shall be swept or thrown into the corridors, halls, elevator shafts or stairways. No birds or animals (other than seeing-eye dogs) shall be brought into or kept in, on or about any tenant’s leased premises, provided, however, that Tenant may keep birds or animals on the Premises that are intended to be used by Tenant in connection with its Permitted Use of the Premises. No portion of any tenant’s leased premises shall at any time be used or occupied as sleeping or lodging quarters.

7. Tenant shall not make or permit any vibration or improper, objectionable or unpleasant noises or odors in the Building or otherwise interfere in any way with other tenants or persons having business with them, provided, however, that odors arising in connection with Tenant’s Permitted Use of the Premises are expressly permitted regardless of whether such odors interfere in any way with other tenants or persons having business with them. Tenant shall not introduce, disturb or release asbestos or PCB’s into or from the Premises.

8. Tenant shall not keep in the Building any flammable or explosive fluid or substance in violation of applicable laws. Tenant shall not install or operate any steam or gas engine or boiler, or other mechanical apparatus in the Premises without the prior written consent of Landlord. The use of oil, gas or inflammable liquids for heating, lighting or any other purpose in violation of applicable laws is expressly prohibited. Explosives or other articles deemed extra hazardous shall not be brought into the Building in violation of applicable laws.

9. Landlord will not be responsible for lost or stolen personal property, money or jewelry from tenant’s leased premises or public or common areas regardless of whether such loss occurs when the area is locked against entry or not.

10. Tenant shall not conduct any activity on or about the Premises or Building which will draw pickets, demonstrators, or the like. Nothing herein shall be deemed to limit Tenant’s Permitted Use.

11. All vehicles are to be currently licensed, in good operating condition, parked for business purposes having to do with Tenant’s business operated in the Premises, parked within designated parking spaces, one vehicle to each space. No vehicle shall be parked as a “billboard” vehicle in the parking lot. Any vehicle parked improperly may be towed away. Tenant, Tenant’s agents, employees, vendors and customers who do not operate or park their vehicles as required shall subject the vehicle to being towed at the expense of the owner or driver. Landlord may place a “boot” on the vehicle to immobilize it and may levy a charge of $50.00 to remove the “boot.” Tenant shall indemnify, hold and save harmless Landlord of any liability arising from the towing or booting of any vehicles belonging to a Tenant Party.

12. No tenant may enter into phone rooms, electrical rooms, mechanical rooms, or other service areas of the Building not located within the Premises unless accompanied by Landlord or the Building manager.

13. Tenant shall not permit storage outside the Premises or dumping of waste or refuse or permit any harmful materials to be placed in any drainage system or sanitary system in or about the Premises.

14. Tenant shall not install or operate on the Premises any machinery or mechanical devices of a nature not directly related to Tenant’s ordinary use of the Premises.

15. Tenant shall not park or operate any semi-trucks or semi-trailers in the parking areas associated with the Building.

16. Tenant will not permit any Tenant Party to bring onto the Project any handgun, firearm or other weapons of any kind, illegal drugs or, unless expressly permitted by Landlord in writing, alcoholic beverages.

17. Tenant shall not permit its employees, invitees or guests to smoke in the Premises or the lobbies, passages, corridors, elevators, vending rooms, rest rooms, stairways or any other area shared in common with other tenants in the Building, or permit its employees, invitees, or guests to loiter at the Building entrances for the purposes of smoking. Landlord may, but shall not be required to, designate an area for smoking outside the Building.

EXHIBIT D

WORK LETTER

LANDLORD AND TENANT IMPROVEMENT WORK LETTER

THIS LANDLORD AND TENANT IMPROVEMENT WORK LETTER (“Work Letter”) is hereby made and entered by and between 1960 SOUTH 4250 WEST LLC, a Utah limited liability company (“Landlord”), and POLARITYTE MD, INC., a Nevada corporation (“Tenant”), pertaining to the Premises. Except where clearly inconsistent or inapplicable, the provisions of the Lease are incorporated into this Work Letter, and capitalized terms used without being defined in this Work Letter shall have the meanings given them in the Lease.

The purpose of this Work Letter is to set forth the respective responsibilities of Landlord and Tenant with respect to the design and construction of all alterations, additions and improvements that Landlord and Tenant may deem necessary or appropriate to prepare the Premises for occupancy by Tenant under the Lease. Such alterations, additions and improvements to the Building, excluding the Tenant Improvement Work, that are required to demise the Building so that it conforms to the Space Plans (defined below) is referred to as the “Landlord’s Work.” Alterations, additions and improvements to the Premises, including the demolition, relocation, or construction of clean rooms and excluding the Landlord’s Work and any other Tenant personal property or other property of the Tenant not affixed to the Premises, are referred to in this Work Letter as the “Tenant Improvements,” and the work of constructing the Tenant Improvements is referred to as the “Tenant Improvement Work.”

Landlord and Tenant agree as follows:

1. Initial Work by Landlord. The Landlord’s Work includes the following:

(a) Landlord, at its sole cost and expense, shall demise the Building including, but not limited to, the installation of walls, installation of walls around and Tenant access to the ATS for the Generator that currently serves the Building to establish a common area around the ATS accessible by Tenant, separation of Building mechanical and electrical systems, using new, commercial grade materials, and in accordance with: (i) the “Scope of Work” to be mutually determined by Landlord and Tenant immediately following the execution of the Lease, and (ii) the Approved Plans (as hereinafter defined), in a good, workmanlike and lien-free manner, and in accordance with all applicable local, state, and federal health and building codes, regulations, laws and permits. The dates for performance of Landlord’s Work shall be set forth on the “Landlord’s Work Schedule” mutually determined by Landlord and Tenant immediately following the execution of the Lease.

(b) On or before the date set forth in Landlord’s Work Schedule Landlord shall submit the proposed plans and specifications to Tenant for Landlord’s Work for Tenant’s approval, which plans and specifications shall be prepared by an architect or civil engineer duly licensed in the state of Utah, shall be based upon and shall incorporate Tenant’s Space Plan, and provide for Tenant’s occupancy and use of the Premises while the Landlord’s Work is being performed. The proposed plans and specifications shall be referred to as the “Approved Plans” upon Landlord’s receipt of Tenant’s approval of same.

(c) Landlord will submit all applications, plans and documents required for all necessary and appropriate permits and approvals for Landlord’s Work on or before the date set forth in Landlord’s Work Schedule and shall diligently pursue receipt of all necessary and appropriate governmental permits and approvals.

(d) Landlord will commence Landlord’s Work on or before the date set forth in Landlord’s Work Schedule. Landlord agrees to deliver weekly photographs evidencing progress of Landlord’s Work according to the established timeline in Landlord’s Work Schedule.

(e) Landlord will construct Landlord’s Work in accordance with the Approved Plans and all applicable local, state, and federal health and building codes, regulations, laws and permits and use commercially reasonable efforts to meet all milestone dates set forth on Landlord’s Work Schedule.

(f) Landlord shall give Tenant at least fifteen (15) days’ prior, written notice of the date on which Landlord will Substantially Complete Landlord’s Work.

(g) Tenant shall have the right, during the progress of Landlord’s Work, to inspect Landlord’s Work provided that such inspection shall not interfere with Landlord’s Work. Landlord’s Work Schedule shall specify the time when Tenant may begin Tenant’s Work. Acknowledging that Landlord and Tenant will be working in the Premises simultaneously, both parties shall coordinate schedules and work crews to achieve a cooperative work environment.

(h) Landlord warrants all of Landlord’s Work against latent and patent defects for one (1) year after the Commencement Date, notwithstanding any maintenance obligations of Tenant in Section 8(b) of the Lease.

(i) Tenant does not assume any liability, and shall not be responsible, for any acts or omissions of Landlord’s contractor, sub-contractor(s) and associated contractor personnel (collectively, “Landlord’s GC”). Landlord agrees to, at its expense, defend, indemnify and hold Tenant harmless from and against any and all claims, suits, actions, causes of action, proceedings, demands, damages, losses, liabilities settlements, judgments, costs and expenses (including reasonable attorneys’ fees) of any kind or nature whatsoever, arising out of or resulting from the negligence or willful misconduct of Landlord’s GC. This indemnification shall be one of first defense and payment and not of surety or reimbursement, and shall survive the expiration or termination of this Agreement.

(j) Notwithstanding anything to the contrary herein, the milestones and other deadlines for completion of Landlord’s Work set forth in the Landlord’s Work Schedule or otherwise provided for herein shall be extended to the extent Landlord’s Work is delayed by the actions or omissions of Tenant or any Tenant Party.

Landlord’s Work shall be deemed complete when Substantially Completed. Landlords’ Work shall be deemed substantially completed (“Substantially Completed” or “Substantial Completion”) when it is substantially completed except for any minor or insubstantial detail of construction, the non-performance of which do not materially interfere with Tenant’s ability to complete the Tenant Improvements (the “Punchlist Items”). Substantial Completion shall be deemed to have occurred notwithstanding a requirement to complete Punchlist Items.

2. General.

2.1 Tenant is solely responsible for designing the Tenant Improvements and performing the Tenant Improvement Work (subject to Landlord’s rights of review and approval set forth in this Work Letter).

2.2 Landlord’s sole interest in reviewing and approving the Construction Drawings (as hereinafter defined) is to protect the Building and Landlord’s interests, and no such review or approval by Landlord shall be deemed to create any liability of any kind on the part of Landlord, or constitute a representation on the part of Landlord or any person consulted by Landlord in connection with such review and approval that the Space Plans or Final Working Drawings are correct or accurate, or are in compliance with any applicable Laws.

2.3 Any default by Tenant under this Work Letter shall, after notice and a reasonable opportunity to cure as set forth in the Lease, constitute a default under the Lease. If an Event of Default occurs under the Lease or a default occurs under this Work Letter at any time on or before the Date of Substantial Completion, then in addition to all other rights and remedies granted to Landlord under the Lease, Landlord shall have the right to withhold payment of all or any portion of the Construction Allowance and/or Landlord may cause Tenant’s Contractor to cease construction of the Tenant Improvements and all other obligations of Landlord under this Work Letter shall be suspended until such time as the default is cured. Tenant shall pay to Landlord, as Additional Rent, all amounts due under the terms of this Work Letter within thirty (30) days following delivery of Landlord’s invoice therefor, which invoices shall be rendered monthly or at such other intervals as Landlord shall determine.

2.4 If the Building and/or the Premises is damaged by fire or other casualty by Tenant prior to the Commencement Date, the Commencement Date shall be deemed to have occurred as of the date of the casualty, and the rights and obligations of the parties shall be governed by Section 16 of the Lease.

2.5 The “Date of Substantial Completion” and “Substantial Completion” of Tenant’s Improvements shall mean the date on which the Tenant Improvements are substantially complete, except for finishing details, decorative items, minor omissions, mechanical adjustments, and similar items of the type customarily found in an architectural punchlist, and Tenant may legally occupy the Premises.

3. Design and Approval of the Tenant Improvements.

3.1 Selection of Tenant’s Architect; Construction Drawings.

(a) Tenant shall retain an architect/space planner (“Tenant’s Architect”) to prepare the Construction Drawings. Tenant’s Architect shall be subject to the written approval of Landlord, which approval will not be unreasonably withheld or delayed. Tenant shall retain engineering consultants approved by Landlord (the “Engineers”), which approval shall not be unreasonably withheld or delayed, to prepare all plans and engineering working drawings relating to the structural, mechanical, electrical, plumbing, HVAC, life-safety and sprinkler work, if any, in the Premises in connection with the Tenant Improvements. The plans and drawings to be prepared by Tenant’s Architect and the Engineers hereunder shall be known, collectively, as the “Construction Drawings.”

(b) All Construction Drawings shall be subject to Landlord’s approval, which approval shall not be unreasonably withheld or delayed. If available, Landlord shall supply Tenant with a set of drawings of the Building which Tenant may use in connection with the preparation of the Construction Drawings, but Tenant agrees that Landlord shall have no liability for the completeness or accuracy thereof, and Tenant’s Architect shall be responsible for performing all necessary field measurements and confirming the completeness and accuracy of such drawings, as well as the physical limitations of Building systems.

3.2 Space Plans. Prior to drafting any Construction Drawings, Tenant shall furnish Landlord with Tenant’s final space plans for the Premises (“Space Plans”). The Space Plans shall show locations of all proposed improvements, including partitions, cabinetry, equipment and fixtures, shall identify materials and finishes by location, and shall specify the location of any proposed structural floor penetrations or reinforcements, the location and extent of floor loading in excess of Building capacity, if any, any special HVAC requirements, the location and description of any special plumbing requirements, and any special electrical requirements. In addition, the Space Plans shall show telephone and telecommunications facilities, and computer and electronic data facilities. Tenant shall deliver initial drafts of the Space Plans for Landlord’s approval within ten (10) days following the date Landlord submits its proposed plans and specifications for Landlord’s Work to Tenant pursuant to Section 1(b), above. Landlord shall approve or disapprove the Space Plans by written notice given to Tenant within ten (10) business days after receipt of the Space Plans. Landlord shall not unreasonably withhold its approval of the Space Plans, provided that, without limiting the generality of the foregoing, Landlord shall be entitled to withhold its approval of the Space Plans if, in Landlord’s good faith judgment, the proposed improvements depicted on the Space Plans: (a) do not comply with applicable Laws; (b) are not consistent with the quality and character of the Building; (c) are likely to adversely affect Building systems, the structure of the Building or the safety of the Building and/or its occupants; (d) might impair Landlord’s ability to furnish services to Tenant or other tenants in the Building; (e) would increase the cost of operating the Building; (f) contain or use Hazardous Substances in violation of applicable law; (g) would adversely affect the appearance of the Building or the marketability of the Premises to subsequent tenants; (h) might adversely affect another tenant’s premises or such other tenant’s use and enjoyment of such premises; (i) are prohibited by any ground lease affecting the Building, any private restrictions or any mortgage, trust deed or other instrument encumbering the Building; (j) are likely to be substantially delayed because of availability or shortage of labor or materials necessary to perform such work or the difficulties or unusual nature of such work; or (k) are not, at a minimum, in accordance with Landlord’s building standards. Landlord may withhold its approval of the Space Plans if any one or more of the foregoing situations exist; provided, however, that the foregoing reasons shall not be the only reasons for which Landlord may withhold its approval, whether such other reasons are similar or dissimilar to the foregoing. If Landlord disapproves the Space Plans, Landlord shall return the Space Plans to Tenant with a statement of Landlord’s reasons for disapproval, or specifying any required corrections and/or revisions. Landlord shall approve or disapprove of any revisions to the Space Plans by written notice given to Tenant within five (5) business days after receipt of such revisions. This procedure shall be repeated until Landlord approves the Space Plans.

3.3 Final Working Drawings. Within thirty (30) days following Landlord’s approval of the Space Plans, Tenant shall cause Tenant’s Architect and the Engineers to prepare and submit for Landlord’s approval complete and detailed construction plans and specifications, including a fully coordinated set of architectural, structural, mechanical, electrical, plumbing, HVAC, life safety and sprinkler working drawings for the Tenant Improvement Work, in a form which is sufficiently complete to permit subcontractors to bid on the work (the “Final Working Drawings”). Tenant shall furnish Landlord with four (4) copies signed by Tenant of such Final Working Drawings. Landlord shall approve or disapprove the Final Working Drawings by giving written notice to Tenant within ten (10) business days after receipt thereof. Landlord shall not unreasonably withhold or delay its approval of the Final Working Drawings, provided that, without limiting the generality of the foregoing, Landlord shall be entitled to withhold its consent to the Final Working Drawings for any of the reasons specified in Section 3.2 above, or if in Landlord’s good faith judgment, the Final Working Drawings are inconsistent with, or do not conform to, the Space Plans. If Landlord disapproves the Final Working Drawings, Landlord shall return the Final Working Drawings to Tenant with a statement of Landlord’s reasons for disapproval and/or specifying any required corrections or revisions. Landlord shall approve or disapprove of any such revisions to the Final Working Drawings within five (5) business days after receipt of such revisions. This procedure shall be repeated until Landlord approves the Final Working Drawings (as so approved, the “Approved Working Drawings”).

4. Construction of Tenant Improvements.

4.1 Contracts with Tenant’s Contractor and Subcontractors.

(a) Tenant shall retain a licensed general contractor as the contractor for the construction of the Tenant Improvements (“Tenant’s Contractor”). Tenant’s Contractor must be experienced in the performance of work comparable to the work of the Tenant Improvements in buildings comparable to the Building, and shall be subject to Landlord’s prior approval, which approval shall not be unreasonably withheld or delayed. Interior Construction Specialists is pre-approved as Tenant’s Contractor. Landlord reserves the right to require that any work to be performed on the life-safety, electrical, plumbing, heating, ventilation, air- conditioning, fire-protection, telecommunications or other Systems serving the Premises (whether such Systems are located within or outside the Premises) be performed by subcontractors specified by Landlord, provided such reserved right of Landlord shall not apply to the extent that (i) such specified contractors do not charge commercially reasonable rates or (ii) such specified contractors are not required to perform such work in order to preserve any warranty then in effect with respect to such Systems.

(b) Tenant shall furnish Landlord with true and correct copies of all construction contracts between Tenant and Tenant’s Contractor relating to the Tenant Improvement Work, provided that Landlord’s review of such contracts shall not relieve Tenant from its obligations under this Work Letter, nor shall such review be deemed to constitute Landlord’s representation that such contracts comply with the requirements of this Work Letter. All such contracts shall expressly provide that (i) the work to be performed thereunder shall be subject to the terms and conditions of this Work Letter, and (ii) the Tenant Improvement Work (or in the case of a subcontractor, the portion thereof performed by such subcontractor), including all equipment installed as part of the Tenant Improvement Work, shall be warranted in writing to Tenant and Landlord to be free from any defects in workmanship and materials for a period of not less than one (1) year from the Date of Substantial Completion; provided, however, no such warranty shall be required with respect to the demolition, relocation, or construction of clean rooms. Tenant agrees to give to Landlord any assignment or other assurances which may be necessary to permit Landlord to directly enforce such warranties (such warranties shall include, without additional charge, the repair of any portion of the Building or common area which may be damaged as a result of the removal or replacement of the defective Tenant Improvements).

4.2 Permits. Tenant shall obtain all building permits and other permits, authorizations and approvals which may be required in connection with, or to satisfy all Laws applicable to, the construction of the Tenant Improvements in accordance with the Approved Working Drawings (the “Permits”); provided, that Tenant is not required to obtain Permits that would be duplicative of permits obtained by Landlord for the Landlord’s Work. Tenant agrees that neither Landlord nor Landlord’s consultants shall be responsible for obtaining any Permits or the certificate of occupancy for the Premises, and that obtaining the same shall be Tenant’s responsibility; provided, however, that Landlord will cooperate with Tenant in executing permit applications and performing other ministerial acts reasonably necessary to enable Tenant to obtain any such Permit or certificate of occupancy. Any amendments or revisions to the Approved Working Drawings that may be necessary to obtain any such Permits, or which may be required by city officials or inspectors to comply with code rulings or interpretations, shall be prepared by Tenant’s Architect, at Tenant’s expense (provided that to the extent funds are available, such expense may be reimbursed from the Construction Allowance), and submitted to Landlord for Landlord’s review and approval as a Change Order under Section 6 below, which approval shall not be unreasonably withheld, conditioned or delayed. If Landlord disapproves of such amendments or revisions, Landlord shall return the same to Tenant with a statement of Landlord’s reasons for disapproval, or specifying any required corrections. This procedure shall be repeated until Landlord approves the amendments or revisions and all Permits have been obtained for the Approved Working Drawings, as so amended. Tenant acknowledges and agrees that Tenant, at Tenant’s expense (subject to application of the Construction Allowance, to the extent available), is responsible for performing all accessibility and other work required to be performed in connection with the Tenant Improvement Work, including, but not limited to, any “path of travel” or other work outside the Premises; provided, however, that Landlord may elect upon written notice to Tenant, to perform any such work in the common area or elsewhere outside the Premises, at Tenant’s expense.

4.3 Commencement of Work. At least ten (10) days prior to the commencement of construction of the Tenant Improvements, or the delivery of any construction materials for the Tenant Improvement Work to the Premises, whichever is earlier, Tenant shall submit to Landlord a notice specifying the date Tenant will commence construction of the Tenant Improvements, the estimated Date of Substantial Completion, and the construction schedule provided by Tenant’s Contractor. In addition, prior to the commencement of construction of the Tenant Improvements, or the delivery of any construction materials for the Tenant Improvement Work to the Building, whichever is earlier, Tenant shall submit to Landlord the following: (a) all Permits required to commence construction of the Tenant Improvements; (b) a copy of the executed construction contract with Tenant’s Contractor, in the form previously approved by Landlord (not to be unreasonably withheld, conditioned or delayed), together with a detailed breakdown, by trade, of the estimated final costs to be incurred, or which have theretofore been incurred, in connection with the design and construction of the Tenant Improvements, which costs of construction form a basis for the amount of the construction contract; and (c) true and correct copies of all policies of insurance, or original certificates thereof executed by an authorized agent of the insurer or insurers, together with any endorsements referred to in Section 4.5 below, confirming to Landlord’s reasonable satisfaction compliance with the insurance requirements of this Work Letter.

4.4 Performance of Work. All work performed by Tenant’s Contractor shall: (a) conform to the Approved Working Drawings; (b) comply with all applicable Laws (including building codes), all applicable standards of the American Insurance Association and the National Electrical Code, and all building material manufacturer’s specifications; (c) comply with all rules and regulations from time to time reasonably adopted by Landlord to govern construction in or about the Building, including the Construction Rules and Regulations; (d) shall be performed in a good and professional manner, consistent with industry standards applicable to similar buildings in the Salt Lake City metropolitan area; and (e) be performed at such times and in such manner so as not to unreasonably interfere with the occupancy of any other tenant of the Building, the performance of any other work within the Building, or with Landlord’s maintenance or operation of the Building. At all reasonable times during construction of the Tenant Improvements, Landlord and Landlord’s employees and agents shall have the right to enter the Premises to inspect the Tenant Improvement Work, and to require the correction of any faulty work or any material deviation from the Approved Working Drawings. Tenant shall not close-up any Tenant Improvement Work affecting the life safety, telecommunications, heating, ventilation and air conditioning, plumbing, electrical or other Systems in the Premises until the same have been inspected and approved by Landlord’s agents, such inspection and approval not to be unreasonably delayed. No inspection or approval by Landlord of any such work shall constitute an endorsement thereof or any representation as to the adequacy thereof for any purpose or the conformance thereof with any applicable Laws, and Tenant shall be fully responsible and liable therefor. Tenant shall reimburse Landlord for the cost of any repairs, corrections or restoration which must be made, in Landlord’s good faith judgment, to the Premises or any other portion of the Building, if caused by the failure of Tenant’s Contractor or any other of Tenant’s agents, contractors or subcontractors (collectively, “Tenant’s Agents”) to comply with the Approved Working Drawings.

4.5 Insurance. At all times during the construction of the Tenant Improvements (and in the case of Products and Completed Operations Coverage, for 5 years following Date of Substantial Completion), in addition to the insurance required to be maintained by Tenant under the Lease, Tenant shall require all of Tenant’s Agents to maintain (a) Commercial General Liability Insurance with limits of not less than $2,000,000 for bodily injury and property damage, including personal injury and death, and Contractor’s Protective Liability, and Products and Completed Operations Coverage in an amount not less than $1,000,000 per incident; (b) Automobile Liability Insurance with a policy limit of not less than $1,000,000 each accident for bodily injury and property damage, providing coverage at least as broad as the Insurance Services Office (ISO) Business Auto Coverage form covering Automobile Liability, code 1 “any auto”, and insuring against all loss in connection with the ownership, maintenance and operation of automotive equipment that is owned, hired or non-owned; (c) Worker’s Compensation with statutory limits and Employer’s Liability Insurance with limits of not less than $500,000 per accident, $500,000 aggregate disease coverage and $100,000 disease coverage per employee. In addition, Tenant shall carry “Builder’s Risk” insurance in an amount approved by Landlord covering the construction of the Tenant Improvements, including such extended coverage endorsements as may be reasonably required by Landlord. Tenant’s liability insurance shall be written on an “occurrence” basis and shall name Landlord, the Holder of any superior lease, superior mortgage and Landlord’s designated agents as additional insureds (by endorsement reasonably acceptable to Landlord). The “Builder’s Risk” insurance shall name Landlord and such other parties as Landlord may specify as the loss payee(s) with respect to all proceeds received therefrom. All of the insurance required to be carried by Tenant hereunder shall provide that it is primary insurance, and not excess over or contributory with any other valid, existing, and applicable insurance in force for or on behalf of Landlord, shall provide that Landlord shall receive thirty (30) days’ written notice from the insurer prior to any cancellation or change of coverage, and shall be placed with companies which are rated A-:XIII or better in Best’s Key Rating Guide and licensed to business in the State of Utah. Tenant’s compliance with the provisions of this Section shall in no way limit Tenant’s liability under any of the other provisions of the Lease.

4.6 Liens. Tenant shall keep the Premises and the Building free from any liens arising out of work performed, materials furnished or obligations incurred by Tenant. Should Tenant fail to remove any such lien, then Section 8(d) of Lease shall apply. Promptly following completion of construction, Tenant shall provide Landlord a copy of a final unconditional lien release from Tenant’s Contractor and each of Tenant’s Agents who performed work or supplied materials for the Tenant Improvements. Upon completion of construction, Tenant shall promptly record a Notice of Completion in accordance with Utah law and provide a copy thereof to Landlord.

5. Responsibility for Design and Construction Costs.

5.1 Construction Allowance. Landlord will contribute to the costs of performing the Tenant Improvement Work, as depicted on the Approved Working Drawings, to the extent of the lesser of (a) One Hundred Thousand Dollars ($100,000.00) or (b) the actual cost for such work (the “Construction Allowance”). Tenant shall pay all costs in excess of the Construction Allowance for the design and construction of the Tenant Improvements. Except as otherwise specified in this Work Letter, the Construction Allowance may be applied only to the payment or reimbursement of: (i) architectural fees and costs, (ii) the cost of obtaining Permits and other similar approvals; (iii) the cost of demolishing, relocating, or constructing Tenant’s clean rooms located on the Project as of the date of the Lease or included in the Space Plan, and (iv) documented costs of labor and materials incorporated into the Tenant Improvements (excluding all costs of furnishings, fixtures, equipment, signage and other personal property, including switches, servers, routers and similar data and telecommunications cabling and equipment).

5.2 Disbursement of Construction Allowance. Provided that (a) this Lease is then in full force and effect, (b) Tenant is not then in default of any of its obligations under the Lease beyond any applicable notice or cure period, including, without limitation, Tenant’s obligations under this Work Letter to perform Tenant Improvement Work in accordance with the Approved Working Drawings and all applicable Laws, (c) Tenant has satisfactorily completed the Tenant Improvement Work and submitted to Landlord (if applicable and available) (i) two (2) full sets of blue line “as-built” drawings, together with a CAD disk showing the Tenant Improvements (updated by Tenant’s Architect as necessary to reflect all changes made to the Approved Working Drawings during the course of construction), (ii) a written statement from Tenant’s Architect that the work described on any such invoices has been completed in accordance with the Approved Working Drawings, (iii) properly executed statutory form unconditional mechanics’ lien releases from all of Tenant’s Agents, (iv) copies of all Permits, licenses, certificates and other governmental authorizations and approvals necessary in connection with, and indicating final approval of, the Tenant Improvement Work, (v) a statement of total design and construction fees and costs, and (vi) any other documents reasonably required by Landlord’s lender, and (d) Tenant has commenced business operations at the Premises, then Landlord shall pay the full amount of the Construction Allowance payable to Tenant hereunder within thirty (30) days following the full satisfaction of Tenant’s obligations set forth in parts (a), (b), (c) and (d) of this sentence. Tenant shall use commercially efforts to submit the documents described in clause (c) above to Landlord within thirty (30) days following completion of the Tenant Improvement Work. If Tenant fails to submit the foregoing documentation to Landlord within twelve (12) months after completion of the Tenant Improvement Work, Landlord shall have no further obligation to pay the Construction Allowance to Tenant, and Tenant shall be deemed to have waived any rights to receive the same.

6. Change Orders. Landlord will not unreasonably withhold its approval of (a) any request by Tenant, or by Tenant’s Contractor with Tenant’s approval, to amend or change the Approved Working Drawings, or (b) any change or amendment to the Approved Working Drawings that may be necessary to obtain any Permits, or which may be required by city officials or inspectors to comply with code rulings or interpretations (any of the foregoing, a “Change Order”), provided such Change Order does not diminish the quality of construction of the Tenant Improvements. Without limiting the generality of the foregoing, however, Tenant acknowledges that it shall not be unreasonable for Landlord to withhold consent to any Change Order if any of the circumstances listed in clauses 3.2(a) through 3.2(k) of this Work Letter apply. No material changes or modifications to the Approved Working Drawings shall be made unless by written Change Order signed by Landlord and Tenant. Tenant shall pay all costs attributable to Change Orders, including costs incurred by Landlord in reviewing proposed Change Orders (provided that to the extent funds are available, such costs may be paid or reimbursed from the Construction Allowance).

7. Ownership of Tenant Improvements. The Tenant Improvements shall be deemed, effective upon installation, to be a part of the Premises and the Building and shall be deemed to be the property of Landlord (subject to Tenant’s right to use the same during the Term of the Lease), and shall be surrendered at the expiration or earlier termination of the Term, unless Landlord shall have conditioned its approval of the Space Plans, Final Working Drawings or any Change Order on Tenant’s agreement to remove any items thereof, in which event, prior to the expiration or termination of the Term, the specified items shall be removed at Tenant’s expense, any damage caused by such removal shall be repaired, and the Premises shall be restored to their condition existing prior to the installation of the items in question, normal wear and tear excepted. The removal, repair and restoration described above shall be performed by Tenant.

EXHIBIT E

CONFIRMATION OF COMMENCEMENT DATE

______________, 2022

1960 South 4250 West LLC

c/o BCG Holdings, LLC

386 West 500 South Suite 100

Salt Lake City, Utah 84101

Ladies and Gentlemen:

Landlord and Tenant agree as follows:

1. Condition of Premises. Tenant has accepted possession of the Premises pursuant to the Lease. Any improvements required by the terms of the Lease to be made by Landlord have been completed to the full and complete satisfaction of Tenant in all respects, subject to latent defects and except for the punchlist items described on Exhibit A hereto (the “Punchlist Items”), and except for such latent defects and Punchlist Items, Landlord has fulfilled all of its duties under the Lease with respect to such initial improvements. Furthermore, Tenant acknowledges that the Premises are suitable for the Permitted Use.

2. Commencement Date. The Commencement Date of the Lease is __________, 2022.

3. Expiration Date. The Term is scheduled to expire on the last day of the 60th full calendar month of the Term following the Commencement Date, which date is ______________, 20___.

4. Contact Person. Tenant’s contact person in the Premises is:

1960 South 4250 West

Salt Lake City, Utah 84104

Attention: ___________________

Telephone: ___-___-____

Telecopy: ___-___-____

5. Ratification. All provisions, terms, conditions and agreements set forth in the Lease are reaffirmed, ratified, confirmed and approved in their entirety and shall remain in full force and effect. Additionally, Tenant further confirms and ratifies that, as of the date hereof, (a) the Lease is and remains in good standing and in full force and effect, and (b) to Tenant’s knowledge, Tenant has no claims, counterclaims, set-offs or defenses against Landlord arising out of the Lease or in any way relating thereto or arising out of any other transaction between Landlord and Tenant.

6. Binding Effect; Governing Law. Except as modified hereby, the Lease shall remain in full effect and this letter shall be binding upon Landlord and Tenant and their respective successors and assigns. This letter shall be governed by the laws of the state in which the Premises are located.

Please indicate your agreement to the above matters by signing this letter in the space indicated below and returning an executed original to us.

Agreed and accepted:

1960 SOUTH 4250 WEST LLC, a Utah limited

liability company

EXHIBIT A to CONFIRMATION OF COMMENCEMENT DATE

PUNCHLIST ITEMS

Please insert any punchlist items that remain to be performed by Landlord. If no items are listed below by Tenant, none shall be deemed to exist.

EXHIBIT F

FORM OF TENANT ESTOPPEL CERTIFICATE

The undersigned is the Tenant under the Lease (defined below) between 1960 SOUTH 4250 WEST LLC, a Utah limited liability company (“Landlord”), and the undersigned as Tenant, for the Premises in the industrial building located at 1960 South 4250 West, Salt Lake City, Utah 84104, and hereby certifies as follows: 

1. The Lease consists of the original Lease Agreement dated as of ______________, 2022, between Tenant and Landlord’s predecessor-in-interest and the following amendments or modifications thereto (if none, please state “none”): __________

The documents listed above are herein collectively referred to as the “Lease” and represent the entire agreement between the parties with respect to the Premises. All capitalized terms used herein but not defined shall be given the meaning assigned to them in the Lease.

2. The Lease is in full force and effect and has not been modified, supplemented or amended in any way except as provided in Section 1 above.

3. The Term commenced on __________, 2022 and the Term expires, excluding any renewal options, on __________, 20__, and Tenant has no option to purchase all or any part of the Premises or the Building or, except as expressly set forth in the Lease, any option to terminate or cancel the Lease.

4. Tenant currently occupies the Premises described in the Lease and Tenant has not transferred, assigned, or sublet any portion of the Premises nor entered into any license or concession agreements with respect thereto except as follows (if none, please state “none”): __________

5. All monthly installments of Basic Rent, all Additional Rent and all monthly installments of estimated Additional Rent have been paid when due through __________. The current monthly installment of Basic Rent is $__________.

6. To Tenant’s Knowledge, all conditions of the Lease to be performed by Landlord necessary to the enforceability of the Lease have been satisfied and Landlord is not in default thereunder. In addition, Tenant has not delivered any notice to Landlord regarding a default by Landlord thereunder. For purposes of this Estoppel Certificate, the term “Tenant’s Knowledge” shall mean Tenant’s actual knowledge without any independent investigation and without constructive or imputed knowledge.

7. As of the date hereof, to Tenant’s Knowledge, there are (a) no existing defenses or offsets or claims or any basis for a claim, that the undersigned has against Landlord, and (b) no event has occurred and no condition exists, which, with the giving of notice or the passage of time, or both, will constitute a default under the Lease.

8. No rental has been paid more than 30 days in advance and no security deposit has been delivered to Landlord except as provided in the Lease.

9. If Tenant is a corporation, partnership or other business entity, Tenant is a duly formed and existing entity qualified to do business in the state in which the Premises are located and each individual executing this Estoppel Certificate on behalf of Tenant has full right and authority to execute and deliver this Estoppel Certificate and that each person signing on behalf of Tenant is authorized to do so.

10. There are no actions pending against Tenant under any bankruptcy or similar laws of the United States or any state.

11. Other than in compliance with all applicable laws and in connection with the permitted use of the Premises, the undersigned has not used or stored any hazardous substances in the Premises.

12. Tenant is not itself, and is not directly or indirectly owned, controlled or supported by, a “Specially Designated National” or otherwise designated as a blocked person under any regulation of the Office of Foreign Assets Control, U.S. Department of Treasury (see: www.ustreas.gov/offices/enforcement/OFAC).

13. All tenant improvement work to be performed by Landlord under the Lease has been completed in accordance with the Lease and has been accepted by the undersigned, subject to latent defects, and all reimbursements and allowances due to the undersigned under the Lease in connection with any tenant improvement work have been paid in full. Notwithstanding the foregoing, Tenant makes no representation or assertion that Landlord’s improvements or repairs were performed in compliance with all applicable laws.

Tenant acknowledges that this Estoppel Certificate may be delivered to Landlord, Landlord’s Mortgagee or to a prospective mortgagee or prospective purchaser, and their respective successors and assigns, and acknowledges that Landlord, Landlord’s Mortgagee and/or such prospective mortgagee or prospective purchaser will be relying upon the statements contained herein in disbursing loan advances or making a new loan or acquiring the property of which the Premises are a part and that receipt by it of this certificate is a condition of disbursing loan advances or making such loan or acquiring such property. Notwithstanding the foregoing, Landlord, Landlord’s Mortgagee and/or such prospective mortgagee or prospective purchaser may not rely on any statements in this Estoppel Certificate known by them to be untrue. In the event of any inconsistencies between this Estoppel Certificate and the Lease, the terms of the Lease will control.

Executed as of ____________, 2022.

EXHIBIT G

TENANT’S PERMITTED USE

General Corporate Office Uses:

Biomedical Research and Development Laboratories and Clinical Laboratories Uses:

Biomedical Materials Manufacturing Uses:

Warehousing and Distribution Center Uses:

Preclinical Research and Development Center and Associated Vivarium Vies: