OFFICE LEASE

Exhibit 10.17

OFFICE LEASE

[Millrock Park North Office Building]

THIS OFFICE LEASE (this “ Lease ”) is entered into as of the 5 ^th day of December, 2005, between MILLROCK PARK NORTH, LLC, a Utah limited liability company (“ Landlord ”), whose address is P.O. Box 71405, Salt Lake City, Utah 84171, and CHG HEALTHCARE SERVICES, INC., a Delaware corporation (“ Tenant ”), whose address is 4021 South 700 East, Suite 300, Salt Lake City, Utah 84107.

FOR THE SUM OF TEN DOLLARS ($10,00) and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, Landlord and Tenant agree as follows:

1. Definitions . As used in this Lease, each of the following terms shall have the meaning indicated:

1.1. “ Basic Monthly Rent ” means the following amount(s) per calendar month for the period(s) indicated ¹ ; provided , however , that if the Commencement Date occurs on a date other than the date set forth in Paragraph 1.3 ² , the periods set forth below shall begin on such other date (as memorialized in the Commencement Date Certificate attached as Exhibit D ) and shall shift accordingly:

 

1	, which shall be subject to change as set forth in Paragraph 1.9

 

2	in accordance with the provisions of Paragraph 1.3

The Expense Stop is included in the Basic Monthly Rent.

1.2. “ Building ” means the building with the street address of 6440 South Millrock Drive, in Holladay, Utah.

1.3. “ Commencement Date ” means ³

3

the date by which both of the following have occurred: (a) a certificate (the “ Temporary Certificate ”) of final inspection and temporary occupancy with respect to the Premises has been issued by the City of Holladay; and (b) the parking stalls constituting Tenant’s Parking Stall Allocation are, in fact, available for use by Tenant; provided , however , that for each day of Tenant Delay (as defined in Paragraph 4 of the attached Exhibit C ), the Commencement Date shall be advanced forward (and occur earlier) by one day. The Commencement Date is currently projected to be May 20, 2007, but if for any reason Landlord cannot deliver possession of the Premises to Tenant on such date, then, except as expressly set forth in Paragraph 1 of the attached Rider, which sets forth Tenant’s sole and exclusive remedies for late delivery of the Premises, this Lease shall not be void or voidable, Landlord shall not be liable to Tenant for any resultant loss or damage and Tenant waives and releases all claims against Landlord and Landlord’s employees and agents with respect thereto.

 

-2-

1.4. “ Expense Stop ” means the “Operating Expenses” (as defined in Paragraph 5.1.2 ) allocable to the Premises that are actually incurred in ⁴ .

1.5. “ Expiration Date ” means the date that is ten (10) years after the Commencement Date, plus any partial calendar month occurring between the Commencement Date and the first day of the first full calendar month following the Commencement Date, if the Commencement Date does not occur on the first day of a calendar month.

1.6. “ Improvements ” means the Building and all other improvements related to the Building ⁵ .

1.7. “ Occupants ” means any assignee, subtenant, employee, agent, licensee or invitee of Tenant.

1.8. “ Permitted Use ” means general office purposes ⁶ only, and no other purpose.

1.9. “ Premises ” means ⁷

4	the first full twelve (12) calendar months from or after the Commencement Date

 

5	including, without limitation, the parking structure serving the Building and located on the Property

 

6	and uses customarily incidental to general office purposes

 

7

a portion of the second floor and all of the garden, third, fourth and fifth floors, consisting of approximately 95,000 rentable square feet in the aggregate, shown on the attached Exhibit B and located in the Building. (Until the date on which the remaining portions of the second floor are added to the Premises pursuant to Paragraphs 2 and 3 of the attached Rider, such portions shall not be included in the Premises under this Lease for any purpose including, without limitation, the calculation of square footage of the Premises.) The Premises do not include, and Landlord reserves, the exterior walls and roof of the Premises, the land and other area beneath the floor of the Premises, the pipes, ducts, conduits, wires, fixtures and equipment above the suspended ceiling of the Premises and the structural elements that serve the Premises or comprise the Building. Landlord’s reservation includes the right to install, inspect, maintain, use, repair, alter and replace those areas and items and to enter the Premises in order to do so; provided , however , that except in the event of an emergency, any such entry into the Premises shall be after at least twenty-four (24) hours’ notice to Tenant, and shall be conducted in a manner that will minimize disruption to Tenant and the operation of its business in the Premises. For all purposes of this Lease, the calculation of “rentable square feet” contained within the Premises and the Building shall be subject to final measurement and verification by Landlord’s architect and Tenant’s architect according to ANSI/BOMA Standard Z65.1-1996 (or any successor standard) and, in the event of a variation, Landlord and Tenant shall amend this Lease accordingly, amending each provision that is based on rentable square feet, including, without limitation, Basic Monthly Rent, Tenant’s Percentage of Operating Expenses and the TI Allowance (as defined in Paragraph 3 of the attached Exhibit C ); provided , that if Landlord’s architect and Tenant’s architect fail to agree on the amount of rentable square feet contained within the Premises and the Building within five (5) business days after such measurement and verification is completed by Landlord’s architect, such dispute

 

-3-

1.10. “ Property ” means the Improvements and the land owned by Landlord and serving the Improvements.

1.11. “ Security Deposit ” means $ -0- .

1.12. “ Tenant ” means ⁸ If more than one Tenant exists, any notice required or permitted by the terms of this Lease may be given by or to any one Tenant, and shall have the same force and effect as if given by or to all persons comprising Tenant.

1.13. “ Tenant’s Parking Stall Allocation ” means six (6)  parking stalls per 1,000 rentable square feet of the Premises.

1.14. “ Tenant’s Percentage of Operating Expenses ” means 65.517 percent, which is the result obtained by dividing the rentable square feet of the Premises by the rentable square feet of all premises within the Building ⁹ .

1.15. “ Term ” means the period commencing at 12:01 a.m. of the Commencement Date and expiring at midnight of the Expiration Date ¹⁰ .

shall be resolved by an independent architect mutually selected by Landlord and Tenant, acting reasonably and in good faith, the cost of which shall be shared equally by Landlord and Tenant.

 

8

each person executing this Lease as a Tenant under this Lease, unless and until this Lease is assigned, in which case the assignee shall become the Tenant under this Lease, subject to the provisions of Paragraph 10 . If more than one person is set forth on the signature line of this Lease or in any subsequent assignment instrument as Tenant, their liability under this Lease shall be joint and several.

 

9	, which shall be subject to change as set forth in Paragraph 1.9

 

10	, as such period may be extended in accordance with the provisions of this Lease

 

-4-

2. Agreement of Lease; Work of Improvement; Construction of Building .

2.1. Agreement of Lease . Landlord leases the Premises to Tenant and Tenant leases the Premises from Landlord for the Term, together with such rights of ingress and egress over and across the Property that are reasonably necessary for the use of the Premises, ¹¹ in accordance with the provisions set forth in this Lease.

2.2. Work of Improvement . ¹²

3. Term; Commencement Date . Tenant’s obligation to pay rent under this Lease shall commence on the Commencement Date (unless otherwise set forth in Paragraph 1.1 ), and shall be for the Term. On Landlord’s ¹³ request, Landlord and Tenant shall execute a written

11	together with the right to use all common areas on the Property.

 

12

The respective obligations of Landlord and Tenant to prepare the Premises for occupancy are described on the attached Exhibit C . Landlord and Tenant shall perform or have such work performed promptly, diligently and in a first-class and workmanlike manner in accordance with the attached Exhibit C and all applicable laws, ordinances, rules and regulations. On issuance of the Temporary Certificate, all of the obligations of Landlord set forth on the attached Exhibit C shall be deemed to be completed satisfactorily, except for any items set forth in a “punch list” prepared by Landlord and Tenant pursuant to a walk-through of the Premises within ten (10) business days after the issuance of the Temporary Certificate. Such punch list shall not include any items resulting from the delivery or installation of Tenant’s furniture, fixtures or equipment, which items shall be repaired promptly by Tenant at its sole cost and expense and in accordance with all applicable provisions of this Lease. Except as set forth on the attached Exhibit C , in such punch list or in any other provision of this Lease: (a) the Premises shall be delivered by Landlord and accepted by Tenant in their “as-is” condition; and (b) Landlord shall not be obligated to make any improvements or repairs to the Premises. Notwithstanding the foregoing, Landlord shall exercise commercially reasonable efforts to (a) obtain all warranties customarily provided by all contractors, subcontractors and material suppliers in connection with the Improvements, and (b) enforce such warranties.

 

13	or Tenant’s

 

-5-

acknowledgement of the Commencement Date in the form of the attached Exhibit D , which acknowledgement shall be deemed to be a part of this Lease.

4. Basic Monthly Rent . Tenant covenants to pay to Landlord without abatement (except as expressly provided in this Lease), deduction, offset, prior notice or demand the Basic Monthly Rent in lawful money of the United States at such place as Landlord may designate, in advance on or before the first day of each calendar month during the Term, commencing on the Commencement Date (unless otherwise set forth in Paragraph 1.1 ). If the first day on which Basic Monthly Rent is due under this Lease is not the first day of a calendar month, on or before such due date the Basic Monthly Rent shall be paid for the initial fractional calendar month prorated on a per diem basis and for the first full calendar month following such due date. If this Lease expires or terminates on a day other than the last day of a calendar month, the Basic Monthly Rent for such fractional month shall be prorated on a per diem basis. Notwithstanding the foregoing, ¹⁴ Tenant shall pay to Landlord in advance the Basic Monthly Rent for the first full calendar month following the Commencement Date in which full Basic Monthly Rent is payable. ¹⁵

5. Operating Expenses .

5.1. Definitions . As used in this Lease, each of the following terms shall have the meaning indicated:

5.1.1. “ Estimated Operating Expenses ” means the projected amount of Operating Expenses for any given Operating Year as estimated by Landlord, in Landlord’s reasonable discretion.

5.1.2. “ Operating Expenses ” means all reasonable costs, expenses and fees incurred or payable by Landlord in connection with this Lease and the ownership, operation, management, maintenance and repair of the Property, determined in accordance with the reasonable accounting procedures and business practices customarily employed by Landlord, including, without limitation, the costs, expenses and fees of the following: real and personal property taxes and assessments (and any tax levied in whole or in part in lieu of or in addition to

14	within ten (10) calendar days after Landlord gives Tenant written notice that (a) a footing and foundation building permit has been issued for Landlord to commence construction of the Building and its related parking structure, and (b) Landlord has commenced such construction.

 

15

On receipt, Landlord shall deposit such advance Basic Monthly Rent into a separate Landlord-controlled, interest-bearing account, where it shall remain until the date on which it is payable under this Lease. On or about the date on which it payable under this Lease, such advance Basic Monthly Rent shall be withdrawn from such account and received by Landlord as Basic Monthly Rent under this Lease, and any interest accruing on such advance Basic Monthly Rent that is in such account shall also be withdrawn and shall be applied by Landlord to Basic Monthly Rent next due under this Lease.

 

-6-

such taxes and assessments) ¹⁶ ; rent and gross receipts taxes ¹⁷ ; assessments for Millrock Park levied under a common maintenance regime; removal of snow, ice, trash and other refuse; landscaping, cleaning, janitorial, parking and security services; fire protection; utilities ¹⁸ ; supplies and materials; insurance; licenses, permits and inspections; administrative services, including, without limitation, legal, consulting and accounting services; labor and personnel; reasonable reserves for Operating Expenses; rental or a reasonable allowance for depreciation of personal property; improvements to and maintenance and repair of the Building and all equipment used in the Building; management services; and that part of office rent or the rental value of space in the Building or another building used by Landlord to operate the Property. All Operating Expenses shall be computed on an annual basis. Tenant shall have sole responsibility for and shall pay when due all taxes, assessments, charges and fees levied by any governmental or quasi-governmental authority on Tenant’s use of the Premises or any leasehold improvements, personal property or fixtures kept or installed in the Premises by Tenant. Notwithstanding the foregoing, Operating Expenses shall not include depreciation of the Improvements or debt service related to the Property ¹⁹ .

16

, excluding any increase in real property taxes caused solely by the sale, refinance, transfer of ownership or any other “triggering” event during the Term where such increase is not based on (a) an increase in the assessed value of all or a portion of the Property, and/or (b) an increase in the mill levy being applied to the Property.

 

17	, except to the extent imposed in lieu of income taxes.

 

18	(excluding any utilities that are separately rnetered and paid in full by another tenant)

 

19	or any of the following:

(a) costs associated with defending any lawsuits with any lender, costs of selling, syndicating, financing, mortgaging or hypothecating any of Landlord’s interest in the Property, costs of any disputes between Landlord and any employees, or outside fees paid in connection with disputes with other tenants;

(b) in-house legal and/or accounting fees and costs, except to the extent attributable to administering, determining and assessing the Operating Expenses,

(c) costs of any training or incentive programs;

(d) rental payments incurred in leasing air-conditioning systems, elevators or other equipment ordinarily considered to be of a capital nature, except for Included Capital Items (as defined below);

(e) Landlord’s professional dues or charitable contributions;

(f) costs of repair and restoration to the Property attributable to condemnation, fire or other casualty to the extent the damage concerned is covered, or would have been covered but for the failure to obtain the required insurance, by property insurance that Landlord is required to maintain under Paragraph 12 ;

 

-7-

(g) costs of repairs to the Premises necessitated by the breach under this Lease, willful misconduct or gross negligence of Landlord or its employees or agents;

(h) amounts in excess of the actual direct costs incurred by Landlord after reduction for all cash, trade and quantity discounts received by Landlord or its agents;

(i) costs of a capital nature (including amortization payments), including, without limitation, capital improvements, equipment, replacements, alterations and additions, except for equipment not affixed to the Improvements that is used in providing janitorial, maintenance, repair or similar services, capital improvements that are intended to reduce Operating Expenses or improve safety, and capital improvements made to keep the Property in compliance with governmental requirements applicable from time to time (collectively, “ Included Capital Items ”); provided , that the costs of any Included Capital Item shall be amortized by Landlord, together interest thereon at the prime rate then charged by Zions First National Bank, Salt Lake City (or any other bank reasonably designated by Landlord), plus two percent (2%), over the estimated useful life of such item and such amortized costs shall only be included in Operating Expenses for that portion of the useful life of the Included Capital Item that falls within the Term;

(j) attorneys’ fees, environmental investigations or reports, points, fees and other lender and closing costs incurred in connection with indebtedness secured by any deed of trust, mortgage or other debt instrument encumbering all or part of the Property or related to any unsecured debt;

(k) Landlord’s general corporate overhead and general and administrative expenses, including costs relating to accounting (except for those atributable to administering, determining and assessing the Operating Expenses), payroll, legal and computer services that are partially or totally rendered in locations outside the Building;

(l) salaries of officers, executives or other employees of Landlord or any affiliate of Landlord, other than any personnel engaged in the operation, management, maintenance and repair of the Property (but not leasing or marketing); provided , however , that if such personnel are also engaged in activities in addition to the operation, management, maintenance and repair of the Property, Landlord shall make an equitable allocation to Operating Expenses reflecting solely the operation, management, maintenance, and repair of the Property by such personnel;

(m) costs arising from the presence or removal of hazardous materials or contaminants located in the Building, including, without limitation, any such costs incurred pursuant to the requirements of any governmental laws, ordinances, regulations or orders relating to health, safety or environmental conditions, including but not limited to regulations concerning asbestos, soil and ground water conditions or contamination regarding hazardous materials or substances (but the foregoing shall not limit in any way the indemnification obligations of Tenant under Paragraph 11.1) ;

(n) costs arising from any type of insurance maintained by Landlord that is not typical and customary for a first-class office building in the Salt Lake metropolitan area; provided , however , that all costs arising from all insurance maintained by Landlord, whether or not typical and customary for a first-class office building in the Salt Lake metropolitan area, shall be included in Operating Expenses if such insurance is required by Landlord’s lender;

 

-8-

(o) acquisition costs for sculpture, paintings or other objects of art or any extraordinary costs for the insuring, repair or maintenance thereof;

(p) costs, including but not limited to attorneys’ fees, associated with the operation of the business of the entity that constitutes Landlord, as the same are distinguished from the costs of operation of the Building, including entity accounting and legal matters;

(q) costs incurred in removing and storing the property of former tenants or occupants of the Building;

(r) reserves of any kind, including but not limited to replacement reserves, and reserves for bad debts or lost rent or any similar charge not involving the payment of money to third parties; provided , however , that reasonable operating reserves may be included in Operating Expenses as and to the extent attributable to the Term;

(s) costs of traffic studies, environmental impact reports, transportation system management plans and reports and traffic mitigation measures, as well as any fees, bond costs or assessments for mass transit improvements, including TRAX assessments, levied on the Building by the Utah Transit Authority (or any other governmental entity having the authority to impose such fees, bond costs or assessments for mass transit improvements);

(t) expenses incurred in connection with the marketing, negotiation, execution or enforcement of Building leases or making tenant improvements;

(u) items for which Landlord is otherwise reimbursed;

(v) expenses resulting from the violation by Landlord of applicable law;

(w) penalties for late payment by Landlord;

(x) Landlord’s income or franchise taxes;

(y) any expense paid to a related person that is in excess of the amount that would be paid in the absence of such relationship; and

(z) costs incurred in connection with the initial development and improvement of the Property.

In addition, if the Premises are at least ninety percent (90%) vacant for more than ninety (90) days, the Operating Expenses that vary with occupancy and would otherwise be payable by Tenant under this Paragraph 5 shall be reduced equitably to reflect the reduction, if any, in variable expenses resulting from such vacancy

 

-9-

5.1.3. “ Operating Year ” means each calendar year, all or a portion of which falls within the Term ²⁰ .

5.1.4. “ Tenant’s Estimated Share of Operating Expenses ” means the result obtained by multiplying Tenant’s Percentage of Operating Expenses by the Estimated Operating Expenses and then subtracting from the result the Expense Stop. Tenant’s Estimated Share of Operating Expenses for any fractional Operating Year shall be calculated by determining Tenant’s Estimated Share of Operating Expenses for the relevant Operating Year and then prorating such amount over such fractional Operating Year.

5.1.5. “ Tenant’s Share of Operating Expenses ” means the result obtained by multiplying Tenant’s Percentage of Operating Expenses by the Operating Expenses actually incurred in any given Operating Year and then subtracting from the result the Expense Stop. Tenant’s Share of Operating Expenses for any fractional Operating Year shall be calculated by determining Tenant’s Share of Operating Expenses for the relevant Operating Year and then prorating such amount over such fractional Operating Year.

5.2. Payment of Operating Expenses . In addition to the Basic Monthly Rent, Tenant covenants to pay to Landlord without abatement, deduction, offset, prior notice (except as provided in this Paragraph 5 ) or demand Tenant’s Share of Operating Expenses in lawful money of the United States at such place as Landlord may designate, in advance on or before the first day of each calendar month during the Term, commencing on ²¹ the Commencement Date, in accordance with the provisions of this Paragraph 5 . On or prior to the ²² and prior to each Operating Year after the ²³ , if reasonably practicable, Landlord shall furnish Tenant with a written statement (the “ Estimated Operating Expenses Statement ”) showing in reasonable detail the computation of Tenant’s Estimated Share of Operating Expenses. On or prior to the ²⁴ , and on the first day of each month following the ²⁵ , Tenant shall pay to Landlord ²⁶ of Tenant’s Estimated Share of Operating Expenses as specified in the Estimated Operating Expenses Statement for such

20

; provided , however , that the first Operating Year shall be comprised of the first twelve (12) full calendar months on or after the Commencement Date, and the second Operating Year shall be comprised of the period between the expiration of the first Operating Year and the end of the calendar year in which the expiration of the first Operating Year occurs

 

21	the first day (the “ OECD ”) of the thirteen (13 th ) full calendar month on or after

 

22

OECD

 

23

OECD

 

24

OECD

 

25

OECD

 

26	a prorated monthly amount

 

-10-

Operating Year. If Landlord fails to give Tenant an Estimated Operating Expenses Statement prior to any Operating Year, Tenant shall continue to pay on the basis of the Estimated Operating Expenses Statement for the prior Operating Year until the Estimated Operating Expenses Statement for the current Operating Year is received. If at any time it appears to Landlord that the Operating Expenses will vary from Landlord’s original estimate, Landlord may deliver to Tenant a revised Estimated Operating Expenses Statement for such Operating Year, and subsequent payments by Tenant for such Operating Year shall be based on such revised Estimated Operating Expenses Statement. Within a reasonable time after the expiration of any Operating Year ²⁷ , Landlord shall furnish Tenant with a written statement (the “ Actual Operating Expenses Statement ”) showing in reasonable detail the computation of Tenant’s Share of Operating Expenses for such Operating Year and the amount by which Tenant’s Share of Operating Expenses exceeds or is less than the amounts paid by Tenant during such Operating Year. If the Actual Operating Expenses Statement indicates that the amount actually paid by Tenant for the relevant Operating Year is less than Tenant’s Share of Operating Expenses for such Operating Year, Tenant shall pay to Landlord such deficit within thirty (30) days after delivery of the Actual Operating Expenses Statement. Such payments by Tenant shall be made notwithstanding that the Actual Operating Expenses Statement is furnished to Tenant after the expiration of the Term or sooner termination of this Lease. If the Actual Operating Expenses Statement indicates that the amount actually paid by Tenant for the relevant Operating Year exceeds Tenant’s Share of Operating Expenses for such Operating Year, such excess shall, at ²⁸ option, either be applied against any amount then payable or to become payable by Tenant under this Lease, or promptly refunded to Tenant. No failure by Landlord to require the payment of Tenant’s Share of Operating Expenses for any period shall constitute a waiver of Landlord’s right to collect Tenant’s Share of Operating Expenses for such period or for any subsequent period. If the Expense Stop exceeds Tenant’s Share of Operating Expenses for any full or partial Operating Year, Tenant shall not be entitled to any refund, credit or adjustment of Basic Monthly Rent. Notwithstanding the foregoing to the contrary, the Operating Expenses that vary with occupancy and are attributable to any part of the Term or the base year used to calculate the Expense Stop in which less than ninety-five percent (95%) of the rentable area of the Building is occupied by tenants, will be adjusted by Landlord to the amount that the Operating Expenses would have been if ninety-five percent (95%) of the rentable area of the Building had been occupied.

5.3. Resolution of Disagreement . Every statement given to Tenant by Landlord under this Lease, including, without limitation, any statement given to Tenant pursuant to Paragraph 5.2 , shall be conclusive and binding on Tenant unless within ²⁹ days after the receipt of such statement Tenant notifies Landlord that Tenant disputes the correctness of such statement, specifying the particular respects in which the statement is claimed to be incorrect. Pending the determination of such dispute by agreement between Landlord and Tenant, Tenant

27	(but Landlord shall exert its best commercially reasonable efforts to do so on or before April 1 st of the following Operating Year, but in no event later than May 1 st of such Operating Year)

 

28

Tenant’s

 

29	forty-five (45)

 

-11-

shall, within thirty (30) days after receipt of such statement, pay the amounts set forth in such statement in accordance with such statement, and such payment shall be without prejudice to Tenant’s position. If such dispute exists and it is subsequently determined that Tenant has paid amounts in excess of those then due and payable under this Lease, Landlord, at ³⁰ option, shall either apply such excess to an amount then payable or to become payable under this Lease or return such excess to Tenant. ³¹ Landlord shall grant to an independent certified public accountant retained by Tenant reasonable access to Landlord’s books and records for the purpose of verifying Operating Expenses incurred by Landlord, at Tenant’s sole cost ³² .

30

Tenant’s

 

31

If such dispute is not resolved between Landlord and Tenant within sixty (60) days after Tenant notifies Landlord that Tenant disputes the correctness of such statement, at the request of either Landlord or Tenant, such dispute shall be resolved by an independent certified public accountant, whose decision shall be binding. Landlord and Tenant, acting reasonably and in good faith, shall mutually select, and equally share the cost of, such accountant, subject to the provision in the immediately following sentence.

 

32

; provided , however , that if such verification reveals that Tenant’s Share of Operating Expenses set forth in any Actual Operating Expenses Statement exceeded by more than five percent (5%) the amount that actually was due, Landlord shall reimburse Tenant for the reasonable charges of such accountant. Tenant may not hire such accountant on a contingency basis

 

-12-

7. Use . Tenant shall not use or occupy or permit the Premises to be used or occupied for any purpose other than for the Permitted Use, and shall not do or permit anything to be done by Tenant’s Occupants which may (a) increase the existing rate or violate the provisions of any ³³ insurance carried with respect to the Property, (b) create a public or private nuisance, commit waste or interfere with, annoy or disturb any other tenant or occupant of the Building or Landlord in the operation of the Building, (c) overload the floors or otherwise damage the structure of the Building, (d) constitute an improper, immoral or ³⁴ purpose, (e) increase the cost of any utility service beyond the level permitted by Paragraph 8 , (f) violate any present or future laws, ordinances, regulations or requirements or any covenants, conditions and restrictions existing with respect to the Property, (g) subject Landlord or any other tenant to any liability to any third party, or (h) lower the first-class character of the Building. Tenant shall, at Tenant’s sole cost, ³⁵ (v) use the Premises in a careful, safe and proper manner, (w) comply with all present and future laws, ordinances, regulations and requirements and any covenants, conditions and restrictions existing with respect to the Property, including, without limitation, those relating to hazardous substances, hazardous wastes, pollutants or contaminants and those relating to access by disabled persons, (x) comply with the requirements of any board of fire underwriters or other similar body relating to the Premises, (y) keep the Premises free of objectionable noises and odors, including, without limitation, cigar, pipe and similar smoke odors, and (z) not store, use or dispose of any hazardous substances, hazardous wastes, pollutants or contaminants on the Property ³⁶ . Landlord may, in Landlord’s sole discretion, designate some or all of the Building (including the Premises) as a non-smoking area.

8. Utilities and Services .

8.1. Landlord’s Obligations . Landlord shall cause to be furnished to the Premises electricity for normal lighting and office computers and equipment, heat and air-conditioning ³⁷ , light janitorial services (emptying wastebaskets, dusting and vacuuming) and

33

customary

 

34

illegal

 

35	and in connection with Tenant’s use and occupancy of the Premises,

 

36

; provided that Tenant shall have no obligation with respect to any hazardous substances, hazardous wastes, pollutants or contaminants on the Property existing as of the Commencement Date and not stored, used or disposed of by Tenant, or with respect to any failure of the Improvements to comply as of the Commencement Date with any then-existing applicable laws, rules or regulations

 

37

sufficient to cause the temperature of the Premises to be not higher than 74° Fahrenheit during the summer and not lower than 68° Fahrenheit during the winter, provided that Tenant uses and occupies the Premises in compliance with the specifications set forth in Paragraph 7(b) of Appendix 2 to Exhibit C attached to this Lease, water and sewer service

 

-13-

window washing, ³⁸ snow ³⁹ removal, landscaping, grounds keeping and elevator service. If Landlord provides electric current to the Premises in excess of normal office usage levels to enable Tenant to operate any data processing or other equipment requiring extra electric current, or if Landlord provides any other utility or service which is in excess of that typically required for routine office purposes, including additional cooling necessitated by Tenant’s equipment, Landlord shall reasonably determine or calculate the cost of such additional electric current, utility or service, and Tenant shall pay such cost on a monthly basis to Landlord. Landlord may cause an electric or water meter to be installed in the Premises in order to measure the amount of electricity or water consumed for any such use, and the cost of such meter shall be paid promptly by Tenant. Tenant, at Tenant’s sole cost, shall provide ⁴⁰ service to the Premises. Tenant may be separately billed for and, if billed, shall pay the cost of, any ⁴¹ , heating, ventilating and air-conditioning used during any period other than Monday through Friday from ⁴²

8.2. Landlord’s Liability . Landlord shall not be liable for and Tenant shall not be entitled to terminate this Lease, to effectuate any abatement or reduction of rent or to collect any damages by reason of Landlord’s failure to provide or furnish any of the utilities or services set forth in Paragraph 8.1 if such failure was occasioned by any strike or labor controversy, any act or default of Tenant, the inability of Landlord to obtain services from the company supplying the same or any other cause beyond the reasonable control of Landlord or by the making of necessary repairs or improvements to the Property ⁴³ . In no event shall Landlord be liable for loss or injury to

38	trash removal,

 

39

and ice

 

40	telecommunication

 

41

lighting

 

42

6:00 a.m. to 6:00 p.m. and Saturday from 8:00 a.m. to 12:00 noon; provided , however , that during the initial ten (10) year period constituting the Term under this Lease, such cost for lighting shall be $10.00 per hour per floor and such cost for heating, ventilating and air-conditioning shall be $25.00 per hour per floor, with the cost for such lighting, heating, ventilating and air-conditioning after such initial ten (10) year period being whatever Landlord customarily charges its tenants in the Building from time to time for such services. Landlord shall make at least two (2) communication vendors available to Tenant for telephone and data service with copper and/or fiber optics. Service redundancy shall also be available to Tenant at Tenant’s sole cost and expense. On or before the date on which Tenant takes occupancy of any other building in Millrock Park, the Building will have conduit installed to allow for interconnectivity of the Building with such other building.

 

43

, and Tenant waives and releases all claims against Landlord and Landlord’s employees and agents with respect thereto, excepting only claims caused by the Indemnified Causes (as defined below); provided , however , that if such failure or inability continues for any reason whatever (other than Tenant’s acts or omissions), and Tenant is unable to occupy and use the Premise for the Permitted Use, for more than one hundred eighty (180) consecutive days, Tenant shall have the right to terminate this Lease on written

 

-14-

persons or property, however arising, occurring in connection with or attributable to any failure to furnish such utilities or services even if within the control of Landlord, ⁴⁴

9. Maintenance and Repairs; Alterations; Access to Premises .

9.1. Maintenance and Repairs . Landlord shall maintain in good order, condition and repair and in a clean and sanitary condition ⁴⁵ the Property, excepting the Premises and portions of the Building leased by persons not affiliated with Landlord ⁴⁶ . Tenant, at Tenant’s sole cost, shall maintain the Premises and every part of the Premises (including, without limitation, all floors, walls and ceilings and their coverings, doors and locks, and Tenant’s furnishings, trade fixtures, signage, leasehold improvements, equipment and other personal property from time to time situated in or on the Premises) in good order, condition and repair and in a clean and sanitary condition. The presence of mold may have adverse health effects for Tenant and Tenant’s Occupants and may impact building materials. To reduce the likelihood and impact of mold growth within the Premises and the Building, Tenant shall notify Landlord or its designated property manager immediately in the event of any observed water intrusion/loss (e.g., plumbing

notice given by Tenant to Landlord within fifteen (15) days after the expiration of such one hundred eighty (180) day period

 

44

and Tenant waives and releases all claims against Landlord and Landlord’s employees and agents with respect thereto, excepting only claims caused by the Indemnified Causes. Notwithstanding the foregoing to the contrary, Landlord shall exercise its best commercially reasonable efforts to restore any such discontinued utilities and services as soon as reasonably possible, and except in cases covered by Paragraphs 13 or 14 , if, but only if, (a) Landlord fails to furnish to the Premises electricity, heat, air-conditioning or elevator service in accordance with Paragraph 8.1 , (b) as a result of such failure, Tenant is unable to occupy and use the Premises for the Permitted Use for a period of five (5) or more consecutive business days, and (c) such failure is not caused by any act or omission of Tenant or Tenant’s Occupants, the Basic Monthly Rent and Tenant’s Share of Operating Expenses shall be abated commencing as of the fifth (5 th ) such consecutive business day and such abatement shall continue until the date on which the electricity, heat, air-conditioning or elevator service concerned is again furnished by Landlord in accordance with Paragraph 8.1 , on which date such abatement shall cease and payment of Basic Monthly Rent and Tenant’s Share of Operating Expenses shall resume in accordance with this Lease. Notwithstanding the cessation of such abatement, if Tenant previously has vacated the Premises as a result of such failure, Tenant shall not be required to re-occupy the Premises, but no such vacation shall in any way affect any obligation of Tenant under this Lease.

 

45	and in compliance with all applicable laws, ordinances, regulations and requirements

 

46

; provided , that, subject to reimbursement of Landlord to the extent provided by Paragraph 5 , and excluding damage caused by Tenant or Tenant’s Occupants, Landlord shall be solely responsible for maintenance and repair of the footings, foundations, floor slabs, exterior walls, roof and exterior windows of the Building, the electrical, plumbing, fire and life safety, heating, ventilating and air-conditioning systems serving the Building and the Premises (excepting any installed by Tenant) and the restrooms, lobbies and other common areas of the Building

 

-15-

leaks, roof leaks, large volume liquid spills, etc.) either within the Premises or within the interior or exterior common areas of the Building ⁴⁷ .

9.2. Alterations . Tenant shall not make any change, addition or improvement to the Premises (including, without limitation, the attachment of any fixture or equipment, or the addition of any pipe, line, wire, conduit or related facility for water, electricity, natural gas, telephone, sewer or other utility), unless such change, addition or improvement (a) equals or exceeds the then-current standard for the Building and utilizes only new and first-grade materials, (b) is in conformity with all applicable laws, ordinances, regulations and requirements, and is made after obtaining any required permits and licenses, (c) is made with the prior written consent of Landlord, (d) is made pursuant to plans and specifications approved in writing in advance by Landlord, (e) is made after Tenant has provided to Landlord such indemnification or bonds, including, without limitation, a performance and completion bond, in such form and amount as may be satisfactory to Landlord, to protect against claims and liens for labor performed and materials furnished, and to insure the completion of any change, addition or improvement, (f) is carried out by persons approved in writing by Landlord, who, if required by Landlord, deliver to Landlord before commencement of their work proof of such insurance coverage as Landlord may require, with Landlord named as an additional insured, and (g) is done only at such time and in such manner as Landlord may reasonably specify ⁴⁸ . Any such change, addition or improvement shall immediately become the property of Landlord. Tenant shall promptly pay the entire cost of any such change, addition or improvement. Tenant shall indemnify, defend and hold harmless Landlord from and against all liens, claims, damages, losses, liabilities and expenses, including attorneys’ fees, which may arise out of, or be connected in any way with, any such change, addition or improvement ⁴⁹ . Within ten (10) days following the imposition of any lien resulting from any such change, addition or improvement, Tenant shall cause such lien to be released of record by payment of money or posting of a proper bond.

9.3. Access to Premises . Landlord and Landlord’s agents, employees and contractors may enter the Premises at reasonable times (including during normal business hours) on ⁵⁰ notice to Tenant for the purpose of cleaning, inspecting, altering, improving and repairing the Premises or other parts of the Building and ascertaining compliance with the

47	; provided , that the failure of Tenant to make such immediate notification shall not make Tenant liable for any damage resulting from such water intrusion/loss, unless Tenant would otherwise be liable for such damage under the other provisions of this Lease

 

48

; provided , however , that the foregoing items (c) through (g), inclusive shall not apply to the installation or movement within the Premises, by or at the direction of Tenant, of Tenant’s modular furniture, computers, equipment, wires, lines, cabling or similar connections, trade fixtures, partitions or other personal property located or to be located within the Premises that do not (x) require modification to the Building, (y) affect the structure of the Building, or (z) require the addition of, or connection to, any pipe, line, wire, conduit or related facility for water, electricity, natural gas, sewer or other utility

 

49	, excepting only claims caused by the Indemnified Causes

 

50	at least twenty-four (24) hours’

 

-16-

provisions of this Lease by Tenant ⁵¹ . Landlord shall have free access to the Premises in an emergency. Landlord may also show the Premises to prospective purchasers, tenants ⁵² or mortgagees at reasonable times. Tenant waives any claim for any damage, injury or inconvenience to, or interference with, Tenant’s business, occupancy or quiet enjoyment of the Premises and other loss occasioned by such entry, unless caused by Landlord’s willful misconduct or gross negligence. Landlord shall at all times have a key with which to unlock all of the doors in the Premises (excluding Tenant’s vaults, safes and similar areas designated in writing by Tenant in advance).

10. Assignment .

10.1. Prohibition . ⁵³ Tenant shall not, either voluntarily or by operation of law, assign, transfer, mortgage, encumber, pledge or hypothecate this Lease or Tenant’s interest in this Lease, in whole or in part, permit the use of the Premises or any part of the Premises by any persons other than Tenant or Tenant’s employees, or sublease the Premises or any part of the Premises, without the prior written consent of Landlord. Consent to any assignment or subleasing shall not operate as a waiver of the necessity for consent to any subsequent assignment or subleasing and the terms of such consent shall be binding on any person holding by, through or under Tenant. At Landlord’s option, any assignment or sublease without Landlord’s prior written consent ⁵⁴ shall be void ab initio (from the beginning), ⁵⁵

51	; provided , however , that except in the event of an emergency, any such entry into the Premises shall be conducted in a manner that will minimize disruption to Tenant and the operation of its business in the Premises

 

52	(but only during the last twelve (12) months of the Term)

 

53	Except as otherwise expressly permitted by this Lease,

 

54	, when such consent is required,

 

55

Provided that this Lease is in full force and effect, Tenant is not in default under this Lease and no circumstance or event exists which with the passage of time or the giving of notice or both would constitute such a default, when such consent is required, Landlord shall not unreasonably withhold, condition or delay its consent to an assignment of this Lease or a subleasing of all or a portion of the Premises for all or a portion of the Term, provided that:

(a) Tenant provides to Landlord (i) the name and address of the proposed assignee or subtenant, (ii) the terms and conditions of the proposed assignment or sublease, (iii) any information reasonably required by Landlord with respect to the nature and character of the proposed assignee or subtenant and its business, activities and intended use of the Premises, (iv) any references and current financial information reasonably required by Landlord with respect to the net worth, credit and

 

-17-

financial responsibility of the proposed assignee or subtenant, and (v) an executed counterpart of the assignment or sublease agreement that complies with Paragraph 10.3 ;

(b) the nature, character and reputation of the proposed assignee or subtenant and its business, activities and intended use of the Premises are suitable to and in keeping with the standards of Millrock Park, and in compliance with this Lease and all applicable laws, ordinances, rules and regulations;

(c) the proposed assignee or subtenant is a reputable party whose net worth, credit and financial responsibility are, considering the responsibilities involved, reasonably satisfactory to Landlord; and

(d) the proposed assignee or subtenant is not then an occupant of any part of the Building or of any other building within Millrock Park or a party who actively dealt with Landlord or any employee, agent or representative of Landlord (directly or through a broker) with respect to space in the Building or of any other building within Millrock Park during the six (6) months immediately preceding Tenant’s request for Landlord’s consent (with “actively dealt with ” meaning, at least, written correspondence and negotiation for the lease of space within Millrock Park, but excluding, without more, the inquiry and delivery of leasing or property information relating to Millrock Park); provided , however , that Landlord shall not unreasonably withhold or delay its consent to an assignment of this Lease or a subleasing of the Premises to a proposed assignee or subtenant under the foregoing portion of this subparagraph (d) if neither Landlord nor any affiliate of Landlord is able and willing to accommodate the space needs of such assignee or subtenant within Millrock Park and Tenant is able to do so by such assignment or sublease.

If Tenant believes that Landlord has unreasonably withheld, conditioned or delayed its consent, Tenant’s sole remedy shall be to seek a declaratory judgment that Landlord has unreasonably withheld, conditioned or delayed its consent or an order of specific performance or mandatory injunction of Landlord’s agreement to give its consent. In no event shall Tenant have any right to damages.

Notwithstanding anything else to the contrary contained in this Paragraph 10 . Tenant may, without the consent of Landlord, assign this Lease or sublease all or a portion of the Premises to any affiliate of Tenant, any corporation or other business entity that acquires all or substantially all of the assets of Tenant or any entity resulting from a merger, non-bankruptcy reorganization or consolidation with Tenant, provided that Tenant gives Landlord prior or concurrent written notice of such assignment or sublease and otherwise complies with Paragraph 10.3 . As used in the immediately preceding sentence, “ affiliate” means an entity that directly or indirectly controls, is controlled by, or is under common control with, Tenant, where “ control ” is the holding of fifty percent (50%) or more of the outstanding voting interests.

Notwithstanding anything else to the contrary contained in this Lease, any sale, assignment or other transfer of Tenant’s capital stock, whether through any public exchange, in a private sale, for estate planning purposes, by redemption or the issuance of additional stock of any class, or otherwise, shall not be deemed an assignment or sublease, in whole or in part, of this Lease or any of Tenant’s rights or obligations hereunder for which Landlord’s consent shall be required.

 

-18-

10.3. Landlord’s Rights . If this Lease is assigned or if all or any portion of the Premises is subleased or occupied by any person other than Tenant without obtaining Landlord’s consent ⁵⁶ , Landlord may collect rent and other charges from such assignee or other party, and apply the amount collected to the rent and other charges payable under this Lease, but such collection shall not constitute consent or waiver of the necessity of consent to such assignment or subleasing, nor shall such collection constitute the recognition of such assignee or subtenant as Tenant under this Lease or a release of Tenant from the further performance of all of the covenants and obligations of Tenant contained in this Lease. No consent by Landlord to any assignment or subleasing by Tenant shall relieve Tenant of any obligation to be paid or performed by Tenant under this Lease, whether occurring before or after such consent, assignment or subleasing, but rather Tenant and Tenant’s assignee or subtenant, as the case may be, shall be jointly and severally primarily liable for such payment and performance. Tenant shall reimburse Landlord for Landlord’s attorneys’ and other fees and costs incurred in connection with both determining whether to give consent and giving consent ⁵⁷ . No assignment or subleasing under this Lease shall be effective unless and until Tenant provides to Landlord an executed counterpart of the assignment or sublease agreement, which shall specifically state that (a) such agreement is subject to all of the provisions of this Lease, (b) in the case of an assignment, the assignee assumes and agrees to perform all of Tenant’s obligations under this Lease, (c) the assignee or subtenant, as the case may be, may not further assign such agreement, or allow the Premises to be used by others, without the prior written consent of Landlord in each instance ⁵⁸ , (d) a consent by Landlord to such

56	when such consent is required

 

57	when such consent is required

 

58	when such consent is required

 

-19-

assignment or subleasing ⁵⁹ shall not be deemed or construed to modify, amend or affect the provisions of this Lease or Tenant’s obligations under this Lease, which shall continue to apply to the Premises and the occupants of the Premises as if the assignment or sublease had not been made, (e) if Tenant defaults in the payment of any amounts due under this Lease, Landlord is authorized to collect any rents or other amounts due from any assignee, subtenant or other occupant of the Premises and to apply the net amounts collected to the sums payable under this Lease, and (f) the receipt by Landlord of any amounts from an assignee, subtenant or other occupant of any part of the Premises shall not be deemed or construed as releasing Tenant from Tenant’s obligations under this Lease or the acceptance of that party as a direct tenant. ⁶⁰

11. Indemnity; Waiver and Release .

11.1. Indemnity . Tenant shall indemnify, defend and hold harmless Landlord and Landlord’s employees and agents from and against all demands, claims, causes of action, judgments, losses, damages ⁶¹ , liabilities, fines, penalties, costs and expenses, including attorneys’ fees, arising from the occupancy or use of the Property by Tenant or Tenant’s Occupants, any hazardous substances, hazardous wastes, pollutants or contaminants deposited, released or stored by Tenant or Tenant’s Occupants on the Property, the conduct of Tenant’s business on the Property, any act or omission done, permitted or suffered by Tenant or any of Tenant’s Occupants, any default or nonperformance by Tenant under this Lease, any injury or damage to the person, property or business of Tenant or Tenant’s Occupants or any litigation commenced by or against Tenant to which Landlord is made a party without willful misconduct or gross negligence on the part of Landlord. If any action or proceeding is brought against Landlord or Landlord’s employees or agents by reason of any of the matters set forth in the preceding sentence, Tenant, on notice from Landlord, shall defend Landlord at Tenant’s expense with counsel reasonably satisfactory to Landlord. The provisions of this Paragraph 11.1 shall survive the expiration of the Term or sooner termination of this Lease.

11.2. Waiver and Release . Landlord

59	,when such consent is required,

 

60	Tenant shall cause any such assignee or subtenant to execute and deliver to Landlord a waiver of claims similar to the waiver contained in Paragraph 12 and to obtain the waiver of subrogation rights endorsements described in that Paragraph.

 

61	(excluding consequential, indirect, special, exemplary, punitive or other similar damages awarded to Landlord or Landlord’s employees or agents)

 

-20-

and Landlord’s employees and agents shall not be liable for any loss, injury, death or damage to persons, property or Tenant’s business resulting from any theft, act of God, public enemy, injunction, riot, strike, insurrection, war, court order, requisition, order of governmental body or authority, fire, explosion, falling object, steam, water, rain, snow, ice, wind and other weather-related occurrences, breakage, leakage, obstruction or other defects of pipes, sprinklers, wires, appliances, plumbing, air-conditioning or lighting fixtures, construction, repair or alteration of the Premises ⁶² or other cause beyond Landlord’s reasonable control. ⁶³

12. Insurance . On or before the date of this Lease, Tenant shall, at Tenant’s sole cost, procure and continue in force the following insurance coverage: (a) commercial general liability insurance with a combined single limit for bodily injury and property damage of not less than $1,000,000 per occurrence, including, without limitation, contractual liability coverage for the performance by Tenant of the indemnity agreement set forth in Paragraph 11.1 ; (b) property insurance with special causes of loss including theft coverage, insuring against fire, extended coverage risks, vandalism and malicious mischief, and including boiler and sprinkler leakage coverage, in an amount equal to the full replacement coat (without deduction for depreciation) of all furnishings, trade fixtures, leasehold improvements, equipment and other personal property from time to time situated in or on the Premises; and (c) workers’ compensation insurance satisfying Tenant’s obligations under the workers’ compensation laws of the state of Utah. Such minimum limits shall in no event limit the liability of Tenant under this Lease. Such liability insurance shall name Landlord and any other person specified from time to time by Landlord as an additional insured, such property insurance shall name Landlord as a loss payee as Landlord’s interests may appear, and both such liability and property insurance shall be with companies ⁶⁴

62	, unless caused by Landlord’s willful misconduct or gross negligence,

 

63

11.3. Landlord’s Limited Indemnity . Landlord shall indemnify, defend and hold harmless Tenant and Tenant’s employees and agents (but no other person) from and against all demands, claims, causes of action, judgments, losses, damages (but not consequential, indirect, special, exemplary, punitive or similar damages awarded to Tenant or Tenant’s employees or agents), liabilities, fines, penalties, costs and expenses, including attorneys’ fees, suffered by Tenant or Tenant’s employees or agents (but no other person) that are solely and directly caused by either of the following, but no other cause (collectively, the “ Indemnified Causes ”):

(a) the failure of Landlord or the holder of any mortgage or deed of trust covering the Property whose name and address have been furnished to Tenant in writing to cure any default of Landlord or its employees or agents under this Lease even though all of the required notices have been given and all of the time periods for cure have expired under Paragraph 16.4 ; or

(b) Landlord’s willful misconduct or gross negligence.

The provisions of this Paragraph 11.3 shall survive the expiration of the Term or sooner termination of this Lease.

 

64	authorized to do business in Utah

 

-21-

Tenant shall furnish Landlord with certificates of coverage. No such policy shall be cancelable or subject to reduction of coverage or other modification except after thirty (30) days’ prior written notice to Landlord by the insurer. All such policies shall be written as primary policies, not contributing with and not in excess of the coverage that Landlord may carry, and shall only be subject to such deductibles as ⁶⁵ . Tenant shall, at least ten (10) days prior to the expiration of such policies, furnish Landlord with renewals of, or binders for, such policies. Landlord and Tenant waive all rights to recover against each other, against any other tenant or occupant of the Building and against the officers, directors, shareholders, partners, joint venturers, employees, agents, customers, invitees or business visitors of each other or of any other tenant or occupant of the Building, for any loss or damage arising from any cause covered by any insurance carried by the waiving party, but only to the extent that such loss or damage is actually covered. Landlord and Tenant shall cause their respective insurance carriers to issue appropriate waivers of subrogation rights endorsements to all policies of insurance carried in connection with the Premises or the contents of the Premises. Any mortgage lender holding an interest in any part of the Property may, at Landlord’s option, be afforded coverage under any policy required to be secured by Tenant under this Lease by use of a mortgagee’s endorsement to the policy concerned. ⁶⁶

13. Damage or Destruction . If the Premises are partially damaged or destroyed by any casualty insured against under any insurance policy maintained by Landlord, Landlord shall, on receipt of the insurance proceeds, repair the Premises to substantially the condition in which the Premises were immediately prior to such damage or destruction. Landlord’s obligation under the preceding sentence shall not exceed the lesser of the cost of the standard improvements installed by Landlord in the Premises, or the proceeds received by Landlord from any insurance policy

65	Tenant may select

 

66

Notwithstanding the foregoing, provided that Tenant gives Landlord prior written notice, Tenant may self-insure as to any or all of the risks for which insurance is required to be carried by Tenant pursuant to the foregoing portion of this Paragraph through a commercially reasonable program of self-insurance, but only for so long as Tenant maintains a minimum net worth of at least $25,000,000. Landlord shall, as part of the Operating Expenses, procure and continue in force (x) property insurance covering the Building with a replacement cost endorsement, subject to such commercially reasonable deductibles as Landlord may select, together with rental interruption insurance in a commercially reasonable amount, (y) commercial general liability insurance with a combined single limit for bodily injury and property damage of not less than $1,000,000 per occurrence, and (z) any insurance required by law for the protection of employees of Landlord working on or around the Property (including, without limitation, worker’s compensation insurance) with no less than the limits required by law. All such insurance shall be provided by financially capable, licensed, third-party insurers.

 

-22-

maintained by Landlord. Until such repair is complete, the Basic Monthly Rent ⁶⁷ shall be abated proportionately commencing on the date of such damage or destruction as to that portion of the Premises rendered untenantable, if any. If (a) by reason of such occurrence the Premises are rendered wholly untenantable, (b) the Premises are damaged as a result of a risk not covered by insurance, (c) the Premises are damaged in whole or in part during the last twelve (12) months of the Term, (d) the Premises or the Building (whether or not the Premises are damaged) is damaged to the extent of twenty-five percent (25%) or more of the then-replacement value of either or to the extent that it would take, in Landlord’s opinion, in excess of ninety (90) days to complete the requisite repairs, or (e) insurance proceeds adequate to repair the Property are not available to Landlord for any reason, Landlord may either elect to repair the damage or cancel this Lease by notice of cancellation within thirty (30) days after such event, and ⁶⁸ such notice Tenant shall vacate and surrender the Premises to Landlord. If Landlord elects to repair any such damage, any abatement of Basic Monthly Rent shall end on notice given by Landlord to Tenant that the Premises have been repaired. If the damage is caused by the negligence of Tenant or Tenant’s Occupants, Basic Monthly Rent shall not abate, Except for abatement of Basic Monthly Rent ⁶⁹ , if any, Tenant shall have no claim against Landlord for any loss suffered by reason of any such damage, destruction, repair or restoration, nor may Tenant terminate this Lease as the result of any statutory provision in effect on or after the date of this Lease pertaining to the damage and destruction of the Premises or the Building. The proceeds of all insurance carried by Tenant on Tenant’s furnishings, trade fixtures, leasehold improvements, equipment and other personal property shall be held in trust by Tenant for the purpose of the repair and replacement of the same. Landlord shall not be required to repair any damage to, or to make any restoration or replacement of, any furnishings, trade fixtures, leasehold improvements, equipment and other personal property installed in the Premises by Tenant or at the direct or indirect expense of Tenant ⁷⁰ . Unless this Lease is terminated by Landlord pursuant to this Paragraph, Tenant shall be required to restore or replace such furnishings, trade fixtures, leasehold improvements, equipment and other personal property on damage or destruction in at least a condition equal to that existing prior to such event.

14. Condemnation . As used in this Paragraph, the term “ Condemnation Proceedings ” means any actions or proceedings in which any interest in the Property is taken for any public or quasi-public purpose by any lawful authority through exercise of the power of eminent domain or by purchase or other means in lieu of such exercise. If the whole of the Premises is taken through Condemnation Proceedings, this Lease shall automatically terminate as of the date of the taking. The phrase “ as of the date of the taking ” means the date of taking actual physical possession by the condemning authority or such earlier date as the condemning authority gives notice that it is deemed to have taken possession. If part, but not all, of the Premises is taken, either Landlord or

67	and Tenant’s Share of Operating Expenses

 

68	within thirty (30) days after receipt of

 

69	and Tenant’s Share of Operating Expenses

 

70	, unless such damage is caused by the willful misconduct or gross negligence of Landlord or Landlord’s employees or agents (but subject to the waiver of subrogation provisions set forth in Paragraph 12 )

 

-23-

Tenant may terminate this Lease. Landlord may terminate this Lease if any portion of the Property (whether or not including the Premises) is taken which, in Landlord’s reasonable judgment, substantially interferes with Landlord’s ability to operate or use the Property for the purposes for which the Property was intended. Any such termination must be accomplished through written notice given no later than thirty (30) days after, and shall be effective as of, the date of such taking. In all other cases, or if neither Landlord nor Tenant exercises its right to terminate, this Lease shall remain in effect. If a portion of the Premises is taken and this Lease is not terminated, the Basic Monthly Rent shall be reduced in the proportion that the floor area taken bears to the total floor area of the Premises immediately prior to the taking. 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 award for severance damage and any sums compensating for diminution in the value of or deprivation of the leasehold estate under this Lease, shall be the sole and exclusive property of Landlord, provided that Tenant shall be entitled to any award for the loss of, or damage to, Tenant’s trade fixtures or loss of business and moving expenses, if a separate award is actually made to Tenant and if the same will not reduce Landlord’s award. Tenant shall have no claim against Landlord for the occurrence of any Condemnation Proceedings, or for the termination of this Lease or a reduction in the Premises as a result of any Condemnation Proceedings.

15. Landlord’s Financing . This Lease shall be subordinate to any existing first mortgage, first deed of trust, ground lease, declaration of covenants, conditions, easements and restrictions and all renewals, modifications, amendments, consolidations, replacements and extensions of any such instruments. No documentation other than this Lease shall be required to evidence such subordination. If the holder of any mortgage or deed of trust elects to have this Lease superior to the lien of its mortgage or deed of trust, and gives written notice of such election to Tenant, this Lease shall be deemed prior to such mortgage or deed of trust. Tenant shall execute such documents as may ⁷¹ be required by Landlord to confirm such subordination or priority within ten (10) days after request, provided that the lender concerned concurrently provides to Tenant a non-disturbance agreement. ⁷² Tenant shall from time to time if so requested by Landlord and if doing so will not adversely affect Tenant’s interests under this Lease, join with Landlord in amending this Lease so as to meet the needs or requirements of any lender that is considering making or that has made a loan secured by all or any portion of the Property. Any sale, assignment or transfer of Landlord’s interest under this Lease or in the Premises, including any such disposition resulting from Landlord’s default under a debt obligation, shall be subject to this Lease and Tenant shall attorn to Landlord’s successors and assigns and shall recognize such successors or assigns as Landlord under this Lease, regardless of any rule of law to the contrary or absence of privity of contract ⁷³ .

71	reasonably

 

72

In addition, so long as Tenant occupies at least 15,000 rentable square feet in the Building, Landlord shall exercise its best, commercially reasonable efforts to cause each lender making a mortgage loan encumbering the Building to enter into a subordination, non-disturbance and attainment agreement.

 

73	, and such successors and assigns shall recognize this Lease and not disturb Tenant’s use and occupancy of the Premises so long as Tenant is not in default under this Lease

 

-24-

16. Default .

16.1. Default by Tenant . The occurrence of any of the following events shall constitute a default by Tenant under this Lease: (a) Tenant fails to pay in a timely manner any installment of Basic Monthly Rent, Tenant’s Share of Operating Expenses or any other sum due under this Lease within three (3) business days after written notice is given to Tenant that the same is past due; (b) Tenant fails to observe or perform in a timely manner any other term, covenant or condition to be observed or performed by Tenant under this Lease within ⁷⁴ business days after written notice is given to Tenant of such failure; p rovided , however , that if more than ⁷⁵ business days is reasonably required to cure such failure, Tenant shall not be in default if Tenant commences such cure within such ⁷⁶ day period and diligently prosecutes such cure to completion; (c) Tenant or any guarantor of this Lease dies (if an individual), files a petition in bankruptcy, becomes insolvent, has taken against such party in any court, pursuant to state or federal statute, a petition in bankruptcy or insolvency or for reorganization or appointment of a receiver or trustee, petitions for or enters into an arrangement for the benefit of creditors or suffers this Lease to become subject to a writ of execution 6⁷⁷ ; (d) Tenant abandons the Premises; or (e) any guarantor of this Lease attempts to rescind or terminate its guaranty. ⁷⁸

16.2. Remedies . On any default by Tenant under this Lease, Landlord may at any time, without waiving or limiting any other right or remedy available to Landlord, (a) perform in Tenant’s stead any obligation that Tenant has failed to perform, and Landlord shall be reimbursed promptly for any cost incurred by Landlord with interest from the date of such expenditure until paid in full at the greater of the prime rate then charged by Zions First National Bank, Salt Lake City (or any other bank designated by Landlord), plus four percent (4%), or eighteen percent (18%)

74

ten (10)

 

75

ten (10)

 

76

ten (10)

 

77	, which petition or writ is not dismissed or set aside within ninety (90) days thereafter

 

78	For purposes of this Lease, Tenant shall be presumed or deemed to have abandoned the Premises in either of the following situations:

(y) Tenant has not notified Landlord that Tenant will be absent from the Premises, Tenant fails to pay Basic Monthly Rent, Tenant’s Share of Operating Expenses or any other sum due under this Lease within fifteen (15) days after the due date and there is no reasonable evidence other than the presence of Tenant’s personal property that Tenant is occupying the Premises; or

(z) Tenant has not notified Landlord that Tenant will be absent from the Premises, Tenant fails to pay Basic Monthly Rent, Tenant’s Share of Operating Expenses or any other sum due under this Lease when due, Tenant’s personal property has been removed from the Premises and there is no reasonable evidence that Tenant is occupying the Premises.

 

-25-

per annum (the “ Interest Rate ”), (b) terminate Tenant’s rights under this Lease by written notice, (c) reenter and take possession of the Premises by any lawful means (with or without terminating this Lease), or (d) pursue any other remedy allowed by law. Tenant shall pay to Landlord the cost of recovering possession of the Premises, all costs of reletting, including reasonable renovation, remodeling and alteration of the Premises, the amount of any commissions paid by Landlord in connection with such reletting, and all other costs and damages arising out of Tenant’s default, including attorneys’ fees and costs. Notwithstanding any termination or reentry, the liability of Tenant for the rent payable under this Lease shall not be extinguished for the balance of the Term, and Tenant agrees to compensate Landlord on demand for any deficiency, whether arising from (v) reletting the Premises at a lesser rent than applies under this Lease, (w) reletting the Premises for a term shorter than the remaining Term, (x) reletting less than all of the Premises, (y) any default in the payment of rent by any person to whom Landlord relets the Premises, or (z) any other cause whatsoever. No reentry to or taking possession of the Premises or other action by Landlord or its agents on or following the occurrence of any default by Tenant shall be construed as an election by Landlord to terminate this Lease or as an acceptance of any surrender of the Premises, unless Landlord provides Tenant written notice of such termination or acceptance.

16.3. Past Due Amounts . If Tenant fails to pay when due any amount required to be paid by Tenant under this Lease, such unpaid amount shall bear interest at the Interest Rate from the due date of such amount to the date of payment in full, with interest. In addition, Landlord may also charge a sum of five percent (5%) of such unpaid amount as a service fee ⁷⁹ . This late payment charge is intended to compensate Landlord for Landlord’s additional administrative costs resulting from Tenant’s failure to perform in a timely manner Tenant’s obligations under this Lease, and has been agreed on by Landlord and Tenant after negotiation as a reasonable estimate of the additional administrative costs which will be incurred by Landlord as a result of such failure. The actual cost in each instance is extremely difficult, if not impossible, to determine. This late payment charge shall constitute liquidated damages and shall be paid to Landlord together with such unpaid amount. The payment of this late payment charge shall mot constitute a waiver by Landlord of any default by Tenant under this Lease. All amounts due under this Lease are and shall be deemed to be rent or additional rent, and shall be paid without abatement, deduction, offset, prior notice or demand (unless expressly provided by the terms of this Lease). Landlord shall have the same remedies for a default in the payment of any amount due under this Lease as Landlord has for a default in the payment of Basic Monthly Rent.

16.4. Default by Landlord . Landlord shall not be in default under this Lease unless Landlord fails to perform an obligation required of Landlord under this Lease within thirty (30) days after written notice by Tenant to Landlord and the holder of any mortgage or deed of trust covering the Property whose name and address have been furnished to Tenant in writing, specifying the respects in which Landlord has failed to perform such obligation, and such holder fails to perform such obligation within a second thirty (30) day period commencing on the

79

if such amount is not paid within three (3) business days after the date when due. Notwithstanding the foregoing, such late payment charge shall not apply if such failure to pay is cured within three (3) business days after Landlord gives Tenant written or verbal notice of such failure; provided , that Landlord shall not be obligated to give such notice more than once in any calendar year.

 

-26-

expiration of such first thirty (30) day period. If the nature of such obligation is such that more than thirty (30) days are reasonably required for performance or cure, Landlord shall not be in default if Landlord or such holder commences performance within their respective thirty (30) day periods and after such commencement diligently prosecutes the same to completion. In no event may Tenant terminate this Lease or withhold the payment of rent or other charges provided for in this Lease as a result of Landlord’s default ⁸⁰ .

17. Expiration or Termination .

17.1. Surrender of Premises . On the expiration of the Term or sooner termination of this Lease, Tenant shall, at Tenant’s sole cost, (a) promptly and peaceably surrender the Premises to Landlord “broom clean,” in good order and condition, (b) repair any damage to the Property caused by or in connection with the removal of any property from the Premises by or at the direction of Tenant, (c) repair, patch and paint in a good and workmanlike manner all holes and other marks in the floors, walls and ceilings of the Premises to Landlord’s reasonable satisfaction, and (d) deliver all keys and access cards to the Premises to Landlord. Before surrendering the Premises, Tenant shall, at Tenant’s sole cost, remove Tenant’s personal property ⁸¹ and trade fixtures (including signage) only, and all other property shall, unless otherwise directed by Landlord, remain in the Premises as the property of Landlord without compensation; however, Tenant shall not remove any personal property or trade fixtures from the Premises without Landlord’s prior written consent if such removal will impair the structure of the Building or Tenant is in default under this Lease. If Tenant is in default under this Lease, Landlord shall have a lien on such personal property, trade fixtures and other property as set forth in Section 38-3-1, et seq ., of the Utah Code Ann. (or any replacement provision). Landlord may require Tenant to remove any personal property, trade fixtures, other property, alterations, additions and improvements made to the Premises by Tenant or by Landlord for Tenant including, without limitation, any computer lines, wiring, cabling and facilities and other similar improvements, and to restore the Premises to

80

, unless Tenant first obtains a judicial order expressly authorizing Tenant to do so pursuant to a judicial proceeding, notice of which has been given to Landlord by personal service as required by the Utah Rules of Civil Procedure for such proceeding. If after all of the required notices have been given and all of the time periods for cure have expired under the foregoing portion of this Paragraph, neither Landlord nor such holder has performed such obligation, then Tenant may, after at least five (5) business days’ prior written notice to Landlord, in compliance with the provisions of Paragraphs 9.2(a), (b) and (f)  (excluding any required Landlord approval) and subject to all other applicable provisions of this Lease (other than Paragraphs 9.2(c), (d), (e) and (g)) , perform such obligation in a first-class and workmanlike manner. Nevertheless, even in such event, Tenant still may not terminate this Lease or withhold the payment of rent or other charges provided for in this Lease as a result of Landlord’s default, unless Tenant first obtains a judicial order expressly authorizing Tenant to do so pursuant to a judicial proceeding, notice of which has been given to Landlord by personal service as required by the Utah Rules of Civil Procedure for such proceeding

 

81	(including furniture, equipment and appliances owned by Tenant, but excluding any items paid for by Landlord directly or through any tenant improvement allowance)

 

-27-

their condition as of the Commencement Date ⁸² . All personal property, trade fixtures and other property of Tenant not removed from the Premises on the abandonment of the Premises ⁸³ or on the expiration of the Term or sooner termination of this Lease for any cause shall conclusively be deemed to have been abandoned and may be appropriated, sold, stored, destroyed or otherwise disposed of by Landlord without notice to, and without any obligation to account to, Tenant or any other person. Tenant shall pay to Landlord all expenses incurred in connection with the disposition of such property in excess of any amount received by Landlord from such disposition. No surrender of the Premises shall be effected by Landlord’s acceptance of the keys or of the rent or by any other means without Landlord’s written acknowledgement of such acceptance as a surrender. Tenant shall not be released from Tenant’s obligations under this Lease in connection with surrender of the Premises ⁸⁴ until Landlord has inspected the Premises and delivered to Tenant a written release ⁸⁵ .

17.2. Holding Over . Tenant shall indemnify, defend and hold harmless Landlord from and against all claims, liabilities and expenses, including attorneys’ fees, resulting from delay by Tenant in surrendering the Premises in accordance with the provisions of this Lease. If Tenant remains in possession of the Premises after the expiration of the Term or sooner termination of this Lease with the prior written consent of Landlord, such occupancy, shall be a tenancy from month to month at a rental (and not as a penalty) in the amount of ⁸⁶

82

; provided , however , that notwithstanding the foregoing to the contrary, Tenant shall have no obligation to remove the improvements made by Landlord pursuant to the attached Exhibit C , and except as otherwise expressly required by this Lease (for example purposes only, in Paragraph 19.2 regarding signage), Tenant shall have no obligation to remove any other improvements made by Tenant with Landlord’s prior written consent unless Landlord’s consent to make such alterations was expressly conditioned on Tenant’s removing such alterations at the expiration of the Term or sooner termination of this Lease, except that, in all events, unless Landlord otherwise consents in writing, Tenant must remove all computer lines, wiring and cabling associated with Tenant’s personal property that are located above the ceiling tile in the Premises. If Landlord determines that such computer lines, wiring and cabling can be reused by the next subsequent tenant of the Premises, Landlord shall notify Tenant of such determination within fifteen (15) business days following receipt of written request from Tenant, which request may be made by Tenant at any time during the final ninety (90) days of the Term, and Tenant shall not be required to remove such computer lines, wiring and cabling. If Landlord fails to respond to Tenant within such fifteen (15) day period, Landlord shall be deemed to have withheld its consent to such computer lines, wiring and cabling remaining in the Premises, and Tenant shall remove such computer lines, wiring and cabling at the expiration of the Term or sooner termination of this Lease

 

83	(as such abandonment is described in Paragraph 16.1)

 

84	at the expiration of the Term or sooner termination of this Lease

 

85

; provided , that the failure of Landlord to object to such surrender or to deliver a written release within ninety (90) days after the expiration of the Term or sooner termination of this Lease shall be deemed a release and acceptance by Landlord, provided that Tenant is not in default under this Lease

 

86

(a) one hundred ten percent (110%) of the Basic Monthly Rent payable by Tenant under this Lease for the final calendar month of the initial period constituting the Term under this Lease for the first three (3) months of such holdover term, (b) one hundred twenty-five percent (125%) of the Basic Monthly Rent

 

-28-

plus all other charges payable under this Lease, and on all of the terms of this Lease applicable to a month-to-month tenancy.

17.3. Survival . The provisions of this Paragraph 17 shall survive the expiration of the Term or sooner termination of this Lease.

18. Estoppel Certificate; Financial Statements .

18.1. Estoppel Certificate . Tenant shall, within ten (10) days after Landlord’s request, execute and deliver to Landlord an estoppel certificate in favor of Landlord and such other persons as Landlord shall request setting forth the following: (a) a ratification of this Lease; (b) the Commencement Date and Expiration Date; (c) that this Lease is in full force and effect and has not been assigned, modified, supplemented or amended (except by such writing as shall be stated); (d) that all conditions under this Lease to be performed by Landlord have been satisfied or, in the alternative, those claimed by Tenant to be unsatisfied; (e) that no defenses or offsets exist against the enforcement of this Lease by Landlord or, in the alternative, those claimed by Tenant to exist; (f) the amount of advance rent, if any (or none if such is the case), paid by Tenant; (g) the date to which rent has been paid; (h) the amount of the Security Deposit; and (i) such other information ⁸⁷ as Landlord may ⁸⁸ request. Landlord’s mortgage lenders and purchasers shall be entitled to rely on any estoppel certificate executed by Tenant.

18.2. Financial Statements . ⁸⁹

payable by Tenant under this Lease for the final calendar month of the initial period constituting the Term under this Lease for the second three (3) months of such holdover term, and (c) one hundred fifty percent (150%) of the Basic Monthly Rent payable by Tenant under this Lease for the final calendar month of the initial period constituting the Term under this Lease for any period thereafter.

 

87	pertaining to this Lease

 

88	reasonably

 

89

Subject to the remaining provisions hereof, Tenant shall, within ten (10) days after Landlord’s written request, furnish to Landlord the most recently prepared consolidated audited annual financial statements and the most recently prepared unaudited consolidated quarterly financial statements for Tenant, prepared in accordance with generally accepted accounting principles consistently applied and certified by Tenant to be true and correct; provided , however , that (a) such quarterly statements may, in Tenant’s discretion, not have footnotes, so long as Tenant makes its representatives reasonably available to discuss any reasonable questions Landlord may raise regarding such statements, and (b) Landlord shall only use such financial statements for purposes of this Lease and Tenant’s obligations hereunder and shall only share such statements with prospective purchasers or mortgagees of the Building; provided , however , in no event shall Landlord disclose, nor shall Tenant be required to furnish, such financial statements or any part thereof to any competitor or potential competitor of Tenant or any of its affiliates. Notwithstanding the foregoing, prior to any required delivery or disclosure of such financial statements to Landlord or such permitted prospective purchasers or mortgagees hereunder, Landlord and such permitted prospective purchasers and mortgagees (as the case may be) shall execute and deliver to Tenant at Tenant’s request a

 

-29-

19. Parking; Signage .

19.1. Parking . Tenant shall have the non-exclusive right ⁹⁰ to use a number of parking stalls located ⁹¹ on the Property equal to Tenant’s Parking Stall Allocation only, and shall not use a number of parking stalls greater than Tenant’s Parking Stall Allocation. The use by Tenant of a number of parking stalls greater than Tenant’s Parking Stall Allocation shall be a default under this Lease following the giving of notice and the expiration of the applicable cure period described in Paragraph 16.1 . Automobiles of Tenant and Tenant’s Occupants shall be parked only within parking areas not otherwise reserved by Landlord or specifically designated for use by any other tenant or Occupants associated with any other tenant. Landlord may from time to time designate parking spaces for Tenant and make such other rules and regulations as Landlord reasonably determines to be necessary or appropriate. Landlord and Landlord’s representatives may, without any liability to Tenant or Tenant’s Occupants ⁹² , cause to be removed any automobile of Tenant or Tenant’s Occupants that may be parked wrongfully in a prohibited or reserved parking area, and Tenant agrees to indemnify, defend and hold harmless Landlord from and against all claims, liabilities and expenses, including attorneys’ fees, arising in connection with such removal. ⁹³

19.2. Signage . Tenant shall be entitled to Building standard signage on the Building interior directory. Tenant shall not place or suffer to be placed on any exterior door, wall or window of the Premises, on any part of the inside of the Premises which is visible from outside

confidentiality agreement pertaining to such financial statements in a form reasonably acceptable to Tenant. Except in the event of Tenant’s default which shall not have been cured to Landlord’s reasonable satisfaction, any and all such financial statements shall be returned to Tenant or destroyed by Landlord, at Tenant’s option, upon termination or expiration of this Lease.

 

90	without charge, other than as contemplated by Paragraph 5 of this Lease with respect to Operating Expenses,

 

91	in the parking structure located adjacent to the Building and

 

92	(and Tenant waives and releases all claims against Landlord and Landlord’s employees and agents with respect thereto, excepting only claims caused by the Indemnified Causes)

 

93

Notwithstanding the foregoing provisions contained in this Paragraph 19.1 to the contrary, a portion of the parking stalls comprising Tenant’s Parking Stall Allocation equal to one (1) parking stall per 5,000 rentable square feet of the Premises shall be reserved for the exclusive use of Tenant and Tenant’s Occupants, and shall initially be located in, and may subsequently be moved by Landlord to, an area of the parking structure located adjacent to the Building and on the Property mutually acceptable to Landlord and Tenant, acting reasonably and in good faith. Neither the access to the Building parking nor the amount of that parking shall be materially, adversely impacted by the development of the building commonly known as Millrock Park East or such building’s associated parking.

 

-30-

of the Premises or elsewhere on the Property, any sign, decoration, lettering, attachment, advertising matter or other thing of any kind, without first obtaining Landlord’s written approval. Landlord may, at Tenant’s cost, and without notice or liability to Tenant ⁹⁴ , enter the Premises and remove any item erected in violation of this Paragraph. Landlord may establish rules and regulations governing the size, type and design of all such items and Tenant shall abide by such rules and regulations. All approved signs or letterings on ⁹⁵ doors shall be printed, painted and affixed at the sole cost of Tenant by a person approved by Landlord, and shall comply with the requirements of the governmental authorities having jurisdiction over the Property. At Tenant’s sole cost, Tenant shall maintain all permitted signs and shall, on the expiration of the Term or sooner termination of this Lease, remove all such permitted signs and repair any damage caused by such removal.

21. Rules . Tenant and Tenant’s Occupants shall faithfully observe and comply with all of the rules set forth on the attached Exhibit A , and landlord may from time to time amend, modify or make additions to or deletions from such rules ⁹⁶ , Such amendments, modifications, additions and deletions shall be effective on notice to Tenant. On any breach of any of such rules, Landlord may exercise any or all of the remedies provided in this Lease on a default by Tenant under this Lease and may, in addition, exercise any remedies available at law or in equity including the right to enjoin any breach of such rules. ⁹⁷ Landlord shall not be responsible to Tenant for the failure of any other tenant or person to observe any such rules.

22. General Provisions .

94	(and Tenant waives and releases all claims against Landlord and Landlord’s employees and agents with respect thereto, excepting only claims caused by the Indemnified Causes)

 

95

exterior

 

96	; provided , that no such amendments, modifications, additions or deletions shall adversely affect Tenant’s use of, or access to and from, the Premises, or increase any of Tenant’s obligations under this Lease, unless Landlord and Tenant otherwise agree

 

97	Although Landlord shall exercise commercially reasonable efforts to enforce such rules in a nondiscriminatory manner against all tenants of the Building,

 

-31-

22.1. No Partnership . Landlord does not by this Lease, in any way or for any purpose, become a partner or joint venturer of Tenant in the conduct of Tenant’s business or otherwise.

22.2. Force Majeure . If either Landlord or Tenant is delayed or hindered in or prevented from the performance of any act required under this Lease by reason of acts of God, strikes, lockouts, other labor troubles, inability to procure labor or materials, fire, accident, failure of power, restrictive governmental laws, ordinances, regulations or requirements of general applicability, riots, civil commotion, insurrection, war or other reason not the fault of the party delayed, hindered or prevented and beyond the control of such party (financial inability excepted), performance of the action in question shall be excused for the period of delay and the period for the performance of such act shall be extended for a period equivalent to the period of such delay. The provisions of this Paragraph shall not, however, operate to excuse Tenant from the prompt payment of rent or any other amounts required to be paid under this Lease ⁹⁸ .

22.3. Notices . Any notice or demand to be given by Landlord or Tenant to the other shall be given in writing by personal service, telegram, express mail, Federal Express, DHL or any other similar form of courier or delivery service, or mailing in the United States mail, postage prepaid, certified, return receipt requested and addressed to such party as follows:

If to Landlord :

Millrock Park North, LLC

P.O. Box 71405

Salt Lake City, Utah 84171

Attention: Steven Peterson

with a required copy to :

Victor A. Taylor, Esq.

Parr, Waddoups, Brown, Gee & Loveless

185 South State Street, Suite 1300

Salt Lake City, Utah 84111

If to Tenant :

CHG Healthcare Services, Inc.

4021 South 700 East, Suite 300

Salt Lake City, Utah 84107

Attention: James Marshall

98	, except as otherwise expressly provided in Paragraphs 8.2, 13 and 14 of this Lease

 

-32-

with a required copy to :

Guy P. Kroesche, Esq.

Stoel Rives LLP

201 South Main Street, Suite 1100

Salt Lake City, Utah 84111

Either Landlord or Tenant may change the address at which such party desires to receive notice on written notice of such change to the other party. Any such notice shall be deemed to have been given, and shall be effective, on delivery to the notice address then applicable for the party to which the notice is directed; provided , however , that refusal to accept delivery of a notice or the inability to deliver a notice because of an address change which was not properly communicated shall not defeat or delay the giving of a notice.

22.4. Severability . If any provision of this Lease or the application of any provision of this Lease to any person or circumstance shall to any extent be invalid, the remainder of this Lease or the application of such provision to persons or circumstances other than those as to which such provision is held invalid shall not be affected by such invalidity. Each provision of this Lease shall be valid and enforceable to the fullest extent permitted by law.

22.5. Brokerage Commissions . ⁹⁹

22.6. Use of Pronouns . The use of the neuter singular pronoun to refer to Landlord or Tenant shall be deemed a proper reference even though Landlord or Tenant may be an individual, partnership, association, limited liability company, corporation or a group of two or more individuals, partnerships, associations, limited liability companies or corporations. The necessary grammatical changes required to make the provisions of this Lease apply in the plural sense where more than one Landlord or Tenant exists and to individuals, partnerships, associations, limited liability companies, corporations, males or females, shall in all instances be assumed as though in each case fully expressed.

22.7. Successors . Except as otherwise provided in this Lease, all provisions contained in this Lease shall be binding on and shall inure to the benefit of Landlord and Tenant and their respective heirs, personal representatives, successors and assigns. On any sale or assignment (except for purposes of security or collateral) by Landlord of the Premises or this Lease, Landlord shall, on and after such sale or assignment, be relieved entirely of all of

99

Except as agreed in writing by Landlord or Tenant, Landlord and Tenant each represent and warrant that no claims exist for brokerage commissions or finder’s fees in connection with this Lease and agree to indemnify, defend and hold harmless the other from and against all claims, liabilities and expenses, including reasonable attorneys’ fees, arising from any such brokerage commissions or finder’s fees related to any agreement made by the indemnifying party.

 

-33-

Landlord’s obligations under this Lease ¹⁰⁰ and such obligations shall, as of the time of such sale or assignment, automatically pass to Landlord’s successor in interest.

22.8. Recourse by Tenant . Anything in this Lease to the contrary notwithstanding, Tenant shall look solely to the equity of Landlord in the Premises ¹⁰¹ , subject to the prior rights of the holder of any mortgage or deed of trust, for the collection of any judgment (or other judicial process) requiring the payment of money by Landlord on any default or breach by Landlord with respect to any of the terms, covenants and conditions of this Lease to be observed or performed by Landlord, and no other asset of Landlord or any other person shall be subject to levy, execution or other procedure for the satisfaction of Tenant’s remedies.

22.9. Quiet Enjoyment . On Tenant paying the rent payable under this Lease and observing and performing all of the terms, covenants and conditions on Tenant’s part to be observed and performed under this Lease, Tenant shall have quiet enjoyment of the Premises for the Term without interference from Landlord, or anyone claiming by, through or under Landlord, subject to all of the provisions of this Lease.

22.10. Waiver . No failure by any party to insist on the strict performance of any covenant, duty or condition of this Lease or to exercise any right or remedy consequent on a breach of this Lease shall constitute a waiver of any such breach or of such or any other covenant, duty or condition. Any party may, by notice delivered in the manner provided in this Lease, but shall be under no obligation to, waive any of its rights or any conditions to its obligations under this Lease, or any covenant or duty of any other party. No waiver shall affect or alter the remainder of this Lease but each other covenant, duty and condition of this Lease shall continue in full force and effect with respect to any other then existing or subsequently occurring breach.

22.11. Rights and Remedies . The rights and remedies of Landlord and Tenant shall not be mutually exclusive and the exercise of one or more of the provisions of this Lease shall not preclude the exercise of any other provisions. The parties confirm that damages at law may be an inadequate remedy for a breach or threatened breach by any party of any of the provisions of this Lease, The parties’ respective rights and obligations under this Lease shall be enforceable by specific performance, injunction or any other equitable remedy.

22.12. Authorization . Each individual executing this Lease does represent and warrant to each other so signing (and each other entity for which another person may be signing) that such individual has been duly authorized to deliver this Lease in the capacity and for the entity set forth where such individual signs.

22.13. Attorneys’ Fees . If any action is brought to recover any rent or other amount under this Lease because of any default under this Lease, to enforce or interpret any of the

100	thereafter accruing

 

101	Property and the rents, issues and profits, the proceeds of any insurance carried by Landlord, and the awards of any condemnation proceedings, with respect to the Property

 

-34-

provisions of this Lease, or for recovery of possession of the Premises, the party prevailing in such action shall be entitled to recover from the other party reasonable attorneys’ fees (including those incurred in connection with any appeal), the amount of which shall be fixed by the court and made a part of any judgment rendered. Tenant shall be responsible for all expenses, including, without limitation, attorneys’ fees, incurred by Landlord in any case or proceeding involving Tenant or any assignee or subtenant of Tenant under or related to any bankruptcy or insolvency law. The foregoing provisions of this Paragraph 22.13 shall survive the expiration of the Term or sooner termination of this Lease.

22.14. Merger . The surrender of this Lease by Tenant, the cancellation of this Lease by agreement of Landlord and Tenant or the termination of this Lease on account of Tenant’s default shall not work a merger, and shall, at Landlord’s option, either terminate any subleases of part or all of the Premises or operate as an assignment to Landlord of any of those subleases. Landlord’s option under this Paragraph 22.14 may be exercised by notice to Tenant and all known subtenants in the Premises.

22.15. Miscellaneous . The captions to the Paragraphs of this Lease are for convenience of reference only and shall not be deemed relevant in resolving questions of construction or interpretation under this Lease. Exhibits referred to in this Lease and any addendums, riders and schedules attached to this Lease shall be deemed to be incorporated in this Lease as though a part of this Lease. Tenant shall not record this Lease or a memorandum or notice of this Lease. This Lease and the exhibits, riders and addenda, if any, attached, constitute the entire agreement between the parties. Any guaranty delivered in connection with this Lease is an integral part of this Lease and constitutes consideration given to Landlord to enter into this Lease. No amendment to this Lease shall be binding on Landlord or Tenant unless reduced to writing and signed by both parties. Unless otherwise set forth in this Lease, all references to Paragraphs are to Paragraphs in this Lease. This Lease shall be governed by and construed and interpreted in accordance with the laws of the state of Utah, Venue on any action arising out of this Lease shall be proper only in the District Court of Salt Lake County, state of Utah. LANDLORD AND TENANT WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THEM AGAINST THE OTHER ON ALL MATTERS ARISING OUT OF THIS LEASE OR THE USE AND OCCUPANCY OF THE PREMISES. Time is of the essence of each provision of this Lease. The submission of this Lease to Tenant is not an offer to lease the Premises or an agreement by Landlord to reserve the Premises for Tenant. Landlord shall not be bound to Tenant until Tenant has duly executed and delivered duplicate original copies of this Lease to Landlord, and Landlord has duly executed and delivered one of those duplicate original copies to Tenant.

 

-35-

LANDLORD AND TENANT have executed this Lease on the respective dates set forth below, to be effective as of the date first set forth above.