EXHIBIT 10.9
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT is made as of this 15th day of March, 1999 between N M
Holdings Inc formerly known as Nutrition Medical Inc (a Minnesota corporation),
hereinafter referred to as "Sublessor", and U-Ship Inc (a Utah corporation),
hereinafter referred to as "Sublessee".
WITNESSETH, WHEREAS:
Sublessor, as Tenant, entered into a lease with Caliber Development
Corp and/or assigns as Landlord, dated February 22, 1996 and amended on March
31, 1996 and again on August 5, 1996 leasing certain space containing
approximately 9,460 square feet in the building, located at 0000 00xx Xxxxxx
Xxxxx, Xxxxxxxx, Xxxxxxxxx (the "Building"), to which lease (hereinafter, the
"Prime Lease") reference is hereby made, and which is incorporated by reference
as if the same were herein set forth at length; and
Whereas Caliber Development Corporation, assigned its interest in the
Lease to Bass Lake Realty Corporation, a Minnesota corporation (the "Prime
Landlord"); and
The parties hereto have agreed that Sublessor shall sublet
approximately 9.460 square feet of such space to Sublessee;
NOW THEREFORE. the parties hereto hereby covenant and agree as follows:
1. Sublessor hereby subleases to Sublessee said 9,460 square feet, more
or less, of the space in said Building, as depicted on Exhibit "A" attached
hereto and made a part hereof, (the "Subleased Premises"), for a term of
thirty-two (32) months beginning April 1, 1999, and ending November 29, 2001,
unless sooner terminated in accordance herewith. Sublessee to pay to Sublessor a
Monthly Base Rent as follows:
Period Monthly Base Rent
4/l/99 - 8/31/2000 $5,687.00
9/l/2000 -11/29/2001 $5,971.25
plus any additional rent as set forth in paragraph 4 hereof, on the first day of
each and every month during the term hereof.
The Subleased Premises shall be used for the purpose of General
Office, Warehouse and Light Manufacturing, as outlined in the Prime Lease.
3. Sublessee shall not assign its interest in this Sublease nor further
sublet the Subleased Premises in whole or in part; and shall not permit its
interest in this Sublease to be vested in any third party by operation of law or
otherwise.
4. When Sublessor is charged for Additional Rent or other sums due
pursuant to the provisions of the Prime Lease, Sublessee shall be liable for all
of such additional rent or sums attributable to the Subleased Premises. Any rent
or other sums payable by Sublessee under this Article 4 shall be additional rent
and collectable as such. If Sublessor shall receive any refund
under the Prime Lease, Sublessee shall be entitled to the return of so much
thereof from Sublessor as shall be attributable to prior payments by Sublessee.
5. This Sublease is subject and subordinate to the Prime Lease. Except
as may be inconsistent with the terms hereof, all the terms, covenants and
conditions contained in the Prime Lease shall be applicable to this Sublease
with the same force and effect as if Sublessor were the Landlord under the Prime
Lease and Tenant were the lessee thereunder, and in the case of any breach
hereof by Sublessee. Sublessor shall have all the rights against Sublessee as
would be available to the Landlord against the Tenant under the Prime Lease if
such breach were by the Tenant thereunder. A complete copy of the Prime Lease is
found in Exhibits "B" attached hereto and made a part hereof. Except as
otherwise set forth in this Sublease, Sublessee assumes and agrees to keep, obey
and perform all of the terms, covenants and conditions of Sublessor as Tenant
under the Prime Lease with respect to the Subleased Premises.
6. Notwithstanding, anything to the contrary herein set forth, the only
services or rights to which Sublessee may be entitled hereunder are those to
which Sublessor may be entitled under the Prime Lease.
7. Neither Sublessee nor Sublessor shall do or permit anything to be
done (including without limitation failure to make any payments when due) which
would cause the Prime Lease to be terminated or forfeited by reason of any right
of termination or forfeiture reserved or vested in the lessor under the Prime
Lease, and each party shall indemnify and hold the other harmless from and
against all claims of any kind whatsoever by reason of which the Prime Lease may
be terminated or forfeited by the indemnifying party's breach of this provision.
8. Sublessee has paid Sublessor on the execution and delivery of this
Sublease the sum of Four Thousand Five Hundred and 00/100 Dollars ($4,500.00) as
security for the full and faithful performance of the terms, covenants and
conditions of this sublease on Sublessee's part to be performed or observed,
including but not limited to payment of base rent and additional rent in default
or for any other sum which Sublessor may expend or be required to expend by
reason of Sublessee's default, including any damages or deficiency in reletting
the Subleased Premises. in whole or in part, whether such damages shall accrue
before or after summary proceedings or other re-entry by Sublessor or the Prime
Landlord. If Sublessee shall fully and faithfully comply with all the terms,
covenants and conditions of this sublease on Sublessee's part to be performed or
observed, the security, or any unapplied balance thereof, shall be returned to
Sublessee after the time fixed as the expiration of the demised term and after
the removal of Sublessee and surrender of possession of the Subleased Premises
to Sublessor.
9. The Sublessee agrees to accept the Sublease Premises in "as is'"
condition. Sublessee shall be responsible for the installation and cost of any
and all improvements, alterations or other work required on or to the Subleased
Premises or on or to any other portion of the property and/or building of which
the Subleased Premises are a part by the Americans With Disabilities Act of 1990
or any other applicable law, rule or regulation as a result of Sublessee's use
of the Subleased Premises. Sublessee shall make or install no other
improvements, alterations or work on or to the Subleased Premises or on or to
the property and/or building of which the Subleased Premises are a part without
the prior written consent Of Sublessor (which consent shall not be unreasonably
withheld) and Prime Landlord (to the extent such consent is required under the
Prime Lease).
10. Sublessee shall, during the term hereof, keep in full force and
effect, at its expense a policy or polices of public liability insurance with
respect to the Subleased Premises and the business of Sublessee, in which
Sublessee, Sublessor and Landlord shall be covered by being named as insured
parties under reasonable limits of liability not less than: $1,000,000 for
injury/death to any one person: $2,000,000 for injury/death to more than one
person, and $1,000,000 with respect to damage to property. Such policy or
policies shall provide that ten (10) days written notice must be given to
Sublessor and Landlord prior to cancellation thereof. Sublessee shall furnish
evidence satisfactory to Sublessor and Landlord at the time this Sublease is
executed that such coverage is in full force and effect.
11. Sublessee represents that it has read and is familiar with the
terms of the Prime Lease.
12. All prior understandings and agreements between the parties are
merged within this Agreement, which alone fully and completely sets forth the
understanding of the parties; and this Sublease may not be changed or terminated
orally or in any manner other than by an agreement in writing to which the
written consent of the Landlord under the Prime Lease shall have been obtained.
13. The Sublessee shall be responsible for payment of all utility costs
attributable to the Subleased Premises as outlined in the Prime Lease.
14. Sublessor shall not be liable for any non performance of or
noncompliance with or breach or failure to observe any term, covenant or
condition of the Prime Lease upon Prime Landlord's part to be kept, observed,
performed or complied with, or for any delay or interruption in Prime Landlord's
performing its obligations thereunder, provided that Sublessor shall cooperate
with Sublessee in assisting Sublessee in enforcing the terms of the Prime
Lease, to the extent provided below. Sublessor assigns unto Subtenant for so
long as this Sublease shall be in force and effect, any and all assignable
rights and causes of action which Sublessor may have against Prime Landlord with
respect to the Subleased Premises due to defaults by Prime Landlord under the
Prime Lease. Sublessor agrees to cooperate with and join with Sublessee in any
claims or stilts brought by Sublessee against Prime Landlord under the Prime
Lease, provided that such participation shall be without cost or expense to
Sublessor.
15. Sublessee will indemnify. defend and hold harmless Sublessor from,
and shall reimburse Sublessor for all costs and expenses, including reasonable
attorneys' fees incurred by Sublessor in connection with the defense of all
claims and demands or third persons, including but not limited to those for
death, personal injuries, or property damage, arising out of any default of
Sublessee in performing or observing any term, covenant, condition or provision
of this Sublease, or out of the use or occupancy of the Subleased Premises by
Sublessee, or out of any acts or omissions of the Sublessee, its agents.
representatives, employees, customers, guests, invitees or other persons who are
doing business with Sublessee or who are at the Subleased Premises with
Sublessee's consent. Sublessee, for itself and its insurers, hereby further
expressly waives all claims against Sublessor for any and all damages to
persons or property caused by or resulting from any thing or circumstance.
16. This Sublease shall terminate at the end of the Sublease term
hereof. Sublessee will peacefully and quietly vacate and surrender the Subleased
Premises to Sublessor at the expiration of this Sublease term, in the condition
called for under the Prime Lease. The existence of this Sublease is dependent
and conditioned upon the continued existence of the Prime Lease, and in the
event of the cancellation or termination of the Prime Lease, this Sublease
automatically shall be
terminated; provided, however, that this provision shall or be deemed to release
Sublessor of liability if the Prime Lease is canceled or terminated due to a
default by Sublessor as Tenant under the Prime Lease, which default did not
result in whole or in part from a default by Sublessee under this Sublease.
Sublessor agrees not to amend, alter or modify any of the provisions of the
Prime Lease affecting, Sublessee, or to surrender the Prime Lease, without
Sublessee's consent, which consent will not be unreasonably withheld or delayed.
Sublessor shall have no liability to Sublessee due to the termination of the
Prime Lease by reason of any default by Sublessee under this Sublease, or by
reason of any condemnation or destruction of the Subleased Premises.
17. If Sublessee defaults in its obligations under this Sublease,
Sublessor shall have all of the same rights and remedies against Sublessee as
would be available to the Prime Landlord against Sublessor if Sublessor were in
default under the Prime Lease, as fully as if such rights and remedies were set
forth in this Sublease.
18. This Sublease, and the obligations of Sublessor hereunder, is
contingent upon the consent of Prime Landlord hereto.
19. Any notice or demand which either party may or must give to the
other hereunder shall be in writing and delivered personally or sent by
certified mail, return receipt requested, addressed to Sublessor as follows:
N M Holdings. Inc
Xx. Xxxx Xxxxxxxxx
0000 Xxxxx Xxx Xxxx
Xxxxxxxx, XX 00000
with a copy thereof to the Landlord under the Prime Lease as follows:
Bass Lake Realty Corporation
c/o Sentinal Real Estate Corporation
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000-0000
and to Sublessee, as follows:
U-Ship Inc
Xx. Xxxxx Xxxxx
0000 00xx Xxxxxx Xxxxx
Xxxxxxxx. XX 00000
Either party may, by notice in writing, direct that future notices or demands be
sent to a different address.
20. The covenants and agreements herein contained shall bind and inure
to the benefit of Sublessor, Sublessee, and their respective heirs, executors,
administrators, successors and assigns.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
executed the date and year first above written.
SUBLESSEE: SUBLESSOR:
U-Ship Inc. N M Holdings Inc.
(a Utah corporation) formerly known as Nutrition Medical Inc.
(a Minnesota corporation)
BY: /S/ Xxxxxxx X. Xxxxxxx BY: /S/ Xxxx Xxxxxxxxx
ITS: V.P. Admin and Secretary ITS: Chief Operating Officer
DATE: 3/15/99 DATE: 3/15/99
CONSENT TO SUBLEASE
March 24, 1999
Nutrition Medical, Inc.
0000 00xx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxxx 00000
RE: Sublease Agreement dated March 15, 1999 ("Sublease") between Nutrition
Medical, Inc., a Minnesota corporation ("Tenant") and U-Ship, Inc., a
Utah corporation ("Subtenant")
Premises: Suite 120, consisting of approximately 9,460 square feet at
the Bass Lake Business Centre II, 0000 00xx Xxxxxx Xxxxx, Xxxxxxxx,
Xxxxxxxxx 00000
Gentlemen:
Reference is hereby made to your request for consent to the subletting
contemplated by the Sublease.
Subject to and contingent upon your consent to the Sublease, we hereby
consent to such subletting subject to the following understandings, agreements
and conditions:
1. Neither this consent nor the terms of the Sublease modifies,
amend, waives or affects any of the terms, covenants,
conditions, provisions or agreements of the lease between
Tenant and the undersigned's predecessor-in-interest dated
February 22, 1996, as amended on March 31, 1996 and August 15,
1996 ("Lease"), which Lease shall continue to apply to all the
space covered by the Lease and the use and occupancy thereof.
The Sublease is subject and subordinate at all times to this
consent and to the Lease and all of its terms, covenants,
conditions, provisions and agreements.
2. This consent shall not be construed to create a landlord-tenant
relationship or privity of contract or estate between the
undersigned and Subtenant.
3. Nothing contained herein shall be construed as a consent to,
approval of, or ratification by the undersigned of any of the
particular provisions of the Sublease or as a representation or
warranty by the undersigned in respect thereof. The undersigned
is not passing on the terms, covenants and conditions of the
Sublease and is not assuming any obligations under the
Sublease.
4. Neither the Sublease, nor this consent thereto shall be
construed as a consent by the undersigned to any further
subletting either by Tenant or by Subtenant.
5. If Tenant breaches any of the terms and provisions of the
Lease, the undersigned may elect to receive directly from
Subtenant all sums due and payable to Tenant by Subtenant
pursuant to the Sublease, and upon written notice from the
undersigned, Subtenant shall thereafter pay to the undersigned
any and all sums becoming due or payable under the Sublease.
Notwithstanding the foregoing, neither the giving of such
notice to Subtenant nor the receipt of such direct payments
from Subtenant shall cause the undersigned to assume any of
Tenant's obligations and/or liabilities under the Sublease,
nor shall such event impose upon the undersigned the
obligation to honor the Sublease nor subsequently to accept
Subtenant's attornment.
6. This consent is not assignable, nor shall this consent be a
consent to any amendment, modification, extension or renewal
of the Sublease, without the undersigned's prior written
consent.
7. Tenant and Subtenant agree to reimburse the undersigned, upon
demand, for any and all costs and expenses (including, without
limitation, attorney's fees and disbursements) incurred by the
undersigned in connection with the Sublease and any failure to
pay the same upon demand shall be a default under the Lease.
8. Tenant and Subtenant covenant and agree that under no
circumstances shall the undersigned be liable for any
brokerage commission or other charge or expense in connection
with the Sublease and both Tenant and Subtenant agree to
indemnify the undersigned, its directors, officers, agents,
shareholders and employees against same and against any cost
or expense (including, without limitation, attorney's fees and
disbursements) incurred by the undersigned, its directors,
officers, agents, shareholders and employees in resisting any
claim for any such brokerage commission.
9. If for any reason the term of the Lease shall terminate, the
Sublease shall automatically be terminated, and on or prior to
the date of such termination of the Sublease, Subtenant shall
quit and surrender the Premises to the undersigned in
accordance with all applicable provisions of the Lease.
10. Tenant shall be liable to the undersigned for any default
under the Lease, whether such default is caused by Tenant or
Subtenant or anyone claiming by or through either Tenant or
Subtenant, but the foregoing shall not be deemed to restrict
or diminish any right which the undersigned may have against
Subtenant pursuant to the Lease, in law or in equity for
violation of the Lease or otherwise, including, without
limitation, the right to enjoin or otherwise restrain any
violation of the Lease by Subtenant.
11. Subtenant agrees to promptly deliver a copy to the undersigned
of all notices of default and all other notices sent to Tenant
under the Sublease, and Tenant agrees to promptly deliver a
copy to the undersigned of all such notices sent to Subtenant
under the Sublease. All copies of any such notices shall be
delivered by United States registered or certified mail,
postage prepaid, return receipt requested, to Bass Lake Realty
Corp., c/o Sentinel Real Estate Corporation, 000 Xxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or to other such place
or persons as the undersigned or its agent may from time to
time designate.
12. The execution of this consent by Tenant and Subtenant shall
indicate their joint and several confirmation of the foregoing
conditions and their agreement to be bound thereby.
Very truly yours,
Bass Lake Realty Corp.
By: /S/Xxxxxxxxx X. Xxxxx
----------------------------------
(Title) Vice President
Confirmed and Agreed:
Nutrition Medical, Inc., a Minnesota corporation
By: /S/ Xxxx Xxxxxxxxx
----------------------------------
(Title) Chief Operating Officer
U-Ship, Inc., a Utah corporation
By: /S/ Xxxxxxx X. Xxxxxxx
----------------------------------
(Title) V.P. Admin & Secretary
