SUB-SUBLEASE
THIS SUB-SUBLEASE is made and entered into this 31 "
day of May, 200 1, by and between Xxxxxxx Capital Partners
of Arizona, LLC, an Arizona limited liability company
("JCP") and Vital Living, Inc., a Nevada corporation
("VITAL").
1. BASIC LEASE PROVISIONS.
A. Property Address: 0000 Xxxxx 00xx Xxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxx 00000, consisting of approximately 4,722
rentable square feet ("Premises").
B. VITAL's Address: 0000 X. 00xx Xxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxx 00000.
C. JCP's Address (for notices): Attention: Xxxx Xxxxx,
0000 X. 00xx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000;
with a copy to Xxxxxxxx Xxxxx, Xxxxxxx Capital Group of
Colorado, 000 00xx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx,
00000-0000
D. Prime Landlord: Northbank Properties Limited
Partnership, a Nevada limited partnership
E. Prime Landlord's Address (for notices): 0000 Xxxx
Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000
F. Identification of Prime Lease and all amendments
thereto: Office Lease Agreement dated August 17, 1998
between Prime Landlord and Landlord
G. Sub-Sublease Term: From the Commencement Date until
the Expiration Date, unless this Sub-Sublease is earlier
terminated pursuant to the terms hereof
H. Commencement Date: June 17, 2002
I. Expiration Date: October 30, 2003
J. Base Rent:
6/17/2002 - 10/30/2003 $8,460.25 per month,
plus rent tax and Additional Rent per the Prime Lease.
K. Payee of Rent: JCP
L. Address for Payment of Rent: Attention: Xxxxxxxx
Xxxxx, Xxxxxxx Capital Group of Colorado, 000 00xx
Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx, 00000-0000
M. Sub-Sublease Share: 69.904 % (approximate)
N. Description of Premises: Suite 105 as more
particularly described on Exhibit A attached hereto
O. Security Deposit: $8,460.25
P. VITAL's Use (set forth with specificity): General
offices and for no other use
Q. JCP's Broker: The Staubach Company
VITAL's Broker: Xxxxxx Xxxxxx
R. Landlord: Prudential Multifamily Mortgage, Inc. (f/k/a
WMF Washington Mortgage Corp.) a Delaware corporation
S. Landlord's Address: 0000 Xxxxxxxxxx Xx., Xxxxx 000,
XxXxxx, Xxxxxxxx 00000
T. Identification of Sublease and all amendments thereto:
Sublease agreement dated December 29th, 2000 between
Landlord and JCP.
2. PRIME LEASE and SUBLEASE. Landlord is the tenant under
a Prime Lease (the "Prime Lease") with the Prime Landlord
identified in Section 1(D), bearing the date specified in
Section 1(F). JCP is the tenant under a Sublease (the
"Sublease") with the Landlord identified in Section 1(R),
bearing the date specified in Section 1(T). JCP represents
and warrants to VITAL that (a) JCP has delivered to VITAL a
full and complete copy of the Prime Lease and all other
agreements between Prime Landlord and Landlord and a copy of
the Sublease and all other agreements between Landlord and
JCP relating to the leasing, use, and occupancy of the
Premises and (b) the Prime Lease and Sublease are, as of the
date hereof, in full force and effect.
3. SUB-SUBLEASE. JCP, for and in consideration of the
rents herein reserved and of the covenants and agreements
herein contained on the part of the VITAL to be performed,
hereby subleases to VITAL, and VITAL accepts from JCP the
Premises, being that certain space described in Section 1(N)
and located in the building (the "Building"), situated on
and a part of the property (the "Property") located at the
address set forth in Section 1(A).
4. TERM. The term of this Lease (hereinafter "Term") shall
commence on the date (hereinafter "Commencement Date") set
forth in Section 1(H). The Term shall expire on the date
("Expiration Date") specified in Section 1(I), unless sooner
terminated as otherwise provided elsewhere in this
Sub-Sublease. Notwithstanding the foregoing, if the Prime
Lease is terminated for any reason on a date prior to the
Expiration Date, this Sub-Sublease will also terminate as of
such date of termination without any liability on the part
of JCP to VITAL except that if such termination is caused by
JCP's default under the Sublease, JCP shall indemnify VITAL
for all costs, damages, and expenses caused by the early
termination.
5. POSSESSION. JCP agrees to deliver possession of the
Premises on the date specified in Section 1(H). The Premises
shall be delivered to VITAL in "As is" condition.
6. VITAL'S USE. The Premises shall be used and occupied
only for VITAL's use set forth in Section 1(P).
7. RENT. Beginning on the Commencement Date, VITAL agrees
to pay the Base Rent set forth in Section 1(J) to the Payee
specified in Section 1(K), at the address specified in
Section 1(L), or to such other payee or at such other
address as may be designated by notice in writing from JCP
to VITAL, without prior demand therefore and without any
deduction whatsoever. Base Rent shall be paid the first day
of each month of the Term except that the first installment
of Base Rent shall be paid by VITAL to JCP upon execution of
this Sub-Sublease by VITAL. Base Rent shall be pro-rated for
partial months at the beginning and end of the Term. All
charges, costs and sums required to be paid by VITAL to JCP
under this Sub-Sublease in addition to Base Rent shall be
deemed "Additional Rent," and Base Rent and Additional Rent
shall hereinafter collectively be referred to as "Rent."
VITAL's covenant to pay Rent shall be independent of every
other covenant in this Lease. If Rent is not paid when due,
VITAL shall pay, relative to the delinquent payment, an
amount equal to the sum which would be payable by JCP to
Landlord for an equivalent default under the Sublease.
8. ADDITIONAL RENT.
A. If and to the extent that JCP is obligated to pay
additional rent under the Sublease, whether such additional
rent is to reimburse Landlord or Prime Landlord for taxes,
operating expenses, common area maintenance charges or other
expenses incurred by the Prime Landlord in connection with
the Property, VITAL shall pay to JCP, the percentage of such
additional rent (to the extent such additional rent is
attributable to events occurring during the term of this
Sub-Sublease) which is set forth in Section 1(M) as the
Sub-Sublease Share. Such payment shall be due from VITAL to
JCP no fewer than five (5) days prior to the date upon which
JCP's payment of such additional rent is due to the
Landlord. JCP shall promptly supply VITAL with a copy of any
xxxx for additional rent received from Prime Landlord or
Landlord (which xxxx shall be accompanied by other material
furnished to JCP in connection therewith).
B. The Sub-Sublease Share provided for in Section
1(M) is calculated by dividing the rentable area of the
Premises by the rentable area of the premises leased by
Prime Landlord to Landlord and subleased by Landlord to JCP.
In the event the rentable area of the Premises or the area
of the Premises leased pursuant to the Prime Lease shall be
changed during the Term, then the Sub-Sublease Share shall
be recalculated.
9. VITAL'S OBLIGATIONS. VITAL shall be responsible for,
and shall pay the following:
A. All utility consumption costs, including without
limitation, electric and other charges incurred in
connection with lighting, and providing electrical power to
the Premises. VITAL shall hold JCP harmless from all costs
or expenses JCP may incur from VITAL's failure to pay
utility bills or to perform any of its obligations with
respect to the purchase of utilities.
B. All maintenance, repairs and replacements as to
the Premises and the Building and their equipment and
systems to the extent JCP is obligated to perform the same
under the Sublease.
10. QUIET ENJOYMENT. JCP represents that is it has full
power and authority to enter into this Sub-Sublease, subject
to the consent of the Prime Landlord. So long as VITAL is
not in default in the performance of its covenants and
agreements in this Sub-Sublease, VITAL's quiet and peaceable
enjoyment of the Premises shall not be disturbed or
interfered with by JCP, or by any person claiming by,
through, or under JCP, subject, however, to the provisions
of this Sub-Sublease, the Sublease, the Prime Lease and to
the matters which the Prime Lease is subject and
subordinate.
11. LIABILITY. During the term of this Sub-Sublease, VITAL
agrees that JCP will not at any time or to any extent
whatsoever be liable, responsible, or accountable for any
loss, injury, death, or damage to persons or property from
any cause or causes whatsoever, except that caused by the
negligence or misconduct of JCP or its agents or employees,
which at any time may be suffered or sustained by VITAL, its
agents or employees or by any person who at any time may be
using, occupying, visiting, or residing on the Premises, and
VITAL agrees to indemnify and save JCP harmless from any and
all claims, liabilities, losses, damages, costs, and
expenses arising out of any such loss, injury, death, or
damage, except that caused by the negligence or misconduct
of JCP or its agents or employees, however occurring.
12. VITAL'S INSURANCE. VITAL shall procure and maintain, at
its own cost and expense, such liability insurance as is
required to be carried by JCP under the Sublease, naming
JCP, Landlord, and Prime Landlord as additional insureds, in
the manner required therein, and such property insurance as
is required to be carried by JCP under the Prime Lease to
the extent such property insurance pertains to the Premises.
If the Prime Lease requires JCP to insure leasehold
improvements or alterations, then VITAL shall insure such
leasehold improvements which are located in the Premises, as
well as alterations in the Premises made by VITAL. VITAL
shall furnish to JCP a certificate of VITAL's insurance
required on or before the Commencement Date. Each party
hereby waives claims against the other for property damage
provided such waiver shall not invalidate the waiving
party's property insurance; each party shall attempt to
obtain from its insurance carrier a waiver of its right of
subrogation. VITAL hereby waives claims against Landlord,
Prime Landlord, and JCP for property damage to the Premises
or its contents if and to the extent that JCP waives such
claims against Prime Landlord under the Prime Lease. VITAL
agrees to obtain, for the benefit of Prime Landlord and JCP,
such waivers of subrogation rights from its insurer as are
required of JCP under the Sublease.
13. ASSIGNMENT OR SUBLETTING.
A. VITAL shall not (i) assign, convey or mortgage
this Sub-Sublease or any interest under it; (ii) allow any
transfer thereof or any lien upon V1TAL's interest by
operation of law; (iii) further sublet the Premises or any
part thereof; or (iv) permit the occupancy of the Premises
or any part thereof by anyone other than VITAL. JCP's
consent to an assignment of this Sub-Sublease or a further
sub-sublease of the Premises shall not be unreasonably
withhold, VITAL acknowledging that JCP's consent does not
imply the consent of the Prime Landlord to such assignment
or subletting, which also must be obtained. If JCP consents
thereto, JCP shall use reasonable efforts to obtain the
consent of Prime Landlord. Any cost of obtaining Prime
Landlord's consent shall be borne by VITAL.
B. No permitted assignment shall be effective and no
permitted sub-sublease shall commence unless and until any
default by VITAL hereunder shall have been cured. No
permitted assignment or subletting shall relieve VITAL from
VITAL's obligations and agreements hereunder and VITAL shall
continue to be liable as a principal and not as a guarantor
or surety to the same extent as though no assignment or
subletting had been made.
14. RULES. VITAL agrees to comply with all rules and
regulations that Prime Landlord has made or may hereafter
from time to time make for the Building. JCP shall not be
liable in any way for damage caused by the non-observance by
any of the other tenants of such similar covenants in their
leases or of such rules and regulations.
15. REPAIRS AND COMPLIANCE. VITAL shall promptly pay for
the repairs set forth in Section 9(B) hereof and VITAL
shall, at VITAL's own expense, comply with all laws and
ordinances, and all orders, rules and regulations of all
governmental authorities and of all insurance bodies and
their fire prevention engineers at any time in force,
applicable to the Premises or to VITAL's particular use or
manner of use thereof, except that VITAL shall not hereby be
under any obligation to comply with any law, ordinance, rule
or regulation requiring any structural alteration of, or in
connection with, the Premises, unless such alteration is
required by reason of VITAL's particular use or manner of
use of the Premises, or a condition which has been created
by or at the sufferance of VITAL, or is required by reason
of a breach of any of VITAL's covenants and agreements
hereunder. As used herein "structure" or "structural" shall
have the definition ascribed to it in the Prime Lease or if
no specific definition is given therein "structure" or
"structural" shall mean that portion of the Building which
is integral to the integrity of the Building as an existing
enclosed unit and shall, in any event, include footings,
foundation, outside walls, skeleton, bearing columns and
interior bearing walls, floor slabs, roof and roofing
system.
16. FIRE OR CASUALTY OR EMINENT DOMAIN. In the event JCP is
entitled, under the Sublease, to a rent abatement as a
result of a fire or other casualty or as a result of a
taking under the power of eminent domain, then VITAL shall
be entitled to the Sub-Sublease Share of such rent abatement
unless the effect on the Premises of such fire or other
casualty or such taking shall be substantially
disproportionate to the amount of the abatement, in which
event the parties shall equitably adjust the abatement as
between themselves, based on the relative impact of the fire
or other casualty, or the taking, as the case may be. If the
Sublease imposes on JCP the obligation to repair or restore
leasehold improvements or alterations, VITAL shall be
responsible for repair or restoration of leasehold
improvements or alterations in the Premises. VITAL shall
make any insurance proceeds resulting from the loss which
JCP is obligated to repair or restore available to JCP and
shall permit JCP to enter the Premises to perform the same,
subject to such conditions as VITAL may reasonably impose.
17. ALTERATIONS. VITAL shall not make any alterations in or
additions to the Premises ("Alterations") if to do so would
constitute a default under the Prime Lease. If VITAL's
proposed Alterations would not constitute a default under
the Sublease or the Prime Lease, JCP's consent thereto shall
nonetheless be required, but JCP's consent to such
Alterations shall not be unreasonably withheld, and if JCP
consents thereto, JCP shall use reasonable efforts to obtain
the consent of Landlord and Prime Landlord, if such consent
is required under the Prime Lease. If Alterations by VITAL
are permitted or consented to as aforesaid, VITAL shall
comply with all of the covenants of JCP contained in the
Sublease pertaining to the performance of such Alterations.
In addition, VITAL shall indemnify, defend and hold harmless
JCP against liability, loss, cost, damage, liens and expense
imposed on JCP arising out of the performance of Alterations
by VITAL.
18. SURRENDER. Upon the expiration of this Sub-Sublease, or
upon the termination of the Sub-Sublease or of VITAL's right
to possession of the Premises, VITAL will at once surrender
and deliver up the Premises, together with all improvements
thereon, to JCP in good condition and repair, reasonable
wear and tear excepted; conditions existing because of
VITAL's failure to perform maintenance, repairs or
replacements as required of VITAL under this Sub-Sublease
shall not be deemed "reasonable wear and tear." Said
improvements shall include all plumbing, lighting,
electrical, heating, cooling and ventilating fixtures and
equipment and other articles of personal property used in
the operation of the Premises (as distinguished from
operations incident to the business of VITAL). VITAL shall
surrender to JCP all keys to the Premises and make known to
JCP the combination of all combination locks which VITAL is
permitted to leave on the Premises. All Alterations in or
upon the Premises made by VITAL shall become a part of and
shall remain upon the Promises upon such termination without
compensation, allowance or credit to VITAL; provided,
however, that JCP shall have the right to require VITAL to
remove any Alterations made by VITAL, or portion thereof.
Said right shall be exercisable by JCP's giving written
notice thereof to VITAL on or before thirty (30) days prior
to such expiration or on or before twenty (20) days after
such termination. VITAL shall also remove any Alterations
made by VITAL, or portion thereof, which Landlord may
require JCP to remove, pursuant to the terms of the
Sublease. In any such event, VITAL shall restore the
Premises to their condition prior to the making of such
Alteration, repairing any damage occasioned by such removal
or restoration. If JCP, Landlord or Prime Landlord requires
removal of any Alteration made by VITAL, or a portion
thereof, and VITAL does not make such removal in accordance
with this Section, JCP may remove the same (and repair any
damage occasioned thereby), and dispose thereof, or at its
election, deliver the same to any other place of business of
VITAL, or warehouse the same. VITAL shall pay the
reasonable, actual costs of such removal, repair, delivery,
and warehousing on demand. As between JCP and VITAL, VITAL
shall not be required to remove any Alterations performed by
JCP prior to the Commencement Date or to restore the
Premises to their condition prior to the making of such
Alterations. If, however, the term of the Sub-Sublease
expires at or about the date of the expiration of the Prime
Lease and Sublease, and if JCP is required under or pursuant
to the terms of the Sublease to remove any Alterations
performed prior to the Commencement Date, VITAL shall permit
JCP to enter the Premises for a reasonable period of time
prior to the expiration of the Sub-Sublease, subject to such
conditions as VITAL may reasonably impose, for the purpose
of removing its Alterations and restoring the Premises as
required.
19. REMOVAL OF VITAL'S PROPERTY. Upon the expiration of
this Sub-Sublease, VITAL shall remove VITAL's articles of
personal property incident to VITAL's business ("Trade
Fixtures"); provided, however, that VITAL shall repair any
injury or damage to the Premises which may result from such
removal, and shall restore the Premises to the same
condition as prior to the installation thereof. If VITAL
does not remove VITAL's Trade Fixtures from the Premises
prior to the expiration or earlier termination of the Term,
JCP may, at its option, remove the same (and repair any
damage occasioned thereby and restore the Premises as
aforesaid) and dispose thereof or deliver the same to any
other place of business of VITAL, or warehouse the same, and
VITAL shall pay the reasonable, actual cost of such removal,
repair, restoration, delivery or warehousing to JCP on
demand, or JCP may treat said Trade Fixtures as having been
conveyed to JCP with this Lease as a Xxxx of Sale, without
further payment or credit by JCP to VITAL.
20. HOLDING OVER. VITAL shall have no right to occupy the
Premises or any portion thereof after the expiration of this
Sub-Sublease or after termination of this Sub-Sublease or of
VITAL's right to possession in consequence of an Event of
Default hereunder. In the event VITAL or any party claiming
by, through or under VITAL holds over, JCP may exercise any
and all remedies available to it at law or in equity to
recover possession of the Premises, and to recover damages,
including without limitation, damages payable by JCP to
Landlord by reason of such holdover. For each and every
month or partial month that VITAL or any party claiming by,
through or under VITAL remains in occupancy of all or any
portion of the Premises after the expiration of this
Sub-Sublease or after termination of this Sub-Sublease or
VITAL's right to possession, VITAL shall pay, as minimum
damages and not as a penalty, in addition to, and not in
lieu of, any damages owed by VITAL to JCP as reimbursement
for damages payable by JCP to Prime Landlord, monthly rental
at a rate equal to double the rate of Base Rent and
Additional Rent payable by VITAL hereunder immediately prior
to the expiration or other termination of this Sub-Sublease
or of VITAL's right to possession. The acceptance by JCP of
any lesser sum shall be construed as payment on account and
not in satisfaction of damages for such holding over.
21. ENCUMBERING TITLE. VITAL shall not do any act which
shall in any way encumber the title of Prime Landlord in and
to the Building or the Property, nor shall the interest or
estate of Prime Landlord, Landlord, or JCP be in any way
subject to any claim by way of lien or encumbrance, whether
by operation of law by virtue of any express or implied
contract by VITAL, or by reason of any other act or omission
of VITAL. Any claim to, or lien upon, the Premises, the
Building or the Property arising from any act or omission of
VITAL shall accrue only against the sub-subleasehold estate
of VITAL and shall be subject and subordinate to the
paramount title and rights of Prime Landlord in and to the
Building and the Property and the interest of JCP in the
premises leased pursuant to the Prime Lease. Without
limiting the generality of the foregoing, VITAL shall not
permit the Premises, the Building or the Property to become
subject to any mechanics', laborers' or materialmen's lien
on account of labor or material furnished to VITAL or
claimed to have been furnished to VITAL in connection with
work of any character performed or claimed to have been
performed on the Premises by, or at direction or sufferance
of, VITAL, provided, however, that if so permitted under the
Prime Lease, VITAL shall have the right to contest in good
faith and with reasonable diligence, the validity of any
such lien or claimed lien if -VITAL ` shall give to Prime
Landlord and JCP such security as may be deemed satisfactory
to them to assure payment thereof and to prevent any sale,
foreclosure, or forfeiture of the Premises, the Building or
the Property by reason of nonpayment thereof, provided
further, however, that on final determination of the lien or
claim of lien, VITAL shall immediately pay any judgment
rendered, with all proper costs and charges, and shall have
the lien released and any judgment satisfied.
22. INDEMNITY. VITAL agrees to indemnify JCP and hold JCP
harmless from all losses, damages, liabilities and expenses
which JCP may incur, or for which JCP may be liable to
Landlord or Prime Landlord, arising from the acts or
omissions of VITAL which are the subject matter of any
indemnity or hold harmless of JCP to Landlord under the
Sublease. Further, JCP agrees to indemnify VITAL and hold
VITAL harmless from all losses, damages, liabilities and
expenses which VITAL may incur arising from the acts or
omissions of JCP.
23. JCP'S RESERVED RIGHTS. JCP reserves the right, on
reasonable prior notice, to inspect the Premises, or to
exhibit the Premises to persons having a legitimate interest
at any time during the Sub-Sublease term.
24. DEFAULTS. VITAL further agrees that any one or more of
the following events shall be considered Events of Default
as said term is used herein, that is to say, if:
A. VITAL shall be adjudged an involuntary bankrupt,
or a decree or order approving, as properly filed, a
petition or answer filed against VITAL asking reorganization
of VITAL under the Federal bankruptcy laws as now or
hereafter amended, or under the laws of any State, shall be
entered, and any such decree or judgment or order shall not
have been vacated or stayed or set aside within sixty (60)
days from the date of the entry or granting thereof; or
B. VITAL shall file, or admit the jurisdiction of the
court and the material allegations contained in, any
petition in bankruptcy, or any petition pursuant or
purporting to be pursuant to the Federal bankruptcy laws now
or hereafter amended, or VITAL shall institute any
proceedings for relief of VITAL under any bankruptcy or
insolvency laws or any laws relating to the relief of
debtors, readjustment of indebtedness, reorganization,
arrangements, composition or extension; or
C. VITAL shall make any assignment for the benefit of
creditors or shall apply for or consent to the appointment
of a receiver for VITAL or any of the property of VITAL; or
D. VITAL shall admit in writing its inability to pay
its debts as they become due; or
E. The Premises are levied on by any revenue officer
or similar officer; or
F. A decree or order appointing a receiver of the
property of VITAL shall be made and such decree or order
shall not have been vacated, stayed or set aside within
sixty (60) days from the date of entry or granting thereof,
or
G. VITAL shall abandon the Premises (meaning failure
to operate in the Premises for a period of ten consecutive
days) during the Term hereof, or
H. VITAL shall default in any payment of Rent
required to be made by VITAL hereunder when due as herein
provided and such default shall continue for five (5) days
after notice thereof in writing to VITAL; or
I. VITAL shall default in securing insurance or in
providing evidence of insurance as set forth in Section 11
of this Sub-Sublease or shall default with respect to lien
claims as set forth in Section 21 of this Sub-Sublease and
either such default shall continue for five (5) days after
notice thereof in writing to VITAL; or
J. VITAL shall, by its act of omission to act, cause
a default under the Sublease or Prime Lease and such default
shall not be cured within the time, if any, permitted for
such cure under the Sublease or Prime Lease; or
K. VITAL shall default in any of the other covenants
and agreements herein contained to be kept, observed and
performed by VITAL, and such default shall continue for
thirty (30) days after notice thereof in writing to VITAL.
25. REMEDIES. Upon the occurrence of any one or more Events
of Default, JCP may exercise any remedy against VITAL which
Prime Landlord may exercise for default by JCP under the
Sublease.
26. SECURITY DEPOSIT. To secure the faithful performance by
VITAL of all the covenant, conditions and agreements in this
Sub-Sublease set forth and contained on the part of VITAL to
be fulfilled, kept, observed and performed including, but
not by way of limitation, such covenants and agreements in
this Sub-Sublease which become applicable upon the
termination of the same by re-entry or otherwise, VITAL has
deposited with JCP the Security Deposit as specified in
Section 1(O) on the understanding that: (a) the Security
Deposit or any portion thereof not previously applied, or
from time to time, such one or more portions thereof, may be
applied to the curing of any default that may then exist,
without prejudice to any other remedy or remedies which JCP
may have on account thereof, and upon such application VITAL
shall pay JCP on demand the amount so applied which shall be
added to the Security Deposit so the same may be restored to
its original amount; (b) should the Sublease be assigned by
JCP, the Security Deposit or any portion thereof not
previously applied may be turned over to JCP's assignee and
if the same be turned over as aforesaid; VITAL hereby
releases JCP from any and all liability with respect to the
Security Deposit and/or its application or return; (c) if
permitted by law, JCP or its successor shall not be
obligated to hold the Security Deposit as a separate fund,
but on the contrary may commingle the same with its other
funds; (d) if VITAL shall faithfully fulfill, keep, perform
and observe all of the covenants, conditions and agreements
in this Sub-Sublease set forth and contained on the part of
VITAL to be fulfilled, kept, performed and observed, the sum
deposited or the portion thereof not previously applied,
shall be returned to VITAL without interest no later than
thirty (30) days after the expiration of the Term of the
Sub-Sublease or any renewal or extension thereof, provided
VITAL has vacated the Premises and surrendered possession
thereof to JCP at the expiration of the Term or any
extension or renewal thereof as provided herein; (e) in the
event that JCP terminates this Sub-Sublease or VITAL's right
to possession by reason of an Event of Default by VITAL, JCP
may apply the Security Deposit against damages suffered to
the date of such termination and/or may retain the Security
Deposit to apply against such damages as may be suffered or
shall accrue thereafter by reason of VITAL's default; and
(f) in the event any bankruptcy, insolvency, reorganization
or other creditor-debtor proceedings shall be instituted by
or against VITAL, or its successors or assigns, the Security
Deposit shall be deemed to be applied first to the payment
of any Rent due JCP for all periods prior to the institution
of such proceedings, and the balance, if any, of the
Security Deposit may be retained or paid to JCP in partial
liquidation of JCP's damages.
27. NOTICES AND CONSENTS. All notices, demands, requests,
consents or approvals which may or are required to be given
by either party to the other shall be in writing and shall
be deemed given when received or refused if sent by United
States registered or certified mail, postage prepaid, return
receipt requested or if sent by overnight commercial courier
service (a) if to VITAL, addressed to VITAL at the address
specified in Section 1(B) or at such other place as VITAL
may from time to time designate by notice in writing to JCP
or (b) if for JCP, addressed to JCP at the address specified
in Section 1(C) or at such other place as JCP may from time
to time designate by notice in writing to VITAL. Each party
agrees promptly to deliver a copy of each notice, demand,
request, consent or approval from such party to Landlord and
Prime Landlord and promptly to deliver to the other party a
copy of any notice, demand, request, consent or approval
received from Landlord or Prime Landlord. Such copies shall
be delivered by overnight commercial courier.
28. PROVISIONS REGARDING SUB-SUBLEASE. This Sub-Sublease
and all the rights of parties hereunder are subject and
subordinate to the Sublease and Prime Lease. Each party
agrees that it will not, by its act or omission to act,
cause a default under the Sublease or the Prime Lease. In
furtherance of the foregoing, the parties hereby confirm,
each to the other, that it is not practical in this
Sub-Sublease agreement to enumerate all of the rights and
obligations of the various parties under the Sublease and
the Prime Lease and specifically to allocate those rights
and obligations in this Sub-Sublease agreement. Accordingly,
in order to afford to VITAL the benefits of this
Sub-Sublease and of those provisions of the Sublease and the
Prime Lease which by their nature are intended to benefit
the party in possession of the Premises, and in order to
protect JCP against a default by VITAL which might cause a
default or event of default by JCP under the Sublease or the
Prime Lease:
A. Provided VITAL shall timely pay all Rent when and
as due under this Sub-Sublease, JCP shall pay, when and as
due, all base rent, additional rent and other charges
payable by JCP to Landlord under the Sublease;
B. Except as otherwise expressly provided herein, JCP
shall perform its covenants and obligations under the
Sublease which do not require for their performance
possession of the Premises and which are not otherwise to be
performed hereunder by VITAL on behalf of JCP. For example,
JCP shall at all times keep in full force and effect all
insurance required of JCP as Tenant under the Sublease.
C. Except as otherwise expressly provided herein,
VITAL shall perform all affirmative covenants and shall
refrain from performing any act which is prohibited by the
negative covenants of the Prime Lease, where the obligation
to perform or refrain from performing is by its nature
imposed upon the party in possession of the Premises. If
practicable, VITAL shall perform affirmative covenants which
are also covenants of JCP under the Sublease at least five
(5) days prior to the date when JCP's performance is
required under the Sublease. JCP shall have the right to
enter the Premises to cure any default by VITAL under this
Section.
D. JCP shall not agree to an amendment to the
Sublease which might have an adverse effect on VITAL's
occupancy of the Premises or its use of the Premises for
their intended purpose, unless JCP shall first obtain
VITAL's prior written approval thereof, which consent shall
not be unreasonably withheld or delayed,
E. JCP hereby grants to VITAL the right to receive
during the term of this Sub-Sublease all of the services and
benefits with respect to the Premises which are to be
provided by Prime Landlord under the Prime Lease. JCP shall
have no duty to perform any obligations of Prime Landlord
which are, by their nature, the obligation of an owner or
manager of real property. For example, JCP shall not be
required to provide the utilities, services or repairs which
the Prime Landlord is required to provide under the Prime
Lease nor expend any monies to obtain such utilities,
services or repairs. JCP shall have no responsibility for or
be liable to VITAL for any default, failure or delay on the
part of Prime Landlord in the performance or observance by
Prime Landlord of any of its obligations under the Prime
Lease, nor shall such default by Prime Landlord affect this
Sub-Sublease or waive or defer the performance of any of
VITAL's obligations hereunder except to the extent that such
default by Prime Landlord excuses performance by JCP, under
the Sublease. Notwithstanding the foregoing, the parties
contemplate that Prime Landlord shall, in fact, perform its
obligations under the Prime Lease and in the event of any
default or failure of such performance by Prime Landlord,
JCP agrees that it will, upon notice from VITAL, make demand
upon Landlord to make demand upon Prime Landlord to perform
its obligations under the Prime Lease and, provided that
VITAL specifically agrees to pay its pro-rata share of all
costs and expenses of JCP and provides JCP with security
reasonably satisfactory to JCP to pay such costs and
expenses, JCP will take appropriate legal action to enforce
the Sublease.
29. ADDITIONAL SERVICES. JCP shall cooperate with VITAL to
cause Landlord and Prime Landlord to provide services
required by VITAL in addition to those otherwise required to
be provided by Prime Landlord under the Prime Lease. VITAL
shall pay Prime Landlord's charge for such services promptly
after having been billed therefore by Prime Landlord or by
JCP. If at any time a charge for such additional services is
attributable to the use of such services both by JCP and by
VITAL, the cost thereof shall be equitably divided between
JCP and VITAL.
30. PRIME LANDLORD AND LANDLORDS CONSENT. The obligations
under this Sub-Sublease are expressly conditioned upon the
written consent of Prime Landlord and Landlord to this
Sub-Sublease. If both such consents have not been obtained
by July 1st, 2002, then either party shall have the option
to cancel and terminate this Sub-Sublease. VITAL's payment
of the Bonus referenced below shall not be required to be
made before such consents are obtained.
31. BROKERAGE. Each party warrants to the other that it has
had no dealings with any broker or agent in connection with
this Sub-Sublease other than the Broker as specified in
Section 1(Q), whose commission shall be paid by JCP, and
each party covenants to pay, hold harmless and indemnify the
other party from and against any and all costs (including
reasonable attorneys' fees), expense or liability for any
compensation, commissions and charges claimed by any other
broker or other agent with respect to this Sub-Sublease or
the negotiation thereof on behalf of such party.
32. RIGHT OF FIRST OFFER. VITAL hereby acknowledges that
the right of first refusal set forth in Exhibit "G" of the
Prime Lease remains exclusively with Landlord and the
Premises demised to VITAL pursuant to this Sub-Sublease do
not contain the space that is the subject of such right of
first refusal.
33. PARKING. The parties hereto acknowledge that Landlord
and Prime Landlord are party to a certain Covered Reserved
Space Parking License Agreement dated as of August 17, 1998
(the "Parking Agreement") for the right to park up to ten
(10) automobiles under the reserved covered parking
facilities at the Building. JCP hereby sub-sublicenses its
right under the Sublease allowing VITAL the use of eight (8)
of such spaces, subject and subordinate to the terms and
provisions of the Parking Agreement, at a monthly rental
rate of $360.00 ($45.00 per space) for the Term of this
Sub-Sublease.
34. FORCE MAJEURE. Neither party shall not be deemed in
default with respect to any of the terms, covenants and
conditions of this Sub-Sublease, the failure to timely
perform same is due in whole or in part to any strike,
lockout, labor trouble (whether legal or illegal), civil
disorder, failure of power, restrictive governmental laws
and regulations, riots, insurrections, war, shortages,
accidents, casualties, acts of God, acts caused directly by
the other party or its agents, employees and invitees or any
other cause beyond the reasonable control of the parties.
This Section shall not be applicable, however, if JCP's
failure timely to perform creates a default by JCP under the
Prime Lease and shall not be applicable to any financial
obligation hereunder.
35. MODIFICATION. This Sub-Sublease may not be changed,
modified or terminated except by an agreement in writing
signed by the party against whom enforcement of such change,
modification or termination is sought (except for
terminations provided for in this Sub-Sublease).
36. COUNTERPARTS. This Sub-Sublease may be executed in one
or more counterparts, each of which shall constitute an
original and all of which taken together shall constitute an
agreement.
37. BONUS. Notwithstanding anything to the contrary in this
Sub-Sublease, if, on or before June 17, 2002, (i) JCP is
entirely moved out of the Premises (including repair of any
damage caused in moving out), (ii) JCP is not in default
under the Sublease, (iii) no default exists under the Prime
Lease, then VITAL shall pay to JCP the sum of $10,000.00,
provided that such payment shall be made only after Landlord
and Prime Landlord have consented to this Sub-Sublease in
writing.
38. FURNISHINGS. JCP and VITAL agree that JCP will leave
the furnishings, fixtures, and equipment listed in Exhibit B
hereto (the "Equipment") in the Premises. JCP warrants that
all Equipment listed in Exhibit B is in the Premises, is in
good and working condition and repair, is owned free and
clear, without encumbrance or lien by third party, by JCP
and that JCP has the power and authority to convey it. VITAL
shall have the right to use the Equipment, at no charge or
expense, in VITAL's sole discretion. JCP shall not be
responsible for the maintenance or repair of the Equipment
while VITAL is using it. VITAL shall not be obligated to
replace or repair any of the Equipment that wears out,
becomes obsolete, or is damaged through no fault of VITAL,
but shall use reasonable care with the Equipment. At the
expiration of this Sub-Sublease without default by VITAL,
VITAL shall purchase the Equipment from JCP for the sum of
$1.00, and JCP agrees to provide VITAL with a xxxx of sale
for the same at that time.
The parties have executed this Sub-Sublease the day and year
first above written.
JCP:
XXXXXXX CAPITAL PARTNERS OF ARIZONA,
L.L.C.,
an Arizona limited liability company
By: /s/ Xxxx X. Xxxxx III
Name: Xxxx X. Xxxxx III
Title: Managing Member
VITAL:
VITAL LIVING, INC., a Nevada corporation
BY: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: President
CONSENTED TO:
Prime Landlord and Landlord hereby consent to the foregoing
Sub-Sublease.
PRIME LANDLORD:
NORTHBANK PROPERTIES LLC, formerly known as Northbank
Properties Limited Partnership
By: /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxxx
Title: Managing member
Date:
LANDLORD:
PRUDENTIAL MULTIFAMILY MORTGAGE, INC.
a Delaware corporation (f/k/a WMF Washington Mortgage Corp.)
By: /s/ Xxxxxx X. Xxxxx, Xx.
Name: Xxxxxx X. Xxxxx, Xx.
Title: Vice President
Date: 6/14/02
EXHIBIT A
Suite 105
[PAGE CONTAINS SCHEMATIC FLOOR PLAN OF SUITE LOCATION]
EXHIBIT B
List of Equipment
8 Executive style chairs
1 Executive L-desk w/right return
1 Executive L-desk w/left return
2 Executive L-desks
5 Credenza
1 2 Piece credenza w/upper cabinet
1 Floor Lamp
6 Steno Chairs
3 bookcases
2 Computer desks
4 Executive desks
1 Sofa/love seat
1 Conference table
14 Cloth conference chairs
1 Telephone table
14 Cloth low back chairs
1 End table
1 Small cabinet
1 Table desk
