LEASE by and between PARADIGM RESOURCES, L.C., a Utah limited liability company, as Landlord and MAJESCO ENTERTAINMENT COMPANY, a Delaware corporation, d/b/a POLARITY TE, as Tenant SALT LAKE CITY, UTAH 84108
Exhibit 10.7
LEASE
by and
between
PARADIGM RESOURCES, L.C.,
a Utah limited liability company,
as
Landlord
and
MAJESCO ENTERTAINMENT COMPANY,
a Delaware corporation,
d/b/a POLARITY TE,
as
Tenant
000 XXXXXXX XXXXX, XXXXX 000
XXXX XXXX XXXX, XXXX 00000
000 XXXXXXX XXXXX – SALT LAKE CITY, UTAH
TABLE OF CONTENTS
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ARTICLE I. BASIC
LEASE PROVISIONS; ENUMERATION OF EXHIBITS
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1
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SECTION 1.01.
BASIC LEASE PROVISIONS
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1
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SECTION 1.02.
SIGNIFICANCE OF A BASIC LEASE PROVISION.
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3
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SECTION 1.03.
ENUMERATION OF EXHIBITS.
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3
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ARTICLE II. GRANT
AND LEASED PREMISES
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3
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SECTION 2.01.
LEASED PREMISES.
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3
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ARTICLE III.
RENT
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4
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SECTION 3.01. BASE
MONTHLY RENT.
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4
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SECTION
3.02.
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4
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SECTION
3.03.
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4
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SECTION
3.04.
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4
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SECTION
3.05.
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4
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SECTION 3.06.
TAXES.
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4
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SECTION 3.07.
PAYMENTS.
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4
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SECTION 3.08.
ADDITIONAL RENT.
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4
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ARTICLE IV. RENTAL
TERM, COMMENCEMENT DATE & PRELIMINARY TERM
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5
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SECTION 4.01.
RENTAL TERM.
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5
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SECTION 4.02.
RENTAL TERM COMMENCEMENT DATE AND TERMINATION DATE.
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5
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SECTION 4.03.
PRELIMINARY TERM.
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5
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SECTION 4.04. END
OF RENTAL TERM.
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5
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ARTICLE V.
CONSTRUCTION OF LEASED PREMISES
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5
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SECTION 5.01.
CONSTRUCTION OF LEASED PREMISES BY LANDLORD.
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5
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SECTION 5.02.
DELIVERY OF POSSESSION FOR TENANT’S WORK.
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5
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SECTION 5.03.
CHANGES AND ADDITIONS BY LANDLORD.
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5
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SECTION 5.04.
TERMINATING LEASE FOR REMODELING.
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6
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ARTICLE VI.
TENANT’S WORK
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6
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SECTION 6.01.
REMODEL OF LEASED PREMISES BY TENANT.
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6
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SECTION 6.02.
SETTLEMENT OF DISPUTES.
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7
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SECTION 6.03.
PROJECT CLOSE-OUT.
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7
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ARTICLE VII.
PERMITTED USE
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8
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SECTION 7.01.
PERMITTED USE OF LEASED PREMISES.
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8
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SECTION 7.02.
HAZARDOUS SUBSTANCES.
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8
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ARTICLE VIII.
OPERATION AND MAINTENANCE OF COMMON AREAS
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9
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SECTION 8.01.
CONSTRUCTION AND CONTROL OF COMMON AREAS.
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9
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SECTION 8.02.
LICENSE.
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9
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ARTICLE IX.
ALTERATIONS, SIGNS, LOCKS & KEYS
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10
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SECTION 9.01.
ALTERATIONS.
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10
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SECTION 9.02.
REMOVAL BY TENANT.
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10
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SECTION 9.03.
SIGNS.
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10
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SECTION
9.04.
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10
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SECTION 9.05.
LOCKS AND KEYS.
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10
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ARTICLE X.
MAINTENANCE AND REPAIRS; ALTERATIONS; ACCESS
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11
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SECTION 10.01.
LANDLORD’S OBLIGATION FOR MAINTENANCE.
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11
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SECTION 10.02.
TENANT’S OBLIGATION FOR MAINTENANCE.
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11
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SECTION 10.03.
SURRENDER AND RIGHTS UPON TERMINATION.
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11
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ARTICLE XI.
INSURANCE AND INDEMNITY
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12
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SECTION 11.01.
LIABILITY INSURANCE AND INDEMNITY.
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12
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SECTION 11.02.
FIRE AND CASUALTY INSURANCE.
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12
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SECTION 11.03.
WAIVER OF SUBROGATION.
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13
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SECTION 11.04.
INDEMNIFICATION.
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13
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000 XXXXXXX XXXXX – SALT LAKE CITY, UTAH
TABLE OF CONTENTS
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ARTICLE XII.
UTILITY CHARGES
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13
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SECTION 12.01.
OBLIGATION OF LANDLORD.
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13
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SECTION 12.02.
OBLIGATIONS OF TENANT.
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14
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SECTION
12.03.
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14
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SECTION 12.04.
LIMITATIONS ON LANDLORD’S LIABILITY.
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14
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ARTICLE XIII.
ESTOPPEL AND OFF-SET STATEMENT, ATTORNMENT AND
SUBORDINATION
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15
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SECTION 13.01.
ESTOPPEL AND OFF-SET STATEMENT.
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15
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SECTION 13.02.
ATTORNMENT.
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15
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SECTION 13.03.
SUBORDINATION.
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15
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SECTION 13.04.
MORTGAGEE SUBORDINATION.
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15
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SECTION 13.05.
REMEDIES.
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15
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ARTICLE XIV.
ASSIGNING, MORTGAGING, SUBLETTING,
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16
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CHANGE
IN OWNERSHIP BY TENANT
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16
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SECTION 14.01.
CONSENT REQUIRED.
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16
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SECTION 14.02.
OPTION TO TERMINATE.
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16
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SECTION 14.03.
CONDITIONS OF CONSENT.
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16
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SECTION 14.04.
STANDARDS OF REASONABLENESS IN WITHHOLDING CONSENT.
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16
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SECTION 14.05.
DOCUMENTATION OF ASSIGNMENT.
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17
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SECTION 14.06.
CONTINUING LIABILITY OF TENANT AND GUARANTOR.
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17
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ARTICLE XV. WASTE
OR NUISANCE
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17
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SECTION 15.01.
WASTE OR NUISANCE.
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17
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ARTICLE XVI.
NOTICES
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17
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SECTION 16.01.
NOTICES.
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17
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ARTICLE XVII.
DESTRUCTION OF THE LEASED PREMISES
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18
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SECTION 17.01.
DESTRUCTION.
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18
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ARTICLE XVIII.
CONDEMNATION
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18
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SECTION 18.01.
CONDEMNATION.
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18
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ARTICLE XIX.
DEFAULT OF TENANT
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19
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SECTION 19.01.
DEFAULT - RIGHT TO RE-ENTER.
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19
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SECTION 19.02.
DEFAULT - RIGHT TO RE-LET.
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19
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SECTION 19.03.
LEGAL EXPENSES.
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19
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ARTICLE XX.
BANKRUPTCY, INSOLVENCY OR RECEIVERSHIP
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20
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SECTION 20.01.
RIGHT OF TERMINATION.
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20
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SECTION 20.02.
BANKRUPTCY.
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20
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ARTICLE XXI.
LANDLORD ACCESS
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21
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SECTION 21.01.
LANDLORD ACCESS.
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21
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ARTICLE XXII.
TENANT’S PROPERTY AND LANDLORD’S LIEN
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21
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SECTION 22.01.
TAXES ON LEASEHOLD.
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21
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SECTION 22.02.
LOSS AND DAMAGE.
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21
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SECTION 22.03.
NOTICE BY TENANT.
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21
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SECTION 22.04.
LANDLORD’S LIEN.
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21
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SECTION 22.05.
LANDLORD’S SUBORDINATION.
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21
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ARTICLE XXIII.
HOLDING OVER
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21
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SECTION 23.01.
HOLDING OVER.
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21
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SECTION 23.02.
SUCCESSORS.
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22
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ARTICLE XXIV.
RULES AND REGULATIONS
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22
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SECTION 24.01.
RULES AND REGULATIONS.
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22
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ARTICLE XXV. QUIET
ENJOYMENT
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22
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SECTION 25.01.
QUIET ENJOYMENT.
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22
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ARTICLE XXVI.
SECURITY DEPOSIT
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22
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SECTION 26.01.
SECURITY DEPOSIT.
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22
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SECTION 26.02.
TRANSFER OF LANDLORD’S INTEREST IN THE SECURITY
DEPOSIT.
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22
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000 XXXXXXX XXXXX – SALT LAKE CITY, UTAH
TABLE OF CONTENTS
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ARTICLE XXVII.
MISCELLANEOUS PROVISIONS
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23
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SECTION 27.01.
WAIVER.
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23
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SECTION 27.02.
ENTIRE LEASE AGREEMENT.
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23
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SECTION 27.03.
INTERPRETATION, USE OF PRONOUNS.
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23
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SECTION 27.04.
FORCE MAJEURE.
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23
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SECTION 27.05.
LOSS AND DAMAGE.
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23
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SECTION 27.06.
CAPTIONS AND SECTION NUMBERS.
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23
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SECTION 27.07.
BROKER’S COMMISSION.
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24
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SECTION 27.08.
RECORDING.
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24
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SECTION 27.09.
CONSENT NOT UNREASONABLY WITHHELD.
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24
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SECTION 27.10.
FURNISHING OF FINANCIAL STATEMENTS.
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24
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SECTION 27.11.
TIME OF ESSENCE.
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24
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SECTION 27.12.
ACCORD AND SATISFACTION.
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24
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SECTION 27.13. NO
OPTION.
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24
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SECTION 27.14.
ANTI-DISCRIMINATION.
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24
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SECTION 27.15.
SEVERABILITY.
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24
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SECTION 27.16.
SURVIVAL OF OBLIGATIONS.
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25
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SECTION 27.17.
REPRESENTATION REGARDING AUTHORITY.
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25
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SECTION 27.18.
TENANT’S LIABILITY.
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25
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SECTION 27.19.
LANDLORD’S LIABILITY.
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25
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SECTION 27.20.
COUNTERCLAIM AND JURY TRIAL.
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25
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SECTION 27.21.
TRANSFER OF LANDLORD’S INTEREST IN THE LEASED
PREMISES.
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25
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SECTION 27.22.
TENANT SELECTION BY LANDLORD.
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25
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SECTION 27.23.
DISCLOSURE OF PARTIES.
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25
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SECTION 27.24.
EXECUTIVE ORDER CERTIFICATION.
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25
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ADDITIONAL
PROVISIONS
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26
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SIGNATURES
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27
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ACKNOWLEDGMENT OF
TENANT
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28
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ACKNOWLEDGMENTS OF
LANDLORD
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29
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EXHIBIT
“A”
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30
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EXHIBIT
“B”
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31
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(hereinafter
“Lease”)
(A)
EFFECTIVE DATE:
_______________________________, 2016 (“Effective Date”)
(B)
LANDLORD: PARADIGM RESOURCES, L.C., a Utah limited
liability company (“Landlord”)
(C)
ADDRESS OF LANDLORD FOR NOTICES
(Section
16.01):
Paradigm Resources,
L.C.
c/o
Woodbury Corporation
Attn:
Lease Administration
0000
Xxxx Xxxxxxx Xxx, Xxxxx 000
Xxxx
Xxxx Xxxx, Xxxx 00000
With a copy
to:
Paradigm Resources,
L.C.
c/o
Woodbury Corporation
Attn:
Legal Department
0000
Xxxx Xxxxxxx Xxx, Xxxxx 000
Xxxx
Xxxx Xxxx, Xxxx 00000
(D)
TENANT: Majesco Entertainment Company, a
Delaware corporation, d/b/a PolarityTE (“Tenant”) (Tax ID:
00-0000000)
(E)
ADDRESS OF TENANT FOR NOTICES
(Section 16.01): 0000-X
Xxxxxx Xxxx, Xxxxx Xxxxxxxxxx, Xxx Xxxxxx 00000
(F)
PERMITTED USE (Section 7.01): Research
and development lab and office use (“Permitted Use”), and for no other
use without the prior written consent of Landlord.
(G)
TENANT’S TRADE NAME:
PolarityTE
(H)
BUILDING (Section 2.01): An office
building situated at 000 Xxxxxxx Xxxxx, in the City of Salt Lake,
County of Salt Lake, State of Utah (“Building”).
(I)
LEASED PREMISES (Section 2.01): 000
Xxxxxxx Xxxxx, Xxxxx 000, Xxxx Xxxx Xxxx, Xxxx 00000, consisting of
approximately 5,331 square feet of gross rentable area
(“Leased
Premises”), as depicted on Exhibit
“A”.
(J)
DELIVERY OF POSSESSION (Section 5.02):
The Leased Premises shall be delivered to Tenant within ten (10)
days of the Effective Date of this Lease (“Delivery of Possession”), as
certified by a notice of Delivery of Possession. Preliminary Term
(as defined in Section 4.03) begins on Delivery of
Possession.
(K)
RENTAL TERM, COMMENCEMENT AND EXPIRATION
DATE (Sections 4.01 and
4.02): The term of this Lease shall commence on the earlier
to occur of (a) January 1, 2017 or (b) the date Tenant is open and
operating in the Leased Premises (“Rental Term Commencement Date”),
and shall be for a period of one (1) full Lease Year (as defined in
Section 4.01) ending December 31, 2017 (“Rental Term”), as certified by a
notice of Rental Term Commencement Date.
-1-
(L)
BASE MONTHLY RENT (Section 3.01): Twelve Thousand Four
Hundred Thirty-Nine and 00/100 Dollars ($12,439.00) per month
(“Base Monthly
Rent”).
(M)
Intentionally
Omitted.
(N)
OPERATING EXPENSES: All operating
expenses for the Leased Premises and the Building shall be paid for
by Landlord.
(O)
Intentionally
Omitted.
(P)
UTILITIES AND SERVICES: Subject to the
provisions of Sections 12.01 and 12.02, this Lease provides that
the utilities and services shall be paid or reimbursed by
Tenant.
(Q)
HOURS OF OPERATION (Section 12.03):
Tenant shall have access to the Leased Premises twenty-four (24)
hours a day, seven (7) days per week. Standard operating hours for
the Building shall be 6:00 a.m. to 9:00 p.m., Monday through
Friday, and 8:00 a.m. to 1:00 p.m. on Saturday, excluding holidays
(“Standard Operating
Hours”).
(R)
PREPAID RENT: Twelve Thousand Four
Hundred Thirty-Nine and 00/100 Dollars ($12,439.00) paid by Tenant
upon Tenant’s execution of this Lease to be applied to the
first installment of Base Monthly Rent due hereunder.
(S)
SECURITY DEPOSIT (Section 26.01): Twelve
Thousand Five Hundred and 00/100 Dollars ($12,500.00)
(“Security
Deposit”) to be paid by Tenant upon Tenant’s
execution of this Lease.
(T)
Intentionally
Omitted.
(U)
Intentionally
Omitted.
(V)
Intentionally
Omitted.
(W)
TENANT’S WORK (Section 6.01):
Tenant shall finish the Leased Premises in accordance with plans
and specifications approved by Landlord. Prior to commencement of
construction, Tenant shall submit an electronic copy of all plans
to Landlord for review and approval as set forth in Section
6.01.
(X)
LEASED PREMISES CONDITION: Except as hereinafter
provided, Landlord covenants that actual possession of the Leased
Premises shall be delivered to Tenant in “as is”
condition. It is agreed that by taking possession of the Leased
Premises as a tenant, Tenant formally accepts the same and
acknowledges that the Leased Premises is in the condition called
for hereunder.
[Remainder of Page Intentionally Left Blank]
-2-
SECTION 1.02. SIGNIFICANCE OF A
BASIC LEASE PROVISION. The
foregoing provisions of Section 1.01 summarize for convenience only
certain fundamental terms of this Lease delineated more fully in
the articles and sections referenced therein. In the event of a
conflict between the provisions of Section 1.01 and the balance of
this Lease, the latter shall control.
SECTION 1.03. ENUMERATION OF
EXHIBITS. The
exhibits enumerated in this Section 1.03 and attached to this Lease
are incorporated in this Lease by this reference and are to be
construed as a part of this Lease. In the event of a conflict
between the body of this Lease and the exhibits, the body of this
Lease shall control.
EXHIBIT
“A” -
SITE PLAN
EXHIBIT
“B” -
LEGAL DESCRIPTION
SECTION 2.01. LEASED
PREMISES. Landlord
has heretofore obtained a long-term ground lease covering that
certain tract of real property situated in the University of Utah
Research Park in Salt Lake City, State of Utah, more particularly
described in Exhibit “B” attached hereto, together with
certain easement for access rights. (Such tract is hereinafter
referred to as the “Property”).
Landlord owns the
Building on the Property referred to in Section 1.01(H) suitable
for use as office, research and limited complementary retail space,
together with related parking facilities and other improvements
necessary to enable the Building to be so used (the Building and
related facilities and improvements are hereinafter collectively
referred to as the “Improvements”).
In
consideration for the rent to be paid and covenants to be performed
by Tenant, Landlord hereby leases to Tenant, and Tenant leases from
Landlord for the Rental Term and upon the terms and conditions
herein set forth, the Leased Premises described in Section 1.01(I),
located in the Building. Gross rentable area measurements herein
specified are from the exterior of the perimeter walls of the
Building to the center of the interior walls.
The
exterior walls and roof of the Leased Premises and the areas
beneath the Leased Premises are not demised hereunder, and the use
thereof together with the right to install, maintain, use, repair,
and replace pipes, ducts, conduits, and wires leading through the
Leased Premises in locations which do not materially and adversely
interfere with Tenant’s use thereof and serving other parts
of the Building or buildings are hereby reserved to Landlord.
Landlord reserves (a) such access rights through the Leased
Premises as may be reasonably necessary to enable access by
Landlord to the balance of the Building and reserved areas and
elements as set forth above; and (b) the right to install or
maintain meters on the Leased Premises to monitor use of utilities.
In exercising such rights, Landlord shall use reasonable efforts so
as to not commit waste upon the Leased Premises and as far as
practicable shall not materially and adversely interfere with
Tenant’s use of the Leased Premises and shall minimize
annoyance, interference or damage to Tenant and the Leased Premises
when making modifications, additions or repairs.
Subject
to the provisions of Article VIII and Section 27.11, Tenant and its
employees, contractors, customers, agents and invitees have the
right to the non-exclusive use, in common with existing tenants of
such unreserved automobile parking spaces, driveways, footways, and
other facilities designated for common use within the Building,
except that with respect to non-exclusive areas, Tenant shall cause
its employees to park their cars only in areas specifically
designated from time to time by Landlord for that purpose. Landlord
shall have the right to designate, in its sole business judgment,
certain spaces as “visitor” parking spaces and Tenant
shall use its best efforts to cause its employees not to park in
such visitor parking.
-3-
ARTICLE III. RENT
SECTION 3.01. BASE MONTHLY
RENT. Tenant
agrees to pay to Landlord Base Monthly Rent in the amounts set
forth in Section 1.01(L) at such place as Landlord may designate,
without prior demand therefor, without offset or deduction and in
advance on or before the first day of each calendar month during
the Rental Term, including any Rental Term extension or renewal
thereof, commencing on the Rental Term Commencement Date. In the
event the Rental Term Commencement Date occurs on a day other than
the first day of a calendar month, then Base Monthly Rent to be
paid on the Rental Term Commencement Date shall include both Base
Monthly Rent for the first full calendar month occurring after the
Rental Term Commencement Date, plus Base Monthly Rent for the
initial fractional calendar month pro-rated on a per-diem basis
(based upon a thirty (30) day month).
(a) Landlord
shall pay all real property taxes and assessments which are levied
against or which apply to the Building with respect to the Leased
Premises.
(b) Tenant
shall pay, prior to delinquency, all taxes, assessments, charges,
and fees which during the Rental Term, or any Rental Term extension
or renewal thereof, may be imposed, assessed, or levied by any
governmental or public authority against or upon Tenant’s use
of the Leased Premises or any inventory, personal property,
fixtures or equipment kept or installed, or permitted to be located
therein by Tenant.
SECTION 3.07. PAYMENTS.
All
payments of Base Monthly Rent, Additional Rent (as defined in
Section 3.08) and other payments to be made to Landlord shall be
made on a timely basis and shall be payable to Landlord or as
Landlord may otherwise designate. All such payments shall be mailed
or delivered to Landlord’s principal office set forth in
Section 1.01(C), or at such other place as Landlord may designate
from time to time in writing. If mailed, all payments shall be
mailed in sufficient time and with adequate postage thereon to be
received in Landlord’s account by no later than the due date
for such payment. If Tenant fails to pay any Base Monthly Rent,
Additional Rent or any other amounts or charges within ten (10)
days of the date when due, Tenant shall pay interest from the due
date of such past due amounts to the date of payment, both before
and after judgment at a rate equal to the greater of fifteen
percent (15%) per annum or two percent (2%) over the prime rate or
base rate charged by Citibank of New York at the due date of such
payment; provided however, that in any case the maximum amount or
rate of interest to be charged shall not exceed the maximum
non-usurious rate in accordance with applicable law. In addition,
Tenant shall pay a late fee equal to four percent (4%) of such past
due amount to compensate Landlord for extra administrative,
collection, processing, accounting and other costs incurred through
Tenant’s nonpayment.
SECTION 3.08. ADDITIONAL
RENT. Tenant
shall pay as “Additional
Rent” any and all sums of money or charges required to
be paid by Tenant under this Lease whether or not the same be
designated as Additional Rent. If such amounts or charges are not
paid at the time provided for in this Lease, they shall
nevertheless, if not paid when due, be collectible as Additional
Rent with the next installment of Base Monthly Rent thereafter
falling due hereunder, but nothing herein contained shall be deemed
to suspend or delay the payment of any amount of money or charge at
the time the same becomes due and payable hereunder, or limit any
interest, late fee or other remedy of Landlord.
-4-
ARTICLE IV. RENTAL TERM, COMMENCEMENT DATE & PRELIMINARY
TERM
SECTION 4.01. RENTAL
TERM. The initial
term of this Lease shall be for the period defined as the Rental
Term in Section 1.01(K), plus the partial calendar month, if any,
occurring after the Rental Term Commencement Date if the Rental
Term Commencement Date occurs other than on the first day of a
calendar month. “Lease
Year(s)” shall include twelve (12) calendar months,
except that the first Lease Year shall also include any partial
calendar month beginning on the Rental Term Commencement
Date.
SECTION 4.02. RENTAL TERM
COMMENCEMENT DATE AND TERMINATION DATE. The Rental
Term of this Lease and Tenant’s obligation to pay rent
hereunder shall commence on the Rental Term Commencement Date as
set forth in Section 1.01(K). Each of the parties hereto agrees,
upon demand of the other, to execute a Rental Term Commencement
Date notice, expressing the commencement and termination dates of
the Rental Term as soon as the commencement and termination dates
have been determined.
SECTION 4.03. PRELIMINARY
TERM. The period
between the date Tenant enters upon the Leased Premises and the
Rental Term Commencement Date shall be designated as the
“Preliminary
Term” during which no Base Monthly Rent shall accrue;
however, other covenants and obligations of Tenant shall be in full
force and effect. Delivery of Possession of the Leased Premises to
Tenant, as provided in Section 5.02, shall be considered
“entry” by Tenant and commencement of the Preliminary
Term.
SECTION 4.04. END OF RENTAL
TERM. This Lease,
and the tenancy hereby created, shall terminate at the end of the
Rental Term, or any Rental Term extension or renewal thereof,
without the necessity of any notice from either Landlord or Tenant
to terminate the same, and Tenant hereby waives notice to vacate
the Leased Premises and agrees that Landlord shall be entitled to
the benefit of all provisions of law respecting the summary
recovery of possession of the Leased Premises from Tenant holding
over to the same extent as if statutory notice has been
given.
SECTION 5.01. CONSTRUCTION OF
LEASED PREMISES BY LANDLORD. Landlord has
constructed the Building in which the Leased Premises is located.
Tenant is leasing the Leased Premises in “as is”
condition.
SECTION 5.02. DELIVERY OF
POSSESSION FOR TENANT’S WORK. Except
as expressly stated otherwise, Landlord covenants that actual
possession of the Leased Premises shall be delivered to Tenant in
“as is” condition. It is agreed that by taking
possession of the Leased Premises as a tenant, Tenant formally
accepts the same and acknowledges that the Leased Premises is in
the condition called for hereunder.
SECTION 5.03. CHANGES AND
ADDITIONS BY LANDLORD. Landlord
hereby reserves the right at any time, and from time to time, to
make alterations or additions to, and to build additional stories
on the Building in which the Leased Premises is contained and to
build adjoining the same and to modify the existing parking or
other Common Areas to accommodate additional buildings. Landlord
also reserves the right to construct other buildings or
improvements on the Property from time to time, on condition that
if the Property is expanded so as to include any additional
buildings, Landlord agrees to create or maintain a parking ratio
adequate to meet local laws and ordinances, including the right to
add land to the Common Areas or to erect parking structures
thereon.
-5-
SECTION
5.04. TERMINATING LEASE FOR REMODELING. In
Landlord’s sole discretion, if it becomes necessary to
terminate this Lease in order to reasonably perform alterations or
additions to the Building, Landlord may terminate this Lease upon
one (1) year’s prior written notice. In such case, Tenant
shall have the right to remove its trade fixtures (but no building
improvements) on or before the termination date of this Lease and
Landlord shall pay to Tenant as liquidated damages for such
termination, a sum equal to the unamortized portion of
Tenant’s building improvements as certified to Landlord in
accordance with Section 6.01 hereof, assuming that such
amortization is on a straight line basis extending over the firm
Rental Term and at an interest rate equal to the lower of ten
percent (10%) per annum or the rate in fact applicable to
Tenant’s existing financing of such improvements. Landlord
may elect to offset any sums payable by Landlord to Tenant against
any sums payable by Tenant to Landlord. In addition, Tenant shall
have the right to lease such other available space of comparable
size within the Building as may be mutually agreeable to Landlord
and Tenant for the remainder of the Rental Term at the same Base
Monthly Rent rate per square foot as Tenant is required to pay
Landlord in Section 3.01.
SECTION 6.01. REMODEL OF LEASED
PREMISES BY TENANT. Subject
to Section 9.01, Tenant agrees, prior to the Rental Term
Commencement Date, at Tenant’s sole cost and expense, to
provide all work of whatsoever nature in accordance with its plans
and specifications, subject to Landlord’s prior written
approval (“Tenant’s
Work”). Empty conduit extending to the Leased Premises
for telephone and data lines, from central locations in the
building, shall be provided by Landlord. All terminations,
crossovers, and distribution wiring from panels to the various
equipment and receptacles shall be provided by Tenant at
Tenant’s sole cost and expense. Tenant agrees to furnish
Landlord, within the time periods designated by Landlord, with a
complete and detailed set of plans and specifications drawn by a
registered architect (or by some other qualified person acceptable
to Landlord) setting forth and describing Tenant’s Work in
such detail as Landlord may require and in compliance with the
initial permit set drawings and the final construction set
documents approved by Landlord. If such plans and specifications
are not so furnished by Tenant within the required time periods
designated by Landlord, then Landlord may, at its option, in
addition to other remedies Landlord may enjoy, cancel this Lease at
any time thereafter while such plans and specifications have not
been so furnished. Tenant shall remit one (1) electronic copy of
any and all plans and specifications to Landlord at the following
email address:
xxxxxxxx@xxxxxxxxxxxx.xxx
Additional physical
copies can be sent to:
Woodbury
Corporation
Attn:
Architecture
0000
Xxxxxxx Xxx, Xxxxx 000
Xxxx
Xxxx Xxxx, Xxxx 00000-0000
With a
copy to:
Woodbury
Corporation
Attn:
Lease Administration
0000
Xxxxxxx Xxx, Xxxxx 000
Xxxx
Xxxx Xxxx, Xxxx 00000-0000
-6-
No
material deviation from the final set of plans and specifications,
once submitted to and approved by Landlord, shall be made by Tenant
without Landlord’s prior written consent. Landlord shall have
the right to approve or disapprove Tenant’s architect and
contractor to be used in performing Tenant’s Work, and the
right to require and approve insurance or bonds to be provided by
Tenant or such contractors. In due course, after completion of
Tenant’s Work, Tenant shall certify to Landlord the itemized
cost of Tenant improvements and fixtures located upon the Leased
Premises. Any design costs incurred by Landlord, including space
planning, preliminary and final design and engineering costs, as
well as municipal and/or construction plan review fees, permit
fees, and/or impact fees shall be part of Tenant’s Work and
may be applied to any, Landlord’s construction cost cap
and/or any additional allowance. Additional costs shall include,
but not be limited to, any costs incurred due to Tenant requested
changes which are a result of change orders requiring extraordinary
design or engineering applications. To the extent that Landlord
elects to perform certain Tenant’s Work, Tenant shall pay
Landlord for such work within ten (10) days of invoice by
Landlord.
SECTION 6.02. SETTLEMENT OF
DISPUTES. It is
understood and agreed that any disagreement or dispute which may
arise between Landlord and Tenant with reference to the work to be
performed by Landlord shall be resolved by Landlord’s
architect, whose good faith decision shall be final and binding on
both Landlord and Tenant.
SECTION 6.03. PROJECT
CLOSE-OUT. Where
Tenant’s Work is performed in accordance with Section 6.01,
the following procedures shall apply:
(a) Preconstruction.
Prior to the commencement of construction, Tenant and
Tenant’s contractor shall participate in a preconstruction
meeting and provide all documentation requested by
Landlord.
(b) Field
Inspection. On completion of construction, Landlord and
Tenant shall conduct an inspection of the improvements to identify
whether there are any incomplete items or other deficiencies. A
punch list of such deficiencies shall be prepared. Tenant shall
make all corrections within no more than fifteen (15) days
thereafter.
(c) Required
Project Closeout Information. Tenant shall provide an
electronic copy of items (i) through (v) below to Landlord at the
following email address:
xxxxxxxxxx@xxxxxxxxxxxx.xxx
Additional,
physical copies can be sent to:
Woodbury
Corporation
Attn:
Architecture
0000
Xxxxxxx Xxx, Xxxxx 000
Xxxx
Xxxx Xxxx, Xxxx 00000-0000
With a
copy to:
Woodbury
Corporation
Attn:
Lease Administration
0000
Xxxxxxx Xxx, Xxxxx 000
Xxxx
Xxxx Xxxx, Xxxx 00000-0000
(i) As-built
drawings depicting changes to the construction documents that
occurred during construction, organized according to the original
construction documents.
-7-
(ii) A
list of all subcontractors and major material and equipment
supplies having contracts greater than Five Thousand Dollars
($5,000.00). The list shall include the actual final contract value
of the contractor’s and each subcontractors’ work.
Also, include a copy of contractor’s final application for
payment with a cost breakdown of the various categories of
work.
(iii) Copies
of final unconditional lien waivers from Tenant’s general
contractor, each subcontractor and material supplier who have
provided materials, labor and/or services during the construction
of Tenant’s Work, and any person who has filed a preliminary
lien notice with the State’s registry. Tenant shall include a
copy of the State registry of preliminary lien notices
demonstrating that all rights to claim have been removed. In the
event that final unconditional lien releases are not available,
contractor shall submit final lien waivers conditioned on final
payment. Such waivers shall indicate the amount of payment due.
Contractor shall include on its list of subcontractors, a column
indicating the amount due each subcontractor. In the event of
disputes, reasonable evidence shall be required showing that any
lien rights have been bonded over and that the Tenant is contesting
such matters in good faith and by appropriate proceedings, or upon
evidence of expiration of statute of limitation for filing
mechanics liens.
SECTION 7.01. PERMITTED USE OF
LEASED PREMISES. Tenant
shall use and occupy the Leased Premises during the continuance of
this Lease solely for the Permitted Use set forth in Section
1.01(F) and for purposes ordinarily incidental to such use and only
for such purposes and in such manner as are permitted both by the
Protective Covenants relating to the University of Utah Research
Park and by any existing legislation concerning the Research Park,
and for no other use without the prior written consent of Landlord.
Tenant shall promptly comply with all present or future laws,
ordinances, lawful orders and regulations affecting the Leased
Premises and the cleanliness, safety, occupancy and use of the
Leased Premises. Tenant shall not make any use of the Leased
Premises which shall cause cancellation or an increase in the cost
of any insurance policy covering the Leased Premises. Tenant shall
not keep or use on the Leased Premises any article, item, or thing
which is prohibited by the standard form of fire insurance policy.
Tenant shall not commit any waste upon the Leased Premises and
shall not conduct or allow any business, activity, or thing on the
Leased Premises which is an annoyance or causes damage to Landlord,
to other subtenants, occupants, or users of the improvements, or to
occupants of the vicinity. Tenant shall comply with and abide by
all laws, ordinances, and regulations of all municipal, county,
state, and federal authorities which are now in force or which may
hereafter become effective with respect to use and occupancy of the
Leased Premises. Landlord represents that to the best of its
knowledge and understanding, that upon Delivery of Possession, the
Building shall comply with all currently applicable laws,
ordinances and regulations of municipal, county, state and federal
authorities.
SECTION 7.02. HAZARDOUS
SUBSTANCES. Tenant
shall not use, produce, store, release, dispose or handle in or
about the Leased Premises or transfer to or from the Leased
Premises (or permit any other party to do such acts) any Hazardous
Substance (as defined herein) except in compliance with all
applicable Environmental Laws (as defined herein). Tenant shall not
construct or use any improvements, fixtures or equipment or engage
in any act on or about the Leased Premises that would require the
procurement of any license or permit pursuant to any Environmental
Law. Tenant shall immediately notify Landlord of (i) the existence
of any Hazardous Substance on or about the Leased Premises that may
be in violation of any Environmental Law (regardless of whether
Tenant is responsible for the existence of such Hazardous
Substance), (ii) any proceeding or investigation by any
governmental authority regarding the presence of any Hazardous
Substance on the Leased Premises or the migration thereof to or
from any other property, (iii) all claims made or threatened by any
third party against Tenant relating to any loss or injury resulting
from any Hazardous Substance, or (iv) Tenant’s notification
of the National Response Center of any release of a reportable
quantity of a Hazardous Substance in or about the Leased Premises.
“Environmental
Law(s)” shall mean any federal, state or local
statute, ordinance, rule, regulation or guideline pertaining to
health, industrial hygiene, or the environment, including without
limitation, the federal Comprehensive Environmental Response,
Compensation, and Liability Act. “Hazardous Substance(s)” shall mean
all substances, materials and wastes that are or become regulated,
or classified as hazardous or toxic, under any Environmental Law.
If it is
-8-
determined
that any Hazardous Substance exists on the Leased Premises
resulting from any act of Tenant or its employees, agents,
contractors, licensees, subtenants or customers, then Tenant shall
immediately take necessary action to cause the removal of such
substance and shall remove such within ten (10) days after
discovery. Notwithstanding the above, if the Hazardous Substance is
of a nature that cannot be reasonably removed within ten (10) days
Tenant shall not be in default if Tenant has commenced to cause
such removal and proceeds diligently thereafter to complete
removal, except that in all cases, any Hazardous Substance must be
removed within sixty (60) days after discovery thereof.
Furthermore, notwithstanding the above, if in the good faith
judgment of Landlord, the existence of such Hazardous Substance
creates an emergency or is of a nature which may result in
immediate physical danger to persons at the Property, Landlord may
enter upon the Leased Premises and remove such Hazardous Substances
and charge the cost thereof to Tenant as Additional
Rent.
SECTION 8.01. CONSTRUCTION AND
CONTROL OF COMMON AREAS. All
automobile parking areas, driveways, entrances and exits thereto,
and other facilities furnished by Landlord in or near the Building,
including if any, employee parking areas, truck ways, loading
docks, mail rooms or mail pickup areas, pedestrian sidewalks and
hallways, landscaped areas, retaining walls, stairways, restrooms
and other areas and improvements provided by Landlord for the
general use in common with all tenants, their officers, agents,
employees and customers (“Common Area(s)”), shall at all
times be subject to the exclusive control and management of
Landlord, which Landlord shall have the right from time to time to
establish, modify and enforce reasonable rules and regulations with
respect to all facilities and areas mentioned in this Section 8.01.
Landlord shall have the right to construct, maintain and operate
lighting and drainage facilities on or in all such areas and
improvements; to police the same, from time to time to change the
area, level, location and arrangement of parking areas and other
facilities hereinabove referred to; to restrict parking by tenants,
their officers, agents and employees to employee parking areas; to
close temporarily all or any portion of such areas or facilities to
such extent as may, in the opinion of counsel, be legally
sufficient to prevent a dedication thereof or the accrual of any
rights to any person or the public therein; to assign
“reserved” parking spaces for exclusive use of certain
tenants or for customer parking, to discourage non-employee and
non-customer parking; and to do and perform such other acts in and
to such areas and improvements as, in the exercise of good business
judgment, Landlord shall determine to be advisable with a view
toward maintaining of appropriate convenience uses, amenities, and
for permitted uses by tenants, their officers, agents, employees
and customers. Landlord shall operate and maintain the Common Areas
and Common Facilities (as defined herein) referred to above in such
a manner as it, in its sole discretion, shall determine from time
to time to be reasonable. Without limiting the scope of such
discretion, Landlord shall have the full right and authority to
employ all personnel and to make all rules and regulations
pertaining to and necessary for the proper operation, security and
maintenance of the Common Areas and Common Facilities. The Building
and/or Property signs, traffic control signs and other signs
determined by Landlord to be in best interest of the Building
and/or Property shall be considered part of the Common Areas and
Common Facilities.
For
purposes of this Article VIII, “Common Facilities” shall mean all
areas, space, equipment and special services available for the
common or joint use and/or benefit of any of the occupants of the
Building or their employees, agents, servants, customers and other
invitees, including without limitation, parking areas, access
roads, driveways, retaining walls, landscaped areas, truck
serviceways or tunnels, loading docks, pedestrian lanes, courts,
stairs, ramps and sidewalks, comfort and first-aid stations,
washrooms, restrooms, janitorial rooms, transformer vaults,
electrical rooms, sprinkler riser rooms, common equipment storage
rooms, information booths, canopies, utility systems, energy
management systems, roof drains, sumps and gutters, walls and
fences, and elevators and air-walkways, if any.
SECTION 8.02. LICENSE.
All
Common Areas and Common Facilities not within the Leased Premises,
which Tenant may be permitted to use and occupy, are to be used and
occupied under a revocable license, and if the amount of such areas
be diminished, Landlord shall not be subject to any liabilities nor
shall Tenant be entitled to any compensation or diminution or
abatement of rent, nor shall such diminution of such areas be
deemed constructive or actual eviction, so long as such revocations
or diminutions are deemed by Landlord to serve the best interests
of the Building and/or Property. The term of such revocable license
shall be coterminous with this Lease and shall not be revoked or
terminated during the Rental Term of this Lease
-9-
ARTICLE IX. ALTERATIONS, SIGNS, LOCKS & KEYS
SECTION 9.01.
ALTERATIONS. Tenant
shall not make or suffer to be made any alterations or additions to
the Leased Premises or any part thereof without the prior written
consent of Landlord, in Landlord’s sole and absolute
discretion. Any additions to, or alterations of the Leased
Premises, except movable furniture, equipment and trade fixtures,
shall become a part of the realty and belong to Landlord upon the
expiration of the Rental Term, or any Rental Term extension or
renewal thereof, or other termination or surrender of the Leased
Premises to Landlord. Tenant shall promptly pay all contractors and
materialmen so as to minimize the possibility of a lien attaching
to the Leased Premises, and should any such lien be made or filed,
Tenant shall bond against or discharge the same within ten (10)
days after written request by Landlord. Landlord reserves the right
to enter the Leased Premises to post, and keep posted, notices of
non-responsibility for any such liens.
SECTION 9.02. REMOVAL BY
TENANT. In the
event of any Landlord-approved remodeling by Tenant, Landlord
reserves title to all removed materials, building components,
plumbing and HVAC equipment, except that Tenant shall remove from
the Leased Premises those items which Landlord chooses not to
salvage. All new alterations, decorations, additions and
improvements paid by Tenant, if any, shall be deemed to belong to
Tenant although attached to the Leased Premises. However, none of
such items may be removed from the Leased Premises and shall become
the property of Landlord upon the expiration of the Rental Term, or
any Rental Term renewal or extension thereof, or other termination
or surrender of the Leased Premises to Landlord. Tenant shall not
remove any of such alterations, decorations, additions and
improvements, although trade fixtures installed by Tenant may be
removed if all rents due herein are paid in full and Tenant is in
full compliance with all other terms and conditions in this
Lease.
SECTION 9.03. SIGNS.
Tenant
shall not place or suffer to be placed or maintained on any
exterior door, wall or window of the Leased Premises, or elsewhere
in the Building, any sign, awning, marquee, decoration, lettering,
attachment, canopy, advertising matter or other thing of any kind,
and shall not place or maintain any decoration, lettering or
advertising matter on the glass of any window or door of the Leased
Premises without first obtaining Landlord’s written approval.
Tenant shall maintain any such sign, awning, canopy, decoration,
lettering, advertising matter or other things as may be approved in
good condition and repair at all times. Landlord may, at
Tenant’s cost, and without liability to Tenant, enter the
Leased Premises and remove any item erected in violation of this
Section 9.03. Landlord has established rules and regulations
governing the size, type and design of all signs, decorations,
etc., which are specifically set forth in accordance with the final
construction set documents approved by Landlord.
(a) The
Building shall be equipped with an electronic card access system at
entrance to the Building as well as primary doors of the Leased
Premises. Landlord shall issue, monitor, and program key cards for
Tenant and Tenant’s employees, as reasonably needed. When
employment relationships change, Tenant shall cooperate to attempt
to retrieve such key cards from employees leaving
Tenant.
(b) Where
key access exists, Tenant may change locks or install other locks
on doors, but if Tenant does, Tenant must provide Landlord with
duplicate keys or key cards, if any, within twenty-four (24) hours
after such change or installation.
(c) Tenant
shall, upon termination of this Lease, deliver to Landlord all the
keys and/or key cards to the Building and the Leased Premises
including any interior offices, toilet rooms, combinations to
built-in safes, etc. which shall have been furnished to or by
Tenant or are in the possession of Tenant.
-10-
ARTICLE X. MAINTENANCE AND REPAIRS; ALTERATIONS;
ACCESS
SECTION 10.01. LANDLORD’S
OBLIGATION FOR MAINTENANCE. Landlord
shall maintain and repair: (1) the areas outside the Leased
Premises including hallways, public restrooms, if any, general
landscaping, Landlord owned parking areas, driveways and walkways;
(2) the Building structure including the roof, exterior walls and
foundation; and (3) all Building plumbing, electrical, heating, and
air conditioning systems. However, if the need for such repairs or
maintenance results from any careless, wrongful or negligent act or
omission of Tenant or any malfunctioning furnishings and/or
fixtures, Tenant shall pay the entire cost of any such repair or
maintenance including a reasonable charge to cover Landlord’s
supervisory overhead. Landlord shall not be obligated to repair any
damage or defect until receipt of written notice from Tenant of the
need of such repair and Landlord shall have a reasonable time after
receipt of such notice in which to make such repairs. Tenant shall
give immediate notice to Landlord in case of fire or accidents in
the Leased Premises or in the Building of which the Leased Premises
is a part or of defects therein or in any fixtures or equipment
provided by Landlord.
(a) Tenant
shall provide its own janitorial service and keep and maintain the
Leased Premises, including the interior wall surfaces and windows,
floors, floor coverings and ceilings, in a clean, sanitary and safe
condition in accordance with applicable laws of the State and in
accordance with all directions, rules and regulations of the health
officer, fire marshal, insurance underwriter or rating bureau
designated by Landlord, building inspector, or other proper
officials of the governmental agencies having jurisdiction, at the
sole cost and expense of Tenant, and Tenant shall comply with all
requirements of law, ordinance and otherwise, affecting the Leased
Premises.
(b) Tenant
shall pay, when due, all claims for labor or material furnished,
for work under Sections 9.01, 9.02 and 10.02 hereof, to or for
Tenant at or for use in the Leased Premises, and shall bond such
work to prevent assertion of claims against Landlord unless
Landlord waives such requirement in writing.
(c) Tenant
agrees to be responsible for all furnishings, fixtures and
equipment located upon the Leased Premises from time to time
(including any specialty HVAC equipment for labs or lab
equipment) and shall replace
carpeting within the Leased Premises if same shall be damaged by
tearing, burning, or stains resulting from spilling anything on
such carpet, reasonable wear and tear excepted. Tenant further
agrees to use chair mats or floor protectors wherever it uses
chairs with wheels or casters on carpeted areas.
(a) This
Lease, and the tenancy hereby created, shall cease and terminate at
the end of the Rental Term hereof, or any Rental Term extension or
renewal thereof, without the necessity of any notice from either
Landlord or Tenant to terminate the same, and Tenant hereby waives
notice to vacate the Leased Premises and agrees that Landlord shall
be entitled to the benefit of all provisions of law respecting
summary recovery of possession of the Leased Premises from Tenant
holding over to the same extent as if statutory notice has been
given.
(b) Upon
termination of this Lease at any time and for any reason
whatsoever, Tenant shall surrender and deliver up the Leased
Premises, including the items constituting Tenant’s Work, to
Landlord in the same condition as when the Leased Premises was
delivered to Tenant or as altered as provided in Section 9.01,
ordinary wear and tear excepted. Upon request of Landlord, Tenant
shall promptly remove all personal property from the Leased
Premises and repair any damage caused by such removal. Obligations
under this Lease relating to events occurring or circumstances
existing prior to the date of termination shall survive the
expiration or other termination of the Rental Term of this Lease.
Liabilities accruing after the date of termination are defined in
Sections 11.01, 19.01 and 19.02.
-11-
ARTICLE XI. INSURANCE AND INDEMNITY
SECTION 11.01. LIABILITY
INSURANCE AND INDEMNITY. Tenant
shall, during the Rental Term, Preliminary Term, and any Rental
Term extension or renewal thereof, keep in full force and effect a
policy of commercial general liability insurance with respect to
the Leased Premises, with a combined single limit of not less than
Two Million Dollars ($2,000,000.00) per occurrence. The policy
shall name Landlord, property manager (i.e., Woodbury Corporation)
and any other persons, firms or corporations designated by Landlord
and Tenant as named “Additional Insured(s)”, and shall
contain a clause that the insurer shall not cancel or change the
insurance without first giving Landlord ten (10) days prior written
notice. Such insurance shall include an endorsement permitting
Landlord and property manager to recover damage suffered due to act
or omission of Tenant, notwithstanding being named as an Additional
Insured party in such policies. Such insurance may be furnished by
Tenant under any blanket policy carried by it or under a separate
policy therefor. The insurance shall be with an insurance company
approved by Landlord and a copy of the paid-up policy evidencing
such insurance or a certificate of insurer certifying to the
issuance of such policy shall be delivered to Landlord. If Tenant
fails to provide such insurance, Landlord may do so and charge the
same to Tenant.
Tenant
shall indemnify, defend and hold Landlord harmless from and against
any and all claims, actions, damages, liability and expense in
connection with loss of life, personal injury and/or damage to
property arising from or out of any occurrence in, upon or at the
Leased Premises or from the occupancy or use by Tenant of the
Leased Premises or any part thereof, or occasioned wholly or in
part by any act or omission of Tenant, its agents, contractors,
employees, servants, sublessees, concessionaires or business
invitees unless caused by the negligence of Landlord and to the
extent not covered by its casualty or liability insurance. In case
Landlord shall, without fault of its part, be made a party to any
litigation commenced by or against Tenant, then Tenant shall
protect and hold Landlord harmless and shall pay all costs,
expenses and reasonable attorneys’ fees incurred or paid by
either in defending itself or enforcing the covenants and
agreements of this Lease.
(a) Subject
to the provisions of this Section 11.02, Landlord shall secure, pay
for, and at all times during the Rental Term, and any Rental Term
extension or renewal thereof, maintain fire and casualty extended
coverage insurance providing coverage upon the Improvements in an
amount equal to the full insurable replacement value thereof (as
determined by Landlord), together with such other casualty
insurance coverage as Landlord deems advisable with regard to the
Building, including at its option, but not limited to, average
clauses, boiler insurance, elevator insurance, automatic sprinkler
damage insurance, and rental income insurance sufficient to pay to
Landlord not less than twelve (12) months Base Monthly Rent and
Additional Rent. Landlord may require appropriate endorsements as
may be required by Landlord or Landlord’s lender.
Landlord’s fire and casualty insurance on the Building need
not cover items such as Tenant’s murals, works of art,
abnormal decorative treatments or items listed in this Section
11.02 included within such policy coverage. All insurance required
hereunder shall be written by reputable, responsible companies
licensed in the State of Utah. Tenant shall have the right, at its
request at any reasonable time, to be furnished with copies of the
insurance policies then in force pursuant to this Section 11.02,
together with evidence that the premiums therefor have been
paid.
(b) Tenant
agrees to maintain, at its own expense, such fire and casualty
insurance coverage as Tenant may desire or require in respect to
Tenant’s personal property, equipment, furniture, fixtures or
inventory and Landlord shall have no obligation in respect to such
insurance or losses. All property kept or stored on the Leased
Premises by Tenant or with Tenant’s permission shall be so
done at Tenant’s sole risk and Tenant shall indemnify
Landlord against and hold it harmless from any claims arising out
of loss or damage to same.
(c) Tenant
shall not permit the Leased Premises to be used for any purpose
which would render the insurance thereon void or cause cancellation
thereof or increase the insurance risk or increase the insurance
premiums in effect just prior to the Rental Term Commencement Date
of this Lease. Tenant agrees to pay as Additional Rent the total
amount of any increase in the insurance premium of Landlord over
that in effect prior to the Rental Term Commencement Date of this
Lease resulting from Tenant’s use of the Leased Premises. If
Tenant installs any electrical or other equipment which overloads
the lines in the Leased Premises, Tenant shall at its own expense
make whatever changes are necessary to comply with the requirements
of Landlord’s insurance.
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(d) Tenant
shall be responsible for all glass breakage in and about the Leased
Premises, unless caused by Landlord, its employees or agents, and
agrees to immediately replace all glass broken or damaged during
the Rental Term, and any Rental Term extension or renewal thereof,
with glass of the same quality as that broken or damaged. Landlord
may replace, at Tenant’s expense, any broken or damaged glass
if not replaced by Tenant within five (5) days after such
damage.
SECTION 11.03. WAIVER OF
SUBROGATION. Each
party hereto does hereby release and discharge the other party
hereto and any officer, agent, employee or representative of such
party, of and from any liability whatsoever hereafter arising from
loss, damage or injury caused by fire or other casualty for which
insurance (permitting waiver of liability and containing a waiver
of subrogation) is carried by the injured party at the time of such
loss, damage or injury to the extent of any recovery by the injured
party under such insurance.
(a) Subject
to the terms and conditions set forth in Section 11.03, Tenant
shall indemnify Landlord and save it harmless from and against any
and all claims, actions, damages, liability and expense in
connection with loss of life, personal injury and/or damage to
property arising from or out of any occurrence in, upon or at the
Leased Premises or from the occupancy or use by Tenant of the
Leased Premises or any part thereof, or occasioned wholly or in
part by any act or omission of Tenant, its agents, contractors,
employees, servants, sublessees, concessionaires or business
invitees to extent not covered by insurance required by Article XI.
In case Landlord is, without fault on its part, made a party to any
litigation commenced by or against Tenant, then Tenant shall
protect and hold Landlord harmless and shall pay all costs,
expenses and reasonable attorneys’ fees incurred or paid by
Landlord in defending itself or enforcing the covenants and
agreements of this Lease.
(b) Subject
to the terms and conditions set forth in Section 11.03, to the
extent not covered by the insurance required to be maintained by
Tenant, or that would not have been covered by insurance had Tenant
maintained such insurance, Landlord agrees to indemnify and save
harmless Tenant in regard to third parties for damages occurring on
the Common Area proximately caused by the wrongful acts or
negligence of Landlord, its contractors, agents or employees in
scope of their employment, including costs of defense and
reasonable attorneys’ fees incurred in such defense. In case
Tenant is, without fault on its part, made a party to litigation
against Landlord as a result of such acts or negligence which
Tenant’s insurer is not required to defend, then Landlord
shall indemnify Tenant against costs of such defense including
reasonable attorneys’ fees.
SECTION 12.01. OBLIGATION OF
LANDLORD. Unless
otherwise agreed in writing by the parties, during the Rental Term
of this Lease Landlord shall cause to be furnished to the Leased
Premises during Standard Operating Hours as set forth in Section
1.01(Q), except Holidays, the following utilities and
services:
(a) Electricity,
water, gas and sewer service.
(b) Telephone
connection, but not including telephone stations and equipment (it
being expressly understood and agreed that Tenant shall be
responsible for the ordering and installation of telephone lines
and equipment which pertain to the Leased Premises).
(c) Heat
and air-conditioning to such extent and to such levels as, in
Landlord’s judgment, is reasonably required for the
comfortable use and occupancy of the Leased Premises subject
however to any limitations imposed by University Research Park or
any government agency. The parties agree and understand that the
above heat and air-conditioning shall be provided during Standard
Operating Hours.
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(d) Snow
removal and parking lot sweeping services for the parking areas
owned by Landlord.
(e) Elevator
service.
SECTION 12.02. OBLIGATIONS OF
TENANT. Tenant
shall arrange for and shall pay the entire cost and expense of all
telephone and data installation, equipment and monthly use charges,
electric light bulbs (but not fluorescent bulbs used in fixtures
originally installed in the Leased Premises) and all other
materials and services not expressly required to be provided and
paid for pursuant to the provisions of Section 12.01. Tenant
covenants to use good faith efforts to reasonably conserve
utilities by turning off lights and equipment when not in use and
taking such other reasonable actions in accordance with sound
standards for energy conservation. Landlord reserves the right to
separately meter or otherwise monitor any utility usage and to
separately charge Tenant for its own utilities, in which case an
equitable adjustment shall be made to Base Monthly Rent. Additional
limitations of Tenant are as follows:
(a) Tenant
shall not, without the written consent of Landlord, which consent
shall not be unreasonably withheld, use any apparatus or device on
the Leased Premises using current in excess of 208 volts) which
shall in any way or to any extent increase the amount of
electricity or water usually furnished or supplied for use on the
Leased Premises for the Permitted Use designated in Section
1.01(F), nor connect with electrical current, except through
existing electrical outlets in the Leased Premises, or water pipes,
any apparatus or device, for the purposes of using electric current
or water.
(b) If
Tenant shall require water or electric current in excess of that
usually furnished or supplied for use of the Leased Premises, or
for purposes other than those designated in Section 1.01(F), Tenant
shall first procure the written consent of Landlord for the use
thereof, which consent Landlord may refuse and/or Landlord may
cause a water meter or electric current meter to be installed in
the Leased Premises, so as to measure the amount of water and/or
electric current consumed for any such use. The cost of such meters
and of installation maintenance, and repair thereof shall be paid
for by Tenant and Tenant agrees to pay Landlord promptly upon
demand by Landlord for all such water and electric current consumed
as shown by such meters, at the rates charged for such service by
the city in which the Building is located or the local public
utility, as the case may be, furnishing the same, plus any
additional expense incurred in keeping account of the water and
electric current so consumed; and
(c) If
and where heat generating devices are used in the Leased Premises
which affect the temperature otherwise maintained by the air
conditioning system, Landlord reserves the right to install
additional or supplementary air conditioning units for the Leased
Premises, and the entire cost of installing, operating, maintaining
and repairing the same shall be paid by Tenant to Landlord promptly
after demand by Landlord.
SECTION 12.04. LIMITATIONS ON
LANDLORD’S LIABILITY. Landlord
shall not be liable for and Tenant shall not be entitled to
terminate this Lease or to effectuate any abatement or reduction of
Base Monthly Rent by reason of Landlord’s failure to provide
or furnish any of the foregoing utilities or services if such
failure was reasonably beyond the control of Landlord. In no event
shall Landlord be liable for loss or injury to persons or property,
however, arising or occurring in connection with or attributable to
any failure to furnish such utilities or services even if within
the control of Landlord.
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ARTICLE XIII. ESTOPPEL AND OFF-SET STATEMENT, ATTORNMENT AND
SUBORDINATION
SECTION 13.01. ESTOPPEL AND
OFF-SET STATEMENT. Tenant
agrees, within ten (10) days after request therefor by Landlord, to
execute in recordable form and deliver to Landlord a statement in
writing, certifying:
(a) that
this Lease is unmodified and in full force and effect, or if there
have been modifications, stating the modifications,
(b) the
Rental Term Commencement Date of this Lease,
(c) that
rent is paid currently without any off-set or defense
thereto,
(d) the
amount of rent, if any, paid in advance, and
(e) that
there are no uncured defaults by Landlord or stating those claimed
by Tenant.
Tenant’s
failure to execute and deliver such statement within the ten (10)
day period shall be an event of default which is subject to the
remedies set forth in Section 13.05 herein and further deemed to
make conclusive and binding upon Tenant the statements contained
therein as true and correct without exception. Unless Tenant shall
have notified Landlord in writing within the ten (10) day period of
any qualifications Tenant may have to the aforesaid statements,
then anyone participating with Landlord in the sale or mortgage
shall have the right to rely on the accuracy of such
statement.
SECTION 13.02.
ATTORNMENT. In the
event any proceedings are brought for the foreclosure of, or in the
event of exercise of the power of sale under any mortgage or deed
of trust made by Landlord covering the Leased Premises, or in the
event Landlord conveys in a sale all of its rights and duties in
and to this Lease and the Leased Premises, Tenant shall attorn to
the purchaser upon any such foreclosure or sale and recognize such
purchaser as Landlord under this Lease.
SECTION 13.03.
SUBORDINATION. Tenant
agrees that this Lease shall, at the request of Landlord, be
subordinate to any first mortgages or deeds of trust that may
hereafter be placed upon the Leased Premises and to any and all
advances to be made thereunder, and to the interest thereon, and
any Rental Term renewals, replacements and extensions thereof,
provided the mortgagees or trustees named in such mortgages or
deeds of trust shall agree to recognize this Lease in the event of
foreclosure, if Tenant is not in default.
SECTION 13.04. MORTGAGEE
SUBORDINATION. Tenant
hereby agrees that this Lease shall, if at any time requested by
Landlord or any lender in respect to Landlord’s financing of
the Building or the Property in which the Leased Premises is
located or any portion hereof, be made superior to any mortgage or
deed of trust that may have preceded this Lease.
SECTION 13.05. REMEDIES.
Failure
of Tenant to execute and deliver any of the above instruments
within fifteen (15) days after written request to do so by Landlord
shall constitute a breach of this Lease entitling Landlord, at its
option, to cancel this Lease and terminate Tenant’s interest
therein.
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ARTICLE XIV. ASSIGNING, MORTGAGING, SUBLETTING,
SECTION 14.01. CONSENT
REQUIRED. Tenant
shall not assign this Lease, in whole or in part, nor sublet all or
any part of the Leased Premises, or any part thereof, nor mortgage
nor encumber this Lease or any part of the Leased Premises, nor
enter into licenses or concession agreements or in other manner
permit the occupation of or sharing of possession of any part of
the Leased Premises, or any assignment of this Lease or any estate
or interest therein (all of the foregoing being hereafter referred
to as an “Assignment”) without first
obtaining the prior written consent of Landlord, which consent
shall not be unreasonably withheld. The consent of Landlord shall
not relieve Tenant or any Guarantor of this Lease from continuing
liability for all obligations under this Lease. Any Assignment by
operation of law or if Tenant is a corporation, unincorporated
association or partnership, the transfer, assignment or
hypothecation of any stock or interest in such corporation,
association or partnership in the aggregate in excess of fifty
percent (50%) shall be deemed an Assignment within the meaning of
this Section 14.01. However, any Assignment to a parent
corporation, or to a successor corporation acquiring substantially
all the assets of Tenant, and intending to operate Tenant’s
business under the same trade name, shall be deemed reasonable. An
Assignment consummated in violation of the provisions of this
Article XIV shall be null and void and of no force or
effect.
SECTION 14.02. OPTION TO
TERMINATE. In the
event Tenant desires to make any such Assignment, Tenant shall
serve written notice upon Landlord; and Landlord shall have sixty
(60) days after written notice to elect whether to approve such
Assignment, reject such Assignment or to terminate this Lease.
Should Landlord elect to terminate, Landlord shall so notify Tenant
in writing and Tenant shall have fifteen (15) days either to
rescind the request, or this Lease shall be deemed terminated
effective at the end of the calendar month when Landlord so elects
to terminate. Tenant’s notice shall be accompanied by a copy
of a bona fide offer from a potential “Assignee” specifying the terms of
any offer from such Assignee. If Landlord so elects to terminate,
Landlord shall pay to Tenant a sum not exceeding the lower of any
bona fide offer from a potential Assignee, or remaining book value
of Tenant’s improvements to the real estate.
(a) Should
consent be granted, such consent shall be subject to Tenant causing
the Assignee to execute an agreement directly with Landlord
undertaking to be bound by all the terms, covenants and conditions
contained in this Lease as though Assignee had originally executed
this Lease as Tenant.
(b) Tenant
shall pay to Landlord any and all consideration received by Tenant
for such Assignment to the extent such consideration exceeds the
remaining book value of Tenant’s leasehold improvements paid
for by Tenant, whether paid in lump sum or in rent exceeding Base
Monthly Rent required under this Lease.
(c) At
no time when Tenant is in default in the performance of any
covenant of this Lease or in payment of rent or any other matured
sums payable hereunder shall any Assignment be approved or
permitted, nor shall the notice provision of Section 14.02 limit
the right to declare default and pursue other remedies provided for
in this Lease or under the laws of the State of Utah.
SECTION 14.04. STANDARDS OF
REASONABLENESS IN WITHHOLDING CONSENT. In
determining whether to grant consent, Landlord may consider any
statutory or common law tests including, but not limited to, the
following tests, each of which if applicable in Landlord’s
sole business judgment, shall be deemed a reasonable ground for
rejection:
(a)
Any Assignment
disapproved by Landlord’s lender;
(b)
Any Assignment
resulting in a change of Permitted Use from that specified in
Section 1.01(F);
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(c) Any
Assignment to an Assignee who lacks good reputation, successful
business experience in Tenant’s type of business and
substantial means and financial capacity adequate to conduct such a
business;
(d) Any
Assignment which would breach any covenant of Landlord respecting
use or exclusivity in any other lease, financing agreement or other
agreement relating to the Building.
However, any
Assignment to a parent corporation, or to a successor corporation
acquiring substantially all the assets of Tenant, and intending to
operate Tenant’s business under the same trade name, shall be
deemed reasonable.
Consent
by Landlord to one (1) or more Assignments shall not constitute a
waiver or consent to any subsequent Assignment nor exhaust
Landlord’s rights under this Article XIV; nor shall
acceptance of Base Monthly Rent, Additional Rent or any other
payment from Assignee be deemed a waiver or consent by Landlord or
an acceptance of such Assignment. Any Assignment without such
Landlord’s consent shall be void and of no force and effect
and shall confer no estate or benefit on anyone, nor shall Landlord
be required to terminate this Lease in order to invalidate such
Assignment.
SECTION 14.05. DOCUMENTATION OF
ASSIGNMENT. Whether
the documentation of any such Assignment shall be prepared by
Tenant or by Landlord or its attorneys, all costs and reasonable
attorneys’ fees related to considering such Assignment shall
be paid by Tenant, which fees payable to Landlord shall in no case
be greater than One Thousand Dollars ($1,000.00) per Assignment
considered, payable by Tenant upon demand as Additional
Rent.
SECTION 14.06. CONTINUING
LIABILITY OF TENANT AND GUARANTOR. Neither
the consent of Landlord nor any otherwise permitted Assignment or
subletting shall relieve Tenant or any Guarantor from continuing
liability under this Lease, including liability for Base Monthly
Rent as provided in Section 1.01(L) and 1.01(M) and any Additional
Rent for which Tenant and any Guarantor shall each remain
obligated.
SECTION 15.01. WASTE OR
NUISANCE. Tenant
shall not commit or suffer to be committed any waste upon the
Leased Premises, or any nuisance or other act or thing which may
disturb the quiet enjoyment of any other tenant in the Building in
which the Leased Premises may be located, or elsewhere within the
Building.
SECTION 16.01. NOTICES.
Except
as provided in Section 19.01, any notice, demand, request or other
instrument which may be or is required to be given under this Lease
shall be personally delivered or mailed by United States certified
mail, return receipt requested, postage prepaid, or via a
nationally recognized overnight courier or expedited mail service,
and shall be addressed (a) if to Landlord at the address set forth
in Section 1.01(C) or at such other address as Landlord may
designate by written notice and (b) if to Tenant at the address set
forth in Section 1.01(E) or at such other address as Tenant shall
designate by written notice. Notice shall be effective on delivery
unless delivery is refused or cannot be made, in which event notice
shall be effective on mailing.
Notwithstanding the
foregoing, any notices Landlord is required or authorized to
deliver to Tenant in order to advise Tenant of alleged violations
of Tenant’s covenants relating to advertising, signs, parking
of automobiles, hours of operation, failure of Tenant to properly
maintain or repair the Leased Premises, all as provided in, but not
limited to, Articles VII, IX and X and Sections 8.01, 15.01 and
16.02, must be in writing but may be served upon Tenant by
delivering a copy of such notice to Tenant as above specified and
delivering a copy of such notice to one (1) of Tenant’s
managing employees at the Leased Premises
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ARTICLE XVII. DESTRUCTION OF THE LEASED PREMISES
(a) If
the Leased Premises is partially or totally destroyed by fire or
other casualty insurable under standard fire insurance policies
with extended coverage endorsement so as to become partially or
totally untenantable, the same shall be repaired or rebuilt as
speedily as practical under the circumstances at the expense of
Landlord, unless Landlord elects not to repair or rebuild as
provided in subsection (b) of this Section 17.01. During the period
required for restoration, a just and proportionate part of Base
Monthly Rent, Additional Rent and other charges payable by Tenant
hereunder shall be abated until the Leased Premises is repaired or
rebuilt.
(b) If
the Leased Premises is (i) rendered totally untenantable by reason
of an occurrence described in subsection (a) of this Section 17.01,
or (ii) damaged or destroyed as a result of a risk which is not
insured under Landlord’s fire insurance policies, or (iii) at
least twenty percent (20%) damaged or destroyed during the last two
(2) years of the Rental Term, or (iv) if the Building is damaged in
whole or in part (whether or not the Leased Premises is damaged),
to such an extent that Tenant cannot practically use the Leased
Premises for its intended purpose, then and in any such events
Landlord may at its option terminate this Lease by notice in
writing to Tenant within sixty (60) days after the date of such
occurrence. Unless Landlord gives such notice, this Lease shall
remain in full force and effect and Landlord shall repair such
damage at its expense as expeditiously as possible under the
circumstances.
(c) If
Landlord should elect or be obligated, pursuant to subsection (a)
of this Section 17.01, to repair or rebuild because of any damage
or destruction, Landlord’s obligation shall be limited to the
original Building and any other work or improvements which may have
been originally performed or installed at Landlord’s expense.
If the cost of performing Landlord’s obligation exceeds the
actual proceeds of insurance paid or payable to Landlord on account
of such casualty, Landlord may terminate this Lease unless Tenant,
within fifteen (15) days after demand therefor, deposits with
Landlord a sum of money sufficient to pay the difference between
the cost of repair and the proceeds of the insurance available for
such purpose. Tenant shall replace all work and improvements not
originally installed or performed by Landlord at its
expense.
(d) Except
as stated in this Article XVII, Landlord shall not be liable for
any loss or damage sustained by Tenant by reason of casualties
mentioned hereinabove or any other accidental
casualty.
SECTION 18.01.
CONDEMNATION. As used
in this Section 18.01, the term “Condemnation Proceeding(s)” means
any action or proceeding in which any interest in the Leased
Premises or the Building is taken for any public or quasi-public
purpose by any lawful authority through exercise of the power of
eminent domain or right of condemnation or by purchase or otherwise
in lieu thereof. If the whole of the Leased Premises is taken
through Condemnation Proceedings, this Lease shall automatically
terminate as of the date possession is taken by the condemning
authority. If in excess of twenty-five percent (25%) of the Leased
Premises is taken, either party hereto shall have the option to
terminate this Lease by giving the other written notice of such
election at any time within thirty (30) days after the date of
taking. If less than twenty-five percent (25%) of the space is
taken and Landlord determines, in Landlord’s sole discretion,
that a reasonable amount of reconstruction thereof shall not result
in the Leased Premises or the Building becoming a practical
improvement reasonably suitable for use for the purpose for which
it is designed, then Landlord may elect to terminate this Lease by
giving thirty (30) days written notice as provided hereinabove. In
all other cases, or if neither party exercises its option to
terminate, this Lease shall remain in effect and the rent payable
hereunder from and after the date of taking shall be
proportionately reduced in proportion to the ratio of: (i) the area
contained in the Leased Premises which is capable of occupancy
after the taking; to (ii) the total area contained in the Leased
Premises which was capable of occupancy prior to the taking. In the
event of any termination or rental reduction provided for in this
Section 18.01, there shall be a proration of the rent payable under
this Lease and Landlord shall refund any excess theretofore paid by
Tenant. Whether or not this Lease is terminated as a consequence of
Condemnation Proceedings, all damages or compensation awarded for a
partial or total taking, including any sums compensating Tenant for
diminution in the value of or deprivation of its leasehold estate,
shall be the sole and exclusive property of Landlord, except that
Tenant shall be entitled to any awards intended to compensate
Tenant for expenses of locating and moving Tenant’s
operations to a new space.
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ARTICLE XIX. DEFAULT OF TENANT
SECTION 19.01. DEFAULT - RIGHT
TO RE-ENTER. In the
event of any failure of Tenant to pay any Base Monthly Rent and
Additional Rent due hereunder, within ten (10) days after written
notice that the same is past due, shall have been mailed to Tenant
by registered mail to Tenant’s address as listed in Section
1.01(E) or to such address as Tenant has specified in writing, or
any failure by Tenant to perform any other of the terms, conditions
or covenants required of Tenant by this Lease within thirty (30)
days after written notice of such default shall have been mailed to
Tenant by registered mail to Tenant’s address as listed in
Section 1.01(E) or to such address as Tenant has specified in
writing, or if Tenant shall abandon the Leased Premises, or permit
this Lease to be taken under any writ of execution, then Landlord,
besides other rights or remedies it may have, shall have the right
to declare this Lease terminated and the Rental Term ended and
shall have the immediate right of re-entry and may remove all
persons and property from the Leased Premises. Such property may be
removed and stored in a public warehouse or elsewhere at the cost
of and for the account of Tenant, without evidence of notice or
resort to legal process and without being deemed guilty of
trespass, or becoming liable for any loss or damage which may be
occasioned thereby. Tenant hereby waives all compensation for the
forfeiture of the Rental Term or its loss of possession of the
Leased Premises in the event of the forfeiture of this Lease as
provided for above. Any notice that Landlord may desire or is
required to give Tenant with reference to the foregoing provision
may, in lieu of mailing, at the option of Landlord, be
conspicuously posted for ten (10) consecutive days at the main
entrance to or in front of the Leased Premises, and such notice
shall constitute a good, sufficient, and lawful notice for the
purpose of declaring a forfeiture of this Lease and for terminating
all of the rights of Tenant hereunder.
SECTION 19.02. DEFAULT - RIGHT
TO RE-LET. Should
Landlord elect to re-enter, as provided herein, or should it take
possession pursuant to legal proceedings or pursuant to any notice
provided for by law, it may either terminate this Lease or it may
from time to time, without terminating this Lease, make such
alterations and repairs as may be necessary in order to re-let the
Leased Premises, and may re-let the Leased Premises, or any part
thereof, for such term or terms (which may be for a term extending
beyond the Rental Term of this Lease) and at such rent or rental
income and upon such other terms and conditions as Landlord in its
sole discretion may deem advisable. Upon each re-letting, all
rental income received by Landlord from such re-letting shall be
applied, first, to the payment of any indebtedness other than rents
due hereunder from Tenant to Landlord; second, to the payment of
any costs and expenses of such re-letting, including brokerage fees
and attorneys’ fees and costs of such alterations and
repairs; third, to the payment of rents due and unpaid hereunder;
and fourth, the residue, if any, shall be held by Landlord and
applied in payment of future rent as the same may become due and
payable hereunder. If such rental income received from such
re-letting during any month is less than those payable during that
month by Tenant hereunder, Tenant shall pay any such deficiency
immediately to Landlord. Such deficiency shall be calculated and
paid monthly. No such re-entry or taking possession of the Leased
Premises by Landlord shall be construed as an election on its part
to terminate this Lease unless a written notice of such intention
is given to Tenant or unless the termination thereof is decreed by
a court of competent jurisdiction. Notwithstanding any such
re-letting without termination, Landlord may at any time thereafter
elect to terminate this Lease for such previous breach. Should
Landlord at any time terminate this Lease for any breach, in
addition to any other remedies it may have, it may recover from
Tenant all damages it may incur by reason of such breach, including
the cost of recovering the Leased Premises, reasonable
attorneys’ fees, and including the worth at the time of such
termination of the excess, if any, of the amount of rents and other
charges equivalent to rents reserved in this Lease for the
remainder of the stated Rental Term over the then reasonable rental
value of the Leased Premises for the remainder of the Rental Term,
all of which amounts shall be immediately due and payable from
Tenant to Landlord.
SECTION 19.03. LEGAL
EXPENSES. In case
of default by either party in the performance and obligations under
this Lease, the non-prevailing party shall pay all costs incurred
in enforcing this Lease, or any right arising out of the breach
thereof, whether by suit or otherwise, including reasonable
attorneys’ fees.
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ARTICLE XX. BANKRUPTCY, INSOLVENCY OR RECEIVERSHIP
SECTION 20.01. RIGHT OF
TERMINATION. It is
intended that neither this Lease, nor any interest therein nor any
estate thereby created, shall pass to any trustee or receiver or
assignee for the benefit of creditors or otherwise by operation of
law. The parties acknowledge that the Permitted Use covenant
described in Section 1.01(F) and in Section 7.01 was a motivating
consideration in Landlord’s approval of this Lease.
Accordingly, should any of the following events occur, Landlord may
terminate this Lease and any interest of Tenant therein, effective
upon commencement of the event:
(a) If
proceedings are instituted whereby all, or substantially all, of
Tenant’s assets are placed in the hands of a receiver,
conservator, trustee or assignee for the benefit of Tenant’s
creditors, and such proceedings are not dismissed within thirty
(30) days;
(b) If
any creditor of Tenant institutes judicial or administrative
process to execute on, attach or otherwise seize any of
Tenant’s merchandise, fixtures or personal property located
on the Leased Premises and Tenant fails to discharge, set aside,
exonerate by posting a bond, or otherwise obtain a release of such
property within thirty (30) days;
(c) If
Tenant becomes a debtor in any case filed under the Bankruptcy Code
(as defined in Section 20.02) or similar law providing relief to
bankrupt or insolvent debtors;
(d) If
any of the foregoing events occurs with respect to any Guarantor of
this Lease.
In
addition, within ten (10) days after Landlord’s request
therefor, Tenant or Guarantor of this Lease shall provide Landlord
and Landlord’s mortgagee or proposed mortgagee, as Landlord
shall specify, such financial, legal and business information
concerning any of the events described in this Section 20.01 as
Landlord shall request.
SECTION 20.02.
BANKRUPTCY. If
Landlord shall not be permitted to terminate this Lease as
hereinabove provided because of the provisions of the United States
Code relating to Bankruptcy (“Bankruptcy Code”), then Tenant as
a debtor-in-possession or any trustee for Tenant agrees promptly,
within no more than fifteen (15) days upon request by Landlord to
the “Bankruptcy
Court”, to assume or reject this Lease and Tenant on
behalf of itself, and any trustee agrees not to seek or request any
extension or adjournment of any application to assume or reject
this Lease by Landlord with such Bankruptcy Court. In such event,
Tenant or any trustee for Tenant may only assume this Lease if (a)
it cures or provides adequate assurance that the trustees shall
promptly cure any default hereunder, (b) compensates or provides
adequate assurance that Tenant shall promptly compensate Landlord
for any actual pecuniary loss to Landlord resulting from
Tenant’s defaults, and (c) provides adequate assurance of
performance during the fully stated Rental Term hereof of all the
terms, covenants, and provisions of this Lease to be performed by
Tenant. In no event after the assumption of this Lease shall any
then-existing default remain uncured for a period in excess of the
earlier of ten (10) days or the time period set forth herein.
Adequate assurance of performance of this Lease, as set forth
hereinabove, shall include, without limitation, adequate assurance
(1) of the source of rent reserved hereunder, (2) that the
assumption of this Lease shall not breach any provision hereunder,
and (3) that business operated shall comply with the Permitted Use
covenants set forth in Sections 1.01(F) and 7.01. In the event of a
filing of a petition under the Bankruptcy Code, Landlord shall have
no obligation to provide Tenant with any services or utilities as
herein required, unless Tenant shall have paid and be current in
all payments of utilities or other charges therefor. Tenant shall
pay all of Landlord’s costs incurred as a result of
Tenant’s insolvency and/or bankruptcy proceedings including,
but not limited to, reasonable attorneys’ fees incurred as a
result of Landlord’s participation in and/or monitoring of
Tenant’s insolvency proceeding.
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ARTICLE XXI. LANDLORD ACCESS
SECTION 21.01. LANDLORD
ACCESS. Landlord
or Landlord’s agent shall have the right to enter the Leased
Premises at all reasonable times to examine the same, or to show
the Leased Premises to prospective purchasers or lessees of the
Building, or to make all reasonable repairs, alterations,
improvements or additions as Landlord may deem necessary or
desirable, and Landlord shall be allowed to take all material into
and upon the Leased Premises that may be required therefor without
the same constituting an eviction of Tenant in whole or in part,
and the rents reserved shall in no wise xxxxx while such repairs,
alterations, improvements, or additions are being made, by reason
of loss or interruption of business of Tenant, or otherwise. During
the ninety (90) days prior to the expiration of the Rental Term, or
any Rental Term extension or renewal thereof, Landlord may exhibit
the Leased Premises to prospective tenants and place upon the
Leased Premises the usual notices “To Let” or
“For Rent” which notices Tenant shall permit to remain
thereon without molestation.
SECTION 22.01. TAXES ON
LEASEHOLD. Tenant
shall be responsible for and shall pay before delinquency all
municipal, county and state taxes assessed during the Rental Term
of this Lease against any leasehold interest, improvements, trade
fixtures or personal property of any kind, owned by or placed in,
upon or about the Leased Premises by Tenant, and taxes, levies or
fees assessed on the basis of Tenant’s occupancy thereof,
including, but not limited to, taxes measured by rents due from
Tenant hereunder.
SECTION 22.02. LOSS AND
DAMAGE. Landlord
shall not be responsible or liable to Tenant for any loss or damage
that may be occasioned by or through the acts or omissions of
persons occupying adjoining spaces or any part of the spaces
adjacent to or connected with the Leased Premises hereby or any
part of the Building of which the Leased Premises is a part, or for
any loss or damage resulting to Tenant or its property from
bursting, stoppage or leaking of water, gas, sewer or steam pipes
or for any damage or loss of property within the Leased Premises
from any cause whatsoever.
SECTION 22.03. NOTICE BY
TENANT. Tenant
shall give immediate telephone or electronic mail notice to
Landlord in case of fire, casualty or accidents in the Leased
Premises or in the Building of which the Leased Premises is a part
or of defects therein or in any fixtures or equipment, and Tenant
shall promptly thereafter confirm such notice in
writing.
SECTION 22.04. LANDLORD’S
LIEN. Tenant
hereby grants to Landlord a lien upon the improvements, trade
fixtures and furnishings of Tenant to secure full and faithful
performance of all of the terms of this Lease.
SECTION 22.05. LANDLORD’S
SUBORDINATION. Provided
that Tenant is not in default hereunder, Landlord agrees to
subordinate its lien on Tenant’s personal property to that of
any bona fide third party lender providing financing which directly
benefits Tenant=s operations in the Leased
Premises. However, Landlord shall refuse and shall otherwise not be
required to subordinate its lien or priority as to Tenant's
equipment, trade fixtures or personal property, and Landlord shall
be entitled to refuse subordination if loans are not directly
related to the Leased Premises.
SECTION 23.01. HOLDING
OVER. Any
holding over after the expiration of the Rental Term, or any Rental
Term extension thereof, without Landlord’s approval, shall be
construed to be a tenancy-at-will and all provisions of this Lease
shall be and remain in effect except that Base Monthly Rent shall
be double the amount of Base Monthly Rent (including any
adjustments as provided herein) payable for the last full calendar
month of the Rental Term, including any Rental Term extension or
renewal thereof, or tenancy on a month-to-month basis.
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SECTION
23.02. SUCCESSORS. All
rights and liabilities herein given to, or imposed upon, the
respective parties hereto shall extend to and bind the several
respective heirs, executors, administrators, successors and assigns
of such parties; and if there shall be more than one (1) tenant,
they shall all be bound jointly and severally by the terms,
covenants and agreements herein. No rights, however, shall inure to
the benefit of any assignee of Tenant unless the assignment to such
assignee has been approved by Landlord in writing.
SECTION 24.01. RULES AND
REGULATIONS. Tenant
agrees to comply with and observe all rules and regulations as
established by Landlord and which are now, or which may be
hereafter, prescribed by Landlord from time to time, provided, in
Landlord’s sole discretion, and posted in or about the Leased
Premises or otherwise brought to the notice of Tenant, both with
regard to the Building as a whole and to the Leased Premises,
including Common Areas and Common Facilities. Tenant’s
failure to keep and observe such rules and regulations shall
constitute a breach of the terms of this Lease in the manner as if
such rules and regulations were contained herein as
covenants.
SECTION 25.01. QUIET
ENJOYMENT. Upon
payment by Tenant of the rents herein provided, and upon the
observance and performance of all the covenants, terms and
conditions on Tenant’s part to be observed and performed,
Tenant shall peaceably and quietly hold and enjoy the Leased
Premises for the Rental Term, or any Rental Term extensions or
renewals thereof, without hindrance or interruption by Landlord or
any other person or persons lawfully or equitably claiming by,
through or under Landlord, subject, nevertheless, to the terms and
conditions of this Lease and actions resulting from future eminent
domain proceedings and casualty losses.
SECTION 26.01. SECURITY
DEPOSIT. Landlord
herewith acknowledges receipt of the Security Deposit in the amount
set forth in Section 1.01(S) which is to be retained as security
for the faithful performance of all the covenants, conditions and
agreements of this Lease, but in no event shall Landlord be obliged
to apply the same upon rents or other charges in arrears or upon
damages for Tenant’s failure to perform such covenants,
conditions and agreements; Landlord may so apply the Security
Deposit, at its option; and Landlord’s right to the
possession of the Leased Premises for non-payment of rents or for
other reasons shall not in any event be affected by reason of the
fact that Landlord holds the Security Deposit. Such sum, if not
applied toward the payment of rents in arrears or toward the
payment of damages suffered by Landlord by reason of Tenant’s
breach of the covenants, conditions and agreements of this Lease,
is to be returned to Tenant without interest when this Lease is
terminated or expired, according to these terms, and in no event is
the Security Deposit to be returned until Tenant has vacated the
Leased Premises and delivered possession to Landlord.
In the
event that Landlord repossesses the Leased Premises because of
Tenant’s default or because of Tenant’s failure to
carry out the covenants, conditions and agreements of this Lease,
Landlord may apply the Security Deposit toward damages as may be
suffered or shall accrue thereafter by reason of Tenant’s
default or breach. In the event of bankruptcy or other
debtor-creditor proceedings against Tenant as set forth in Article
XX, the Security Deposit shall be deemed to be applied first to the
payment of Base Monthly Rent, Additional Rent and other charges due
to Landlord for the earliest possible periods prior to the filing
of such proceedings. Landlord shall not be obliged to keep the
Security Deposit as a separate fund, but may mix the same with its
own funds.
SECTION 26.02. TRANSFER OF
LANDLORD’S INTEREST IN THE SECURITY DEPOSIT.
Landlord
may deliver the Security Deposit to the purchaser or assignee of
Landlord’s interest in the Leased Premises and thereupon
Landlord shall be discharged from any further liability with
respect to the Security Deposit. This Section 26.02 shall also
apply to any subsequent transfers of Landlord’s interest in
the Leased Premises.
-22-
ARTICLE XXVII. MISCELLANEOUS PROVISIONS
SECTION 27.01. WAIVER.
One (1)
or more waivers of any covenant or condition by Landlord shall not
be construed as a waiver of a subsequent breach of the same
covenant or condition and the consent or approval to or of any
subsequent or similar act by Tenant. The subsequent acceptance of
rents hereunder by Landlord shall not be deemed to be a waiver of
any preceding breach by Tenant of any term, covenant or condition
of this Lease, other than the failure of Tenant to pay the
particular rents so accepted, regardless of Landlord’s
knowledge of such preceding breach at the time of acceptance of
such rents. No breach of a covenant or condition of this Lease
shall be deemed to have been waived by Landlord, unless such waiver
is in writing signed by Landlord.
SECTION 27.02. ENTIRE LEASE
AGREEMENT. This
Lease and the exhibits, if any, constitutes the entire Lease and
understanding between the parties hereto and supersedes all prior
discussions, understandings and agreements. This Lease may not be
altered or amended except by a subsequent written agreement
executed by all parties.
SECTION 27.03. INTERPRETATION,
USE OF PRONOUNS. Nothing
contained herein shall be deemed or construed by the parties
hereto, nor by any third party, as creating the relationship of
principal and agent or of partnership or of joint venture between
the parties hereto, it being understood and agreed that neither the
method of computation of rent, nor any other provision contained
herein, nor any acts of the parties herein, shall be deemed to
create any relationship between the parties hereto other than the
relationship of Landlord and Tenant. Whenever herein the singular
number is used, the same shall include the plural, and the
masculine gender shall include the feminine and neuter
genders.
The
laws of the state where the Building is situated shall govern the
validity, performance and enforcement of this Lease. Although the
printed provisions of this Lease were drawn by Landlord, this Lease
shall not be construed either for or against Landlord or Tenant,
but this Lease shall be interpreted in accordance with the general
tenor of the language in an effort to reach an equitable
result.
The
parties agree that any deletion of language from this Lease prior
to mutual execution by Landlord and Tenant shall not be construed
to have any particular meaning or to raise any presumption or
implication, including without limitation, any implication that the
parties intended thereby to state the converse or opposite of the
deleted language. It is the intention of the parties hereto that,
if any provision of this Lease is capable of two (2) constructions,
one (1) of which would render the provision void and one (1) of
which would render the provision valid, then the provision shall
have the meaning which renders it valid.
SECTION 27.04. FORCE
MAJEURE. In the
event that either party hereto shall be delayed or hindered in or
prevented from the performance of any act required hereunder by
reason of strikes, lockouts, labor troubles, inability to procure
materials, failure of power, restrictive governmental laws or
regulations, riots, insurrection, war or other reason of a like
nature not the fault of the party delayed in performing work or
doing acts required under the terms of this Lease, then performance
of such act shall be excused for the period of the delay and the
period for the performance of any such act shall be extended for a
period equivalent to the period of such delay. The provisions of
this Section 27.04 shall not operate to excuse Tenant from prompt
payment of Base Monthly Rent, Additional Rent or any other payments
required by the terms of this Lease.
SECTION 27.05. LOSS AND
DAMAGE. Landlord
shall not be responsible or liable to Tenant for any loss or damage
that may be occasioned by or through the acts or omissions of
persons occupying all or any part of the Leased Premises adjacent
to or connected with the Leased Premises or any part of the
Building of which the Leased Premises is a part, or for any loss or
damage resulting to Tenant or its property from bursting, stoppage
or leaking of water, gas sewer or steam pipes or for any damage or
loss of property within the Leased Premises from any cause
whatsoever.
SECTION 27.06. CAPTIONS AND
SECTION NUMBERS. The
captions, section numbers, article numbers and index appearing in
this Lease are inserted only as a matter of convenience and in no
way define, limit, construe, or describe the scope or intent of
such sections or articles of this Lease nor in any way affect this
Lease.
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SECTION
27.07. BROKER’S COMMISSION. Each of
the parties represents and warrants that there are no claims for
brokerage commissions or finder’s fees in connection with the
execution of this Lease, except as listed below, and each of the
parties agrees to indemnify the other against, and hold it harmless
from, all liabilities arising from any such claim (including,
without limitation, the cost of reasonable attorneys’ fees in
connection therewith) except as follows: Landlord has commission
obligation to Woodbury Corporation. This provision in no way
creates any third party beneficiary rights in any party, nor does
it create any liability on the part of Tenant to pay any or all of
the commission due Tenant’s broker or Landlord’s
broker. Further, Landlord shall hold Tenant harmless from and
against any claim by Tenant’s broker stemming from
Landlord’s broker’s failure to pay Tenant’s
broker its commission split.
SECTION 27.08.
RECORDING. Tenant
shall not record this Lease without the written consent of
Landlord; however, upon the request of either party hereto, the
other party shall join in the execution of a memorandum or
so-called “short form” of this Lease for the purposes
of recordation. Such memorandum or short form of this Lease shall
describe the parties, the Leased Premises, the Rental Term and
Rental Term renewals of this Lease, any special provisions, and
shall incorporate this Lease by reference.
SECTION 27.09. CONSENT NOT
UNREASONABLY WITHHELD. Landlord
agrees that whenever under this Lease a provision is made for
Tenant to secure the written consent of Landlord, such written
consent shall not be unreasonably withheld, except as provided in
Article XIV.
SECTION 27.10. FURNISHING OF
FINANCIAL STATEMENTS. Upon
Landlord’s written request, Tenant shall promptly furnish
Landlord, from time to time, financial statements reflecting
Tenant’s current financial condition.
SECTION 27.11. TIME OF
ESSENCE. Time is
of the essence in the performance of all covenants and conditions
in this Lease for which time is a factor.
SECTION 27.12. ACCORD AND
SATISFACTION. No
payment by Tenant or receipt by Landlord of a lesser amount than
the amount owing hereunder shall be deemed to be other than on
account of the earliest stipulated amount receivable from Tenant,
nor shall any endorsement or statement on any check or any letter
accompanying any check or payment as rent be deemed an accord and
satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord’s right to recover the balance of such
rent or receivable or pursue any other remedy available under this
Lease or the law of the state wherein the Leased Premises is
located.
SECTION 27.13. NO
OPTION. The
submission of this Lease for examination does not constitute a
reservation of, or option for, the Leased Premises. This Lease
becomes effective as a lease only upon full execution and delivery
thereof by Landlord and Tenant.
SECTION 27.14.
ANTI-DISCRIMINATION. Tenant
herein covenants by and for itself, its heirs, executors,
administrators and assigns and all persons claiming under or
through it, and this Lease is made and accepted upon and subject to
the following conditions: That there shall be no discrimination
against or segregation of any person or group of persons on account
of race, sex, marital status, color, creed, national origin or
ancestry, in the leasing, subleasing, assigning, use, occupancy,
tenure or enjoyment of the Leased Premises, nor shall Tenant
itself, or any person claiming under or through it, establish or
permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number, use
or occupancy of tenants, lessees, sublessees, or subtenants in the
Leased Premises.
SECTION 27.15.
SEVERABILITY. If any
term, covenant or condition of this Lease or the application
thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the
application of such term, covenant or condition to persons or
circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby and each term,
covenant or condition of this Lease shall be valid and be enforced
to the fullest extent permitted by law.
-24-
SECTION
27.16. SURVIVAL OF OBLIGATIONS. The
provisions of this Lease, with respect to any obligation of Tenant
to pay any sum owing in order to perform any act after the
expiration or early termination of this Lease, shall survive the
expiration or early termination of this Lease.
SECTION 27.17. REPRESENTATION
REGARDING AUTHORITY. The
person(s) executing this Lease represent and warrant that they are
duly authorized to execute this Lease in their individual or
representative capacity as indicated.
SECTION 27.18. TENANT’S
LIABILITY. In the
event there is more than one (1) Tenant hereunder, the liability of
each shall be joint and several.
SECTION 27.19. LANDLORD’S
LIABILITY. Landlord’s
liability hereunder shall be limited solely to Landlord’s
interest in the Building.
SECTION 27.20. COUNTERCLAIM AND
JURY TRIAL. In the
event that Landlord commences any summary proceedings or action for
non-payment of rents or other charges provided for in this Lease,
Tenant shall not interpose any non-compulsory counterclaim of any
nature or description in any such proceeding or action. Tenant and
Landlord both waive a trial by jury of any or all issues arising in
any action or proceeding between the parties hereto or their
successors, under or relating to this Lease, or any of its
provisions. Notwithstanding the foregoing, this provision shall not
prohibit Tenant from bringing any claim it may have against
Landlord in a separate and distinct proceeding.
SECTION 27.21. TRANSFER OF
LANDLORD’S INTEREST IN THE LEASED PREMISES.
In the
event of any transfer or transfers of Landlord’s interest in
the Leased Premises, the transferor shall be automatically relieved
of any and all obligations and liabilities on the part of Landlord
accruing from and after the date of such transfer, provided the
transferee assumes such obligations and liabilities.
SECTION 27.22. TENANT SELECTION
BY LANDLORD. Landlord
reserves the absolute right to effect such other tenancies in the
Building as Landlord, in the exercise of its sole business
judgment, shall determine to best promote the interests of the
Building. Tenant does not rely on the fact, nor does Landlord
represent, that any specific tenant or number of tenants shall,
during the Rental Term of this Lease, occupy any space in the
Building.
SECTION 27.23. DISCLOSURE OF
PARTIES. Landlord
is a limited liability company, one (1) or more Managers of which
is a licensed real estate broker or agent.
SECTION 27.24. EXECUTIVE ORDER
CERTIFICATION. For
purposes of compliance with Executive Order 13224 and related
regulations, Landlord and Tenant each represent and warrant
that:
(i) it
is not acting, directly or indirectly, for or on behalf of any
person, group, entity, or nation named by any Executive Order, the
United States Department of Justice, or the United States Treasury
department as a terrorist, “Specially Designated National or
Blocked Person,” or other banned or blocked person, entity,
nation, or transaction (“SDN”) pursuant to any law, order,
rule or regulation that is enforced or administered by the Office
of Foreign Assets Control (“OFAC”);
(ii) it
is not engaged in this transaction, directly or indirectly on
behalf of, any such person, group, entity or nation;
and
(iii) it
is not in violation of Presidential Executive order 13224, the USA
Patriot Act, the Bank Secrecy Act, the Money Laundering Control Act
or an regulations promulgated pursuant thereto.
Landlord agrees to
defend, indemnify, and hold harmless Tenant from and against any
and all claims, damages, losses, risks, liabilities and expenses
(including attorney’s fees and costs) arising from or related
to any breach of the foregoing certification. Should Landlord,
during the Rental Term of this Lease, be designated an SDN, Tenant
may, at its sole option, terminate this Lease.
-25-
Tenant
agrees to defend, indemnify, and hold harmless Landlord from and
against any and all claims, damages, losses, risks, liabilities and
expenses (including attorney’s fees and costs) arising from
or related to any breach of the foregoing certification. Should
Tenant, during the Rental Term of this Lease, be designated an SDN,
Landlord may, at its sole option, terminate this
Lease.
[Signature Page(s) to Follow]
-26-
IN WITNESS WHEREOF, Landlord and Tenant
have signed and sealed this Lease as of the day and year first
above written.
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SIGNATURES
:
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LANDLORD
PARADIGM
RESOURCES, L.C., a Utah limited liability company
By:
WOODBURY CORPORATION, a Utah corporation, Its Manager
By:
__________________________________________
O.
Xxxxxxx Xxxxxxxx, President
By:
__________________________________________
X.
Xxxxxxxx Woodbury, Vice Chairman
BY:
TACHUS, INC., a Utah corporation, its Manager
By:
__________________________________________
Xxx X.
Xxxxx, President
TENANT
MAJESCO
ENTERTAINMENT COMPANY, a Delaware corporation, d/b/a POLARITY
TE
By:
__________________________________________
Its:
_______________________________
By:
__________________________________________
Its:
_______________________________
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-27-
ACKNOWLEDGMENT OF TENANT
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STATE OF
_________________________
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)
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: ss
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COUNTY OF
______________________
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)
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On this
______ day ________________________________ 2016, before me
personally appeared _________________________________________ and
_______________________________________, to me personally known to
be the ____________________________ and
_______________________________ of MAJESCO ENTERTAINMENT COMPANY, a
Delaware corporation, d/b/a POLARITY TE, the corporation that
executed the within instrument, known to me to be the persons who
executed the within instrument on behalf of such corporation
therein named, and acknowledged to me that such corporation
executed the within instrument pursuant to its by-laws or a
resolution of its board of directors.
________________________________________________
Notary
Public
-28-
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STATE OF
UTAH
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: ss
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COUNTY OF SALT
LAKE
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)
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On the
_________ day of _______________________________________ 2016,
personally appeared O. XXXXXXX XXXXXXXX and X. XXXXXXXX XXXXXXXX,
to me personally known, who being by me duly sworn did say that
they are the President and Vice Chairman of WOODBURY CORPORATION, a
Utah corporation, which is a Manager of PARADIGM RESOURCES, L.C.,
the company that executed the within instrument, known to me to be
the persons who executed the within instrument on behalf of such
company therein named, and acknowledged to me that such company
executed the within instrument pursuant to its Operating
Agreement.
__________________________________________________
Notary
Public
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STATE OF
UTAH
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)
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: ss
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COUNTY OF SALT
LAKE
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On the
_______ day of ______________________________________ 2016,
personally appeared XXX X. XXXXX, to me personally known, who being
by me duly sworn did say that he is the President of TACHUS, INC.,
a Utah corporation, which is a Manager of PARADIGM RESOURCES, L.C.,
the company that executed the within instrument, known to me to be
the persons who executed the within instrument on behalf of such
company therein named, and acknowledged to me that such company
executed the within instrument pursuant to its Operating
Agreement.
_________________________________________________
Notary
Public
-29-
SITE PLAN
-30-
LEGAL DESCRIPTION
Beginning at a
point on the northwesterly right-of-way line of Chipeta Way said
point being South 44E00’00” West
along the monument line 546.107 feet and North 46E00’00” East
52.00 feet from a Salt Lake City monument located at the P.T. of
Chipeta Way and running thence South 44E00’00” West
along said northwesterly right-of-way line 43.261 feet to a point
of curvature; thence along the arc of a 660.000 foot radius curve
to the right and said northwesterly right-of-way line, through a
central angle of 24E00’07”, 276.484
feet to a point of compound curvature; thence along the arc of a
45.000 foot radius curve to the right, through a central angle of
81E21’51”, 63.903
feet to a point of reverse curvature, said point also being on the
northeasterly right-of-way line of Arapeen Drive; thence along the
arc of a 600.575 foot radius curve to the left, through a central
angle of 18E21’58”, 192.515
feet to a point of tangency; thence North 49E00’00” West
along said northeasterly right-of-way line 484.077 feet; thence
North 41E00’00” East
300.000 feet; thence South 49E00’00” East
800.892 feet to the point of beginning.
-31-
