SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT (the or this "Sublease Agreement") is made and
entered into as of this 1 day of September, 2003 (the "Effective Date"), by
and between ORTHO DEVELOPMENT CORPORATION, a Utah corporation ("ORTHO")
("Sublessor" or "Tenant"), and Flexpoint Holdings L.L.C., a Utah company
("Sublessee").
RECITALS:
A. Sublessor is the tenant under that certain Commercial Lease, dated
September 14, 1994, as amended by that certain Lease Extension Agreement,
dated as of September 29, 1999, together with all exhibits and addenda
attached thereto (collectively, the "Master Lease Agreement"), pursuant to
which Cheyenne Concrete Company, a Nevada Corporation ("Lessor" or
"Landlord"), leased to Sublessor approximately 4,300 square feet of office and
storage space and approximately 7,200 square feet of warehouse space (the
"Premises") in Building One of the Draper Business Park (the "Building"),
located at 000 Xxxx 00000 Xxxxx, Xxxxxx, Xxxx 00000.
B. Subject to the terms and conditions of this Agreement, Sublessor
desires to retain its lease of the Premises and to sublease the Premises to
Sublessee, and Sublessee desires to sublease the Premises from Sublessor.
NOW THEREFORE, in consideration of the covenants and promises set forth in
this Agreement, and the mutual benefits to be derived therefrom and herefrom,
the parties hereto agree as follows:
1. DEFINED TERMS. Capitalized terms used in this Sublease Agreement
and not otherwise defined in this Sublease Agreement shall have the meanings
given to such terms in the Master Lease.
2. SUBLEASED PREMISES. Subject to the terms and conditions of this
Sublease Agreement, Sublessor hereby subleases to Sublessee, the Premises
consisting of approximately 11,500 square feet of office and storage space,
together with the Common Areas and all other rights appurtenant to such
defined portion of the Premises (collectively, and as so defined, the
"Subleased Premises").
3. REPRESENTATIONS AND WARRANTIES BY SUBLESSOR. For the benefit of
Sublessee, Sublessor makes the following representations and warranties, each
of which may be relied upon by Sublessee, except as and to the extent
Sublessee has knowledge to the contrary, as of the date hereof and as of the 1
day of September, 2003 (the "Commencement Date"):
(a) Subject to the consent of Landlord as specified below,
Sublessor has the requisite corporate power and authority, and has been duly
authorized, to execute this Sublease Agreement.
(b) To Sublessor's knowledge, the Master Lease is in full force
and effect, the Master Lease has not been amended or modified in any manner,
no event of default by Sublessor exists under the Master Lease, and there is
no event or circumstance that has occurred and is continuing that with the
passage of time or the giving of notice, or both, would constitute an event of
default under the Master Lease.
(c) To Sublessor's knowledge, Landlord has performed all of its
obligations to be performed pursuant to the Master Lease as of the date of
this Sublease Agreement, Landlord is not in default under the Master Lease and
there is no event or circumstance that has occurred and is continuing that
with the passage of time or the giving of notice, or both, would constitute a
default by Landlord under the Master Lease.
5. SUBLESSEE REPRESENTATIONS AND WARRANTIES. For the benefit of
Landlord and Sublessor, Sublessee hereby represents and warrants to, and
agrees with, Landlord and Sublessor as follows, each of which is true and
accurate as of the date of the execution of this Sublease Agreement, and each
of which will be true and accurate as of the Commencement Date:
(a) Sublessee has the requisite corporate company power and
authority, and has been duly authorized, to execute this Sublease Agreement.
(b) Sublessee has made independent inquiry and investigation into
the transactions contemplated by this Sublease Agreement and, on the basis of
such inquiry and investigation, has independently concluded that the
transactions contemplated by and under this Sublease Agreement are in the best
interests of Sublessee and for full, fair and adequate consideration, such
that the transactions contemplated by and under this Sublease Agreement are
being made by Sublessee voluntarily, with no duress, and with full
understanding of the circumstances.
6. TENANCY.
(a) The "Tenancy" of this Sublease Agreement shall commence on
the Commencement Date and shall continue, through September 30, 2004, in
accordance with the provisions of this Sublease Agreement. By the execution
hereof, Sublessor and Sublessee acknowledge and agree that Sublessor shall
have no obligation or liability for the alteration, remediation, modification
and/or improvement of the Premises or the Subleased Premises under the Master
Lease, by reason of this Sublease Agreement or otherwise, including without
limitation in connection with any work required under the Master Lease or in
connection with any future occupant of all or any part of the Premises.
(b) Subleasee shall take possession of subleased premises on
August 15, 2003 or at signing of lease prior to that time, in order to make
necessary improvements.
7. RENT. For the use of the Subleased Premises hereunder, Sublessee
agrees that:
(a) Sublessee shall pay to Sublessor, as fixed monthly rent for
the Subleased Premises during the Tenancy, without deduction, setoff, notice,
or demand (except as specifically provided for in this Sublease Agreement), at
the address set forth below, five thousand five hundred and NO/100 Dollars
($5,500.00).
(b) Unless otherwise instructed in writing by Sublessor, each
installment of fixed monthly rent, Additional Rent, and other payments due
from Sublessee to Sublessor pursuant to this Sublease Agreement shall be paid
to Sublessor on or before the date due (being the first day of each month of
the Tenancy, commencing on the Commencement Date) at the office of Sublessor,
00000 Xxxxx Xxxxxxxx Xxxx Xxxxx, Xxxxxx, Xxxx 00000.
(c) All rent shall be paid in advance on the first day of each
month of the Commencement Date. If the Commencement Date begins or ends on a
day other than the first or last day of a month, the rent for the partial
months shall be prorated on a per diem basis, based on a 30-day month, for
actual days elapsed.
(d) Subleasee agrees to provide subleasor with a refundable
security deposit of $5,500 upon subleasee taking possession of the premises.
This deposit shall be refundable at conclusion of lease terms, less any
applicable expenses, as per this lease agreement.
(e) Subleasor agrees to provide subleasee internet access for one
hundred fifty and NO/100 dollars ($150.00) per month for one (1) year or until
subleasee obtains another source for their internet access.
8. Late Charges; Default Interest. If any monthly rent, Additional
Rent, or other charge, expense, or other amount due and payable hereunder by
Sublessee to Sublessor is not paid as and when due, then, without limitation,
such unpaid amount shall bear interest from the due date until paid, both
before and after judgment, at the rate of ten percent (10%) per annum.
Further, if any monthly rental payment or any payment required to be made
pursuant to this Sublease Agreement is not paid within any applicable notice
and cure period after the same becomes due, Sublessee shall pay to Sublessor a
late charge in an amount equal to five percent (5%) of any such overdue
payment amount. The provisions for such default interest and late charges
shall be in addition to all of the parties' other rights and remedies
hereunder or at law and shall not be construed as, in any case, a penalty.
9. USE OF SUBLEASED PREMISES; signage and parking: Sublessor and
Sublessee agree as follows:
(a) The Subleased Premises shall be used and occupied by
Sublessee for general office purposes and warehouse use in accordance with
customary business practices and applicable law and for no other use or
purpose (the "Use").
(c) Sublessee shall obtain at its sole cost and expense all
necessary licenses and permits necessary to conduct the Use;
(d) Sublessee shall operate only such services as are necessary
for or incidental to the Uses.
(e) Sublessee may utilize office furniture currently located on
the Subleased Premises, as identified on attached Exhibit "C". Sublessee
shall be responsible for maintaining, repairing and replacing such furniture
to ensure that such furniture is returned to Sublessor in its pre-sublease
condition at the end of the Tenancy, ordinary wear and tear excepted. The
costs for repair or replacement of damaged or destroyed furniture shall be
borne entirely by Sublessee.
(f) Sublessee shall, at Sublessee's sole cost and expense, comply
with all laws, ordinances, regulations or orders of any federal, state, county
or municipal or other public authority applicable to Sublessee or affecting
the Subleased Premises and the Common Access Areas, including but not limited
to occupational health and safety, hazardous waste and substances, sudden or
non-sudden pollution and environmental matters, in connection with the Use.
(g) Sublessee will not commit any waste on the Subleased
Premises, nor permit any obnoxious odors or noise to emanate from the
Subleased Premises, nor shall it use or permit the use of the Subleased
Premises in violation of any present or future law of the United States or of
the State of Utah, or in violation of any municipal or county ordinance or
regulation applicable thereto. Sublessee shall promptly notify Landlord and
Sublessor of Sublessee's receipt of any notice of a violation of any such law,
standard or regulations.
(h) Sublessee may install on the Subleased Premises any trade
fixtures and equipment reasonably necessary for Sublessee's Use of the
Subleased Premises, which shall remain Sublessee's personal property.
Sublessee may remove any such trade fixtures and equipment at any time during
the Tenancy, but shall repair any damage to the Premises or the Building
caused by the installation or removal of such trade fixtures and equipment.
(i) Sublessee shall be entitled to building directory, elevator
access and doorway signage, to the extent available to Sublessor or other
tenants of the Building and reasonably necessary or appropriate to indicate
Sublessee's Use, but, otherwise, shall not have any other signage rights in
respect of the Use under the Master Lease or otherwise.
(j) Sublessee shall be entitled to utilize parking spaces in the
Common Area, as part of the Subleased Premises, without additional rent.
(k) Sublessee shall be permitted to place and maintain signage on
any exterior door, wall, or window of the Subleased Premises; provided,
however, no signage may be placed by Sublessee without first obtaining
Sublessor's written approval and consent, said approval and consent not to be
unreasonably withheld or delayed. Sublessee shall be responsible for all
costs of placing and maintaining such approved signage.
(l) Notwithstanding Sublessor's sublease of the Subleased
Premises to Sublessee under this Sublease Agreement, Sublessor shall be solely
responsible for and shall timely pay each installment of Base Rent, Tenant's
proportionate share of Additional Rent, utilities, taxes and all other amounts
which become due and payable by Tenant under the Master Lease.
(m) Notwithstanding Sublessor's sublease of the Subleased
Premises to Sublessee under this Sublease Agreement, Sublessor shall fully and
timely perform all obligations required by Sublessor to be performed under the
Master Lease, and shall, at all times, comply with all provisions of
applicable law.
10. ASSIGNMENT AND SUBLETTING. Sublessee shall not assign this Sublease
Agreement or sublet all or any part of the Subleased Premises without the
prior written consent of Sublessor (and the consent of Landlord), which
consent, subject to and consistent with the terms and conditions of Paragraph
16 of the Master Lease, may be withheld, in Sublessor's and/or Landlord's sole
discretion; provided that, in the event of any request for such assignment or
sublease, Sublessor may, in lieu of any such consent, terminate this Sublease
as to that part or all of the Subleased Premises proposed to be assigned or
subleased; provided further that Sublessee shall not be released from its
obligations under this Sublease Agreement in the event of any such assignment
or sublease.
11. DEFAULT AND REMEDIES. Sublessor and Sublessee further covenant and
agree as follows:
(a) Sublessee shall be deemed to be in default of this Sublease
Agreement upon the failure to pay rent (and/or any other amounts due and
payable hereunder) when due according to the terms of this Sublease Agreement.
(b) Other than as set forth in subparagraph 11(a) above, a party
shall be deemed to be in default of this Sublease Agreement only upon the
expiration of five (5) days from receipt of written notice from the other
party specifying the particulars in which such party has failed to perform the
obligations of this Sublease Agreement, unless such party, prior to the
expiration of said five (5) days, has rectified the particulars specified in
said notice of default; provided that, notwithstanding the foregoing, such
party shall not be deemed to be in default if such failure (except a failure
to pay money) cannot be rectified within said five (5) day period and such
party is using good faith and its best efforts to rectify the particulars
specified in the notice of default and, in any case, shall cure any such
failure within fifteen (15) days following any such notice of default.
(c) In addition to the remedies specifically set forth in this
Sublease Agreement, Sublessor and Sublessee shall have all other remedies
provided by law or statute to the same extent as if fully set forth herein
word for word. No remedy herein conferred upon, or reserved to Sublessor or
Sublessee shall exclude any other remedy herein or by law provided, but each
shall be cumulative.
(d) If Sublessee is in default, Sublessor may, upon two (2) days'
prior written notice to Sublessee (in addition to the notice required under
subparagraph 11(b)), terminate this Sublease Agreement.
(e) Should Sublessee elect to terminate this Sublease Agreement,
subject to any limitations under applicable Utah law, Sublessor may recover
from Sublessee any unpaid rent which had been earned at the time of such
termination and any other amounts necessary to compensate Sublessor for all
detriment caused by Sublessee's failure to perform its obligations under this
Sublease Agreement or which in the ordinary course would be likely to result
therefrom, including, but not limited to, any costs or expenses incurred by
Sublessor in (A) retaking possession of the Subleased Premises, including
reasonable attorneys' fees therefor, (B) maintaining or preserving the
Subleased Premises after any default, (C) preparing the Subleased Premises for
reletting to a new sublessee, including repairs or alterations to the
Subleased Premises, (D) leasing commissions, or (E) any other costs necessary
or appropriate to relet the Subleased Premises
(f) If the defaulting part is Sublessor, Sublessee may also
terminate this Sublease Agreement upon thirty (30) days' prior written notice
to Sublessor (in addition to the notice required under subparagraph 11(b)).
(g) If a party is in default, the other party shall have the
right, upon an additional five (5) days prior written notice to the defaulting
party, to cure such default on behalf of the defaulting party and, in
connection therewith, do all work and make all payments deemed reasonably
necessary or appropriate by such curing party, including payment of reasonable
costs (including reasonable attorneys' fees) and charges in connection with
any legal action which may have been commenced or threatened (except that in
case of an emergency, prior notice need not be given for a party to exercise
its rights hereunder), and all sums so expended by a curing party shall be
paid by the defaulting party on demand.
12. CASUALTY AND CONDEMNATION. If there is a taking by eminent domain
within the coverage of Paragraph 25 of the Master Lease (a "Taking") or any
casualty loss within the coverage of Paragraph 25 of the Master Lease, which
in either case affects the Subleased Premises and, as a result of such Taking
or casualty loss, the "Tenant" under the Master Lease has the option to
terminate the Master Lease, Sublessee shall have the right to terminate this
Sublease Agreement upon thirty (30) days' written notice to Sublessor. In no
event will Sublessor agree to, or exercise any right to, terminate the Master
Lease under Paragraph 11 of the Master Lease without the prior written consent
of Sublessee, in Sublessee's sole and absolute discretion, unless Sublessee
has first exercised the right granted in this Paragraph 11 to terminate the
Sublease Agreement.
13. INSURANCE. Unless and as and to the extent the Sublessee shall
determine, in its sole discretion, to self-insure, from and after the date of
delivery of the Leased Premises to Sublessee, Sublessee will carry and
maintain at Sublessee's sole cost and expense the following types of
insurance, in the amounts specified and in the form hereinafter provided for,
and shall, upon request, provide Landlord or Sublessor with a certificate
evidencing such insurance.
(a) Sublessee shall obtain and keep in effect the following
insurance, at Sublessee's sole cost and expense.
(i) Insurance upon all property situated in the Subleased
Premises owned by Sublessee or for which Sublessee is legally liable.
(ii) Lessee Improvements Property Damage. Sublessee shall
be responsible for obtaining and paying for such insurance as Sublessee may
desire on Sublessee's trade fixtures and personal property from time to time
in or upon the Leased Premises, and Sublessor shall not be liable for damage
to or loss or theft of property of Sublessee or others.
(iii) Commercial General Liability insurance including fire,
legal liability and contractual liability insurance coverage with respect to
the Building and the Subleased Premises. The coverage is to include
activities and operations conducted by Sublessee and any other person
performing work on behalf of Sublessee and those for whom Sublessee is by law
responsible. Such insurance shall be written on a comprehensive basis with
inclusive limits of not less than ONE MILLION AND NO/100 DOLLARS
($1,000,000.00) combined single limit of liability for each occurrence for
bodily injury and property damage which amounts may be changed by consent of
both parties in future years. The limit of said insurance shall not, however,
limit the liability of Sublessee hereunder. Each of Sublessor and Sublessee
shall be named as an additional insured on this liability policy arising out
of Sublessee's occupancy and/or negligent use of the Subleased Premises and/or
the Building.
(iv) Any other form of insurance as Sublessee, Sublessor,
Landlord, or Landlord's Lender may from time to time mutually agree is
reasonable and/or as may be otherwise required of a tenant under the Master
Lease, including without limitation workers compensation insurance with no
less than the limits required by Utah law. Such insurance shall be in the
form, amounts and for the risks which a prudent tenant of the Subleased
Premises would insure.
(b) All policies of insurance required by the terms of this
Sublease Agreement shall contain an endorsement or agreement by the insurer
that any loss shall be payable in accordance with the terms of such policy
notwithstanding an act or negligence of Landlord or Sublessor that might
otherwise result in forfeiture of said insurance, and the further agreement of
the insurer waiving all rights of subrogation, counterclaim or deductions
against Landlord or Sublessor.
(c) Sublessee shall deliver to Sublessor and Landlord the
certificates of insurance for the insurance required to be carried by
Sublessee, which, except for the insurance described in subparagraph a(ii),
above, of this Paragraph 13, shall have attached an additional insured
endorsement, in a form reasonably satisfactory to Sublessor, and Landlord, and
a standard waiver of subrogation endorsement. If Sublessee provides any of
the required insurance through blanket policies covering more than one
location, then Sublessee shall furnish Sublessor with a Certificate of
Insurance for each such policy setting forth the coverage, the limits of
liability, the name of the carrier, the policy number, and the expiration
date, at least fifteen (15) days prior to the expiration of each such policy.
All such policies shall contain a provision that such policies will not be
cancelled or materially amended, or the scope thereof or limits of coverage
thereof or limits reduced, without at least thirty (30) days prior written
notice by registered mail to Sublessor and Landlord.
(d) If Sublessee fails to secure or maintain any insurance
coverage required of it by the terms of this Sublease Agreement or fails to
self-insure, in Sublessee's sole discretion, Sublessor may, without obligation
purchase such insurance coverage required at Sublessee's expense. Sublessee
shall promptly reimburse Sublessor for any monies so expended.
Landlord, Sublessee and Sublessor hereby mutually release and waive their
entire right of recovery against the other party for any and all loss or
damage to the improvements, all personal property of Sublessee, and any
installations, betterments or improvements added to the building by Sublessee,
where such loss results from fire, is occasioned, caused or incurred by, or
results from fire, windstorm, hail, explosion, riot attending strike, civil
commotion, aircraft, vehicles, smoke and vandalism and all other perils which
are insured (either by self insurance or otherwise) against under the terms
and conditions of this Sublease Agreement, whether said loss occurred or was
caused by the negligence of the Landlord, Sublessee or Sublessor, their
respective agents, servants, employees, subleases or concessionaires, or
otherwise, as and to the extent any such insurance covers any such loss or
damage, and Landlord, Sublessor and Sublessee each further warrant that
insurance companies insuring Landlord, Sublessor or Sublessee shall have no
rights against the other, whether by assignment, subrogation or otherwise;
provided that, notwithstanding the foregoing, willful misconduct of a criminal
nature lawfully attributable to a party shall, to the extent that said conduct
contributes to loss or damage, not be excused under this Paragraph.
14. INCREASE IN FIRE INSURANCE PREMIUMS. Sublessee agrees that it will
not at any time during the Tenancy carry any stock of goods or do anything in
or about the Leased Premises which will in any way tend to increase the
insurance rates upon the Building. Sublessee agrees to pay to Sublessor
forthwith upon demand the amount of any verified increase in premiums for
insurance against loss by fire that may be charged during the Tenancy of this
Lease on the amount of insurance to be carried by Sublessor on the Building
resulting from the foregoing or from Sublessee doing any act in or about the
Leased Premises which does so increase the insurance rates, whether or not
Sublessor shall have consented to such act on the part of Sublessee. If
Sublessee installs upon the Leased Premises any electrical equipment which
constitutes an overload on the electrical lines of the Leased Premises (and
Landlord has otherwise complied with the terms of Paragraph 11 hereof),
Sublessee shall, at its own expense, make whatever changes are necessary to
comply with the requirements of the insurance underwriters and any
governmental authority having jurisdiction thereof, but nothing herein
contained shall be deemed to constitute Landlord's consent to such
overloading.
Sublessor agrees that it will not at any time during the Tenancy carry any
stock of goods or do anything in or about the Leased Premises which will in
any way tend to increase the insurance rates of the Sublessee for its trade
fixtures and personal property. Sublessor agrees to pay to Sublessee
forthwith upon demand the amount of any verified increase in premiums for
insurance against loss by fire that may be charged during the Tenancy of this
Sublease Agreement on the amount of insurance to be carried by Landlord on the
Subleased Premises resulting from the foregoing or from Sublessor doing any
act in or about the Subleased Premises which does so increase the insurance
rates, whether or not Sublessee shall have consented to such act on the part
of Sublessor. If Sublessor installs upon the Leased Premises any electrical
equipment which constitutes an overload on the electrical lines of the Leased
Premises (and Sublessee has otherwise complied with the terms of Paragraph 11
hereof), Sublessor shall, at its own expense, make whatever changes are
necessary to comply with the requirements of the insurance underwriters and
any governmental authority having jurisdiction thereof, but nothing herein
contained shall be deemed to constitute Sublessee's consent to such
overloading.
15. ADDITIONAL COVENANTS AND AGREEMENTS. In addition, Sublessor and
Sublessee covenant and agree as follows:
(a) Sublessor shall remain liable for all of the obligations of
the Tenant under the Master Lease. Sublessor shall timely pay and perform all
of the "Payment Obligations" (defined below), conditioned only upon timely
payment by Sublessee to Sublessor of the amounts due and owing by Sublessee to
Sublessor pursuant to this Sublease Agreement. Sublessor shall timely perform
all of the terms and conditions of the Master Lease as they relate to the
Premises. As used in this Sublease Agreement, the term "Payment Obligations"
refers to any and all obligations of Sublessor to pay any amount to Landlord
under the Master Lease.
(b) Sublessor hereby indemnifies, holds harmless and agrees to
defend Sublessee from and against any and all losses, injury, obligations,
claims, damages, judgments, and injuries of any nature on account of any
breach by Sublessor of the obligations of Sublessor under this Sublease
Agreement or the Master Lease, including without limitation, on account of any
breach by Sublessor of the Payment Obligations, except to the extent that
Sublessor is prevented from performing any such obligations by a breach of
this Sublease Agreement by Sublessee. Sublessor's obligations with respect to
indemnification hereunder shall remain effective, notwithstanding the
expiration or termination of this Sublease Agreement, as to claims arising or
accruing prior to the expiration or termination of this Sublease Agreement.
(c) Sublessee hereby indemnifies, holds harmless and agrees to
defend Sublessor from and against any and all losses, injury, obligations,
claims, damages, judgments, and injuries of any nature on account of any
breach by Sublessee of the obligations of Sublessee under this Sublease
Agreement, except to the extent that Sublessee is prevented from performing
any such obligations by a breach of this Sublease Agreement by Sublessor.
Sublessee's obligations with respect to indemnification hereunder shall remain
effective, notwithstanding the expiration or termination of this Sublease
Agreement, as to claims arising or accruing prior to the expiration or
termination of this Sublease Agreement.
(d) Except as may be otherwise required under the Master Lease,
Sublessor agrees, upon reasonable, advance written request of Sublessee
specifying the particulars thereof, to enforce the terms of the Master Lease
to the extent reasonably necessary to cause Landlord to perform its
obligations under the Master Lease, as they relate to the Subleased Premises,
for the benefit of Sublessee.
(e) If there are inconsistencies in the terms of this Sublease
Agreement and the terms of the Master Lease, as between Sublessor and
Sublessee, the terms of this Sublease Agreement shall control.
(f) To the extent that the Master Lease grants rights and
benefits to the "Tenant" under the Master Lease, Sublessee may exercise,
enforce, and enjoy all such rights as they relate to the Subleased Premises
independent of, and without any consent or approval from, Sublessor; provided
that any such exercise shall not adversely affect any other use of or interest
in the Subleased Premises.
(g) Other than the Payment Obligations, Sublessee assumes and
agrees to perform the Lessee's obligations under the Master Lease during the
Tenancy, to the extent that such obligations are applicable to the Subleased
Premises. Sublessee shall not commit or suffer any act or omission that will
violate or constitute a default under any of the provisions of the Master
Lease.
(h) Conditioned only upon compliance by Sublessee with the terms
and conditions of this Sublease Agreement, Sublessor covenants that Sublessee
shall have quiet and peaceful possession of the Subleased Premises during the
Sublessee Business Hours throughout the Tenancy, without, except as and to the
extent of any rights of Landlord under the Master Lease, interference from
Sublessor, anyone acting by, through or under Sublessor.
(i) If the Master Lease terminates, this Sublease Agreement shall
terminate and the parties shall be relieved of any further liability or
obligation under this Sublease Agreement; provided, however, that if the
Master Lease terminates as a result of a default or breach by Sublessor or
Sublessee under this Sublease Agreement and/or the Master Lease from and after
the date hereof, then the defaulting party shall be liable to the
nondefaulting party for actual damages and relocation expenses (out-of-pocket)
suffered as a result of such termination, consequential damages and lost
profits excepted.
(j) Sublessee agrees not to permit any lien for monies owing by
Sublessee to remain against the Subleased Premises for a period of more than
ten (10) days; provided, however, that nothing herein contained shall prevent
Sublessee, in good faith and for good cause, from contesting in the courts the
claim or claims of any person, firm or corporation growing out of Sublessee's
operation of the Subleased Premises or costs of improvements by Sublessee on
the Subleased Premises, and the postponement of payment of such claim or
claims until such contest shall finally be decided by the courts shall not be
a violation of this Sublease Agreement or any covenant hereof; provided that
during such contest, upon Sublessor's request, Sublessee shall deposit with
Sublessor such security as Sublessor may reasonably deem necessary to prevent
the impairment of the Subleased Premises. Should any such lien be filed and
not released or discharged or action not commenced to declare the same invalid
within ten (10) days after discovery of same by Sublessee, Sublessor may at
Sublessor's option (but without any obligation so to do) pay or discharge such
lien and may likewise pay and discharge any taxes, assessments or other
charges against the Subleased Premises which Sublessee is obligated hereunder
to pay and which have become a lien on the Subleased Premises. Sublessee
agrees to repay any sums so paid by Sublessor upon demand therefor, together
with interest at the rate of twelve percent (12%) per annum from the date any
such payment is made.
(k) Sublessee or Sublessor, as the case may be, shall at any time
upon not less than five (5) days' prior written notice from Sublessor or
Sublessee, as the case may be, execute, acknowledge, and deliver to Sublessor
or Sublessee, as the case may be, a statement in writing that:
(i) Certifies that this Sublease Agreement is unmodified
and in full force and effect (or if modified, states the nature of such
modification and certifies this Sublease Agreement, as so modified, is in full
force and effect) and the date to which the rent and other charges are paid in
advance, if any; and
(ii) Acknowledges that there are not, to Sublessee's or
Sublessor's knowledge, as the case may be, any uncured defaults on the part of
Landlord or, as the case may be, Sublessor or Sublessee hereunder, or
specifying such defaults if any are claimed.
Sublessee's or Sublessor's, as the case may be, failure to deliver such
statement within such time shall be conclusive upon Sublessee or Sublessor
that:
(i) This Sublease Agreement is in full force and effect,
without modification except as may be represented by Lessor or, as the case
may be, Sublessor or Sublessee;
(ii) There are no uncured defaults in Lessor's or, as the
case may be, Sublessor's or Sublessee's performance; and
(iii) Not more than one month's rent has been paid in
advance.
(l) Sublessee acknowledges and agrees that authorizing
resolutions, together with signature and incumbency certifications for the
individuals signing on behalf of Sublessee shall be delivered by Sublessee to
Sublessor concurrently with the execution and delivery of this Sublease
Agreement.
16. ATTORNEYS' FEES. If Sublessor or Sublessee shall commence an action
against the other arising out of or in connection with this Sublease
Agreement, the prevailing party shall be entitled to recover its actual costs
of suit and reasonable attorneys' fees.
17. MAINTENANCE, REPAIRS AND INSPECTION OF PROPERTY. Except as
otherwise specified in this Sublease Agreement, the Sublessor or the Landlord
will make all necessary structural and exterior repairs to the Subleased
Premises and all repair and maintenance of the heating, air conditioning,
electrical, and plumbing equipment located in and serving the Subleased
Premises, to ensure that the Subleased Premises are reasonably suitable for
the Use and in good condition and repair, normal wear and tear excepted, at
the expense of the Landlord or Sublessor; provided, however, that if the
repairs or maintenance are required by reason of the special requirements,
acts, or negligence of the Sublessee or of the agents, employees, patients, or
invitees of the Sublessee, then the Sublessor or Landlord shall make the
necessary repairs at the expense of the Sublessee, which shall be paid by the
Sublessee to the Landlord or Sublessor within ten (10) days of the Lessor's or
Lessee's written demand therefor, together with reasonably satisfactory
evidentiary documentation thereof. All repairs and replacements will be at
least equal to the original work in style, quality, and class.
Except as otherwise specified herein, the Sublessor shall have no
obligation to repair, maintain or replace the interior of the Subleased
Premises or any portion thereof, which is intended to be the sole
responsibility of the Lessor under the Master Lease. At the expiration or
termination of the Sublease Agreement, the Sublessee shall peacefully
surrender the Leased Premises and the Parking Facilities, together with all
improvements therein (other than moveable furnishings, trade fixtures,
equipment, and personal property belonging to the Sublessee and not affixed to
the Leased Premises) to the Lessee in a condition as good as when received by
the Lessee, reasonable wear and tear and damage by acts of nature or the
elements excepted.
18. COMMON AREAS; COMMON AREA MAINTENANCE.
(a) The Landlord and Sublessor represent, warrant and covenant to
the Sublessee that, except and only to the extent that the same shall be
reasonably necessary or appropriate for Use of the Subleased Premises by and
for the benefit of the Sublessee, and the Sublessee's employees, customers,
invitees, licensees, agents and representatives in connection with the Use,
during the Tenancy, the Sublessee shall have right to the nonexclusive use and
enjoyment of the "Common Areas" reasonably necessary or appropriate for access
to and Use of the Subleased Premises. Except for the purposes specified in
this paragraph, the Sublessor shall not be deemed or construed to be a legal
or beneficial owner of the Building or any part thereof, but the Sublessor
shall use its best reasonable efforts to ensure that the Sublessee shall not
be deprived of and shall be entitled (for purposes of the Use) to nonexclusive
use of and have access to the Common Areas and the Subleased Premises during
the Tenancy.
(b) Sublessee shall pay to Sublessor as Additional Rent its
prorata share (based upon the number of square feet comprising the Subleased
Premises) of all common area maintenance and repair costs and all taxes
assessed against the Premises that are required to be paid by Sublessor under
the Master Lease.
19. UTILITY COSTS. Sublessee shall pay, on a monthly basis, all utility
costs associated with Sublessee's Use of the Subleased Premises. Sublessee
shall pay all such utility costs to Sublessor within ten (10) days after
Sublessee's receipt of Sublessor's invoice itemizing all such utility charges.
21. TELEPHONE / TELECOMMUNICATION EXPENSES. Sublessee shall be solely
responsible for the installation of and monthly rates for all additional
telephone and telecommunication service necessary for Sublessee's Use of the
Subleased Premises.
22. NOTICES. All notices and demands, which may or are to be required
or permitted to be given by either party on the other hereunder shall be in
writing. All notices and demands by Sublessor to Sublessee shall be sent by
United States mail, postage prepaid, or by an express delivery service which
maintains records of deliveries, freight prepaid, addressed to Sublessee at
the Subleased Premises, and to the address herein below, or to such other
place as Sublessee may from time to time designate in a notice to Sublessor.
All notices and demands by Sublessee to Sublessor shall be sent by United
States Mail, postage prepaid, or by an express delivery service which
maintains records of deliveries, freight prepaid, addressed to Sublessor at
the address set forth herein, and to such other person or place as Sublessor
may from time to time designate in a notice to Sublessee. The date that
notice is deemed to have been given, received and become effective shall be
the date of actual receipt, if the notice is sent by express delivery service
and four days following deposit in the United States mail, if the notice is
sent through the United States mail.
If to Sublessor: with a copy to:
Flexpoint Holdings, L.L.C.
000 Xxxx 00000 Xxxxx
Xxxxxx, Xxxx 00000
If to Sublessee: with a copy to:
ORTHO DEVELOPMENT GROUP, INC. STOEL RIVES LLP
00000 Xxxxx Xxxxxxxx Xxxx Xxxxx 000 Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxx 00000 Salt Lake City, Utah
Attention: Xxx Xxxxxxxx Attention: Nile X. Xxxxxx, Esq.
23. CONSTRUCTION OF SUBLEASE; FURTHER UNDERSTANDINGS. Sublessor and
Sublessee, in furtherance of this Sublease Agreement, acknowledge and agree
that:
(a) Words of any gender used in this Sublease Agreement shall be
held to include any other gender, and words in the singular number shall be
held to include the plural when the sense requires. Interpretation,
construction and performance of this Sublease Agreement shall be governed by
the laws of the State of Utah.
(b) This Sublease Agreement shall be governed by and construed in
accordance with the laws of the State of Utah. For purposes of this Sublease
Agreement, "force majeure" shall mean any delay caused by reason of a strike,
labor trouble, acts of nature or any other cause beyond the reasonable control
of a responsible party (financial inability excepted), where such party is
otherwise without fault.
(c) The paragraph headings as to the contents of particular
paragraphs herein are inserted only for convenience and are in no way to be
construed as part of such paragraph or as a limitation on the scope of the
particular paragraph to which they refer.
(d) The covenants and agreements contained in the within Sublease
Agreement shall apply to, inure to the benefit of, and be binding upon the
parties hereto and upon their respective successors in interest and legal
representatives, subject to the restrictions contained herein on assignments
by Sublessee.
(e) Except as and to the extent otherwise specified in this
Sublease Agreement, this Sublease Agreement is not intended and shall not be
deemed to amend, modify, terminate or relinquish any other right or obligation
of Sublessor or Lessor under the Master Lease.
(f) The failure of a party to insist upon strict performance of
any of the terms, covenants, conditions or agreements contained herein shall
not be deemed a waiver of any rights or remedies that said party may have, and
shall not be deemed a waiver of any subsequent breach or default in the
performance of any of the terms, covenants, conditions or agreements contained
herein.
(g) Nothing herein contained shall be deemed or construed as
creating a relationship of principal and agent, partnership or joint venture
between the parties, it being agreed that neither the method of computation or
payment of rent nor any other provision contained herein, nor any acts of the
parties hereto, shall be deemed to create any relationship between the parties
other than the relationship of landlord and tenant. Any obligation or
liability whatsoever of Sublessor, which may arise at any time under this
Sublease Agreement or any obligation or liability which may be incurred by it
pursuant to any other instrument, transaction, or undertaking contemplated
hereby shall not be personally binding upon, nor shall resort for the
enforcement thereof be had to the property of, its directors, shareholders,
officers, employees or agents, regardless of whether such obligation or
liability is in the nature of contract, tort, or otherwise.
(h) This Sublease Agreement sets forth all terms, covenants,
conditions, agreements, and understandings between Sublessor and Sublessee
concerning the Subleased Premises, and Sublessor shall have no liability to
Sublessee for any representations, warranties or covenants made in respect of
the Subleased Premises by any other person or entity, including without
limitation Landlord. No subsequent modification, amendment, or change in this
Sublease Agreement shall be binding unless reduced to writing and signed by
Sublessor and Sublessee. There are no representations or warranties between
the parties pertaining to this Sublease Agreement, except as expressly set
forth herein. The normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of this Sublease Agreement or any exhibits or
amendments hereto.
[signature page follows; remainder of page intentionally left blank]
IN WITNESS WHEREOF, this Sublease Agreement has been executed and
delivered by the undersigned as of the date first above written.
SUBLESSOR:
ORTHO DEVELOMENT CORPORATION, a Utah corporation
/s/ Xxxxxx X. Xxxxxxxx
By:_____________________________________________
Xxxxxx X. Xxxxxxxx
Printed Name:___________________________________
Title:__________________________________________
Dated this 22 day of August, 2003.
SUBLESSEE:
Flexpoint Holdings L.L.C., a Utah company
/s/ Xxxxx X. XxXxxxx
By:_____________________________________________
Xxxxx X. XxXxxxx
Printed Name:___________________________________
Title:__________________________________________
Dated this 22 day of August, 2003.
LANDLORD'S CONSENT
Landlord hereby consents to Sublessor's sublease of the Subleased Premises
in accordance with the terms and conditions of this Sublease Agreement.
FGBP
a Utah L.L.C.
By /s/ Xxxx Xxxxxxxx
______________________________________________
Xxxx Xxxxxxxx
Printed Name:___________________________________
Title:__________________________________________
Dated this 22 day of August, 2003.
EXHIBIT "A" Master Lease Agreement
EXHIBIT "B" Floor Plan
EXHIBIT "C" Office Furniture
