Exhibit 10.1


 


SUBLEASE AGREEMENT


 


THIS SUBLEASE AGREEMENT (“Sublease”) is entered into this 2nd
day of March 2005, by and between UCN, INC., a Delaware corporation fka
BUYERS UNITED, INC. (“Sublessor”), and 1-800 CONTACTS, INC., a Delaware
corporation (“Sublessee”), with reference to the following:


 


A.                                   Sublessor, as tenant, is party to that
certain Commercial Lease dated September 11, 1996, with 13751 S. WADSWORTH
PARK DR., LLC, a Delaware limited liability company, as landlord (“Commercial
Lease”), for the lease of the entire second floor (commonly known as Suite 200)
of Building D located at 13751 South Wadsworth Park Drive, Draper, Utah 84020 (“Premises”),
as more particularly described in the Prime Lease.


 


B.                                     The Commercial Lease has been amended by (i) the
First Amendment to Lease, dated October 24, 1996, (ii) the Second
Amendment to Lease, dated November 1, 1998, (iii) the Assignment
Amendment and Release Agreement, dated December 6, 2002, and (iv) the
Lease Renewal letter agreement, dated October 26, 2004 (the Commercial
Lease and all of its amendments are collectively referred to as the “Prime
Lease”).  A copy of the Prime Lease
is attached hereto as Exhibit ”A” and made a part hereof.


 


C.                                     Sublessor and Sublessee have agreed that
Sublessor shall sublet to Sublessee, and Sublessee shall sublease from
Sublessor, the Premises in accordance with the terms of this Sublease.


 


FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of
which are hereby acknowledged, Sublessor and Sublessee hereby covenant and
agree as follows:


 


1.                                       Definitions.  Unless otherwise indicated
herein, all capitalized terms used in this Sublease shall have the definitions
assigned to them in the Prime Lease.


 


2.                                       Premises.  Sublessor hereby leases to
Sublessee, and Sublessee leases from Sublessor, approximately 14,399 square
feet of space, comprising all of the Premises.


 


3.                                       Term.  The term (“Term”) of
this Sublease shall commence on March 15, 2005 (“Commencement Date”),
and shall end on May 4, 2008, unless sooner terminated pursuant to this
Sublease or the Prime Lease.  The Term
shall be extended for an additional two year period upon Sublessee’s written
notification to Sublessor prior to November 4, 2007 that Sublessee desires
to extend the Term hereof.  Upon such
extension of the Sublease, the terms of the Prime Lease and this Sublease shall
continue in full force and effect, including, for example, the rental
obligations as set forth in the Lease Renewal letter agreement dated October 26,
2004.


 


4.                                       Rent.  Sublessee shall pay to
Sublessor, as monthly rent (“Rent”) for the Premises, in advance on the
first day of each and every month during the term hereof beginning on April 1,
2005, without deduction or offset, the amount equal to the Base Rent set forth
in the Prime Lease (as adjusted thereunder, including as set forth in the Lease
Renewal letter agreement dated October 26, 2004).  In addition, Sublessee will pay Sublessor
$5,250 for the portion of the rental period beginning on the Commencement Date
and extending through March 31, 2005. 
All Rent shall be paid by Sublessee to Sublessor in lawful money of the
United States of America, in


 





















 


immediately available funds, without notice or
demand, at the address for Sublessor set forth below.  Sublessee shall pay to Sublessor, when due, all
Additional Rent (as defined in the Prime Lease) during the Term including, but
not limited to:  (i) all charges for
utilities of any nature incurred at the Premises; and (ii) all real estate
taxes imposed on the Premises; and (iii) the annual installments due under
any general or special assessment created and imposed as the result of the
business conducted on the Premises; (iv) all personal property taxes
assessed against personal property situated on the Premises, and (v) CAM.


 


5.                                       Use.  The Premises shall be used solely for uses permitted by the Prime Lease.


 


6.                                       Late Fees and Interest.  All
installments of Rent which are not paid by Sublessee to Sublessor within fifteen
(15) days after the same is due (“Delinquency Date”) shall bear interest
from and after the due date until paid at a rate equal to the lesser of fifteen
percent (15%) per annum or the highest legal rate of interest.  In addition to the foregoing, Sublessee shall
also be responsible for the costs and reasonable attorneys’ fees incurred as a
result of the late payments or non-payments as provided for in the Prime Lease.


 


7.                                       Alterations.  Sublessee shall not make any
alterations, additions, or improvements in excess of $1,000 to the Premises
without Landlord’s prior written consent, which shall not be unreasonably
withheld or delayed.  Any alterations to
or upon the Premises shall be made by sublessee at sublessee’s sole cost and
expense and any contractor selected by sublessee to make the same shall be
subject to Landlord’s reasonable approval.


 


8.                                       Compliance with Laws.  In
connection with the operation of Sublessee’s business in the Premises,
Sublessee shall comply with all applicable governmental laws, statutes, rules,
regulations, orders and ordinances.


 


9.                                       Liens.  Sublessee shall not permit the
lien of any contractor, subcontractor, mechanic, materialman, laborer,
architect or any other person or entity arising out of work, material or
services performed or supplied or contracted for by Sublessee, or those
claiming by, through or under it, to be or remain a lien upon the Premises.  Sublessee shall indemnify, defend and hold
Sublessor and the Premises harmless from any such lien.


 


10.                                 Condition of Premises.


 


(a)                                  Sublessee
represents to Sublessor that Sublessee has been given the opportunity to
inspect the Premises prior to the execution and delivery of this Sublease and
has found the same to be satisfactory for all purposes hereunder and, Sublessee
accepts the Premises in, their “As Is”, “Where Is” condition, subject to all
legal requirements, and any state of facts which an accurate survey or physical
inspection of the Premises might show, without warranties, either express or
implied, and “with all faults”, including but not limited to both latent and
patent defects.  Sublessee hereby waives
all warranties, express or implied, regarding the title, condition and use of
the Premises, including, but not limited to any warranty of merchantability or
fitness for a particular purpose.


 


(b)                                 Sublessor
represents to Sublessee that Sublessor will leave in good operating condition
the generator system, powering system, cooling systems, structural cabling


 


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systems
and computer room flooring.  Sublessor
further represents to Sublessee that the Premises will be left in clean and
good working condition.


 


11.                                 Prime Lease.  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 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 Sublessee were the tenant under the Prime Lease.  Sublessee shall have no right to exercise, and
Sublessor shall have no obligation to exercise, any options available to
Sublessor under the Prime Lease or any rights of control or termination under
the Prime Lease.  Sublessee shall neither
do nor permit anything to be done which would cause the Prime Lease to be
terminated or forfeited by reason of any right of termination or forfeiture
reserved or vested in Sublessor under the Prime Lease, and Sublessee shall
indemnify and hold Sublessor and Landlord harmless from and against all claims
of any kind whatsoever by reason of any breach or default on the part of
Sublessee by reason of which the Prime Lease may be terminated or
forfeited.  Sublessee represents that it
has read and is familiar with the terms of the Prime Lease.


 


12.                                 Maintenance.  Sublessee covenants and
agrees, at its own expense, to maintain the Premises in accordance with the
terms of the Prime Lease.


 


13.                                 Insurance.


 


(a)                                  Sublessee waives all claims against Sublessor
for damage to property in, upon or adjoining the Premises, and for injuries to
persons in or about said Premises from any cause arising at any time during
Term, if not attributable to the gross negligence or willful misconduct of
Sublessor.  Sublessee, at its sole costs
and expense, shall maintain throughout the Term insurance in accordance with
the terms of the Prime Lease.  Sublessee
shall be responsible for the payment of all deductibles in connection with any
and all claims under such insurance policy or policies.


 


(b)                                 Said policies of insurance shall: (i) name
Sublessor as one of the insureds thereunder, (ii) be maintained at
Sublessee’s sole cost and expense; and (iii) contain a clause or
endorsement to the effect that the policy may not be terminated or materially
amended except after 30 days written notice thereof to Sublessor.  Within 30 days of the date of this Sublease,
Sublessee shall deliver copies of said policies or certificates of insurance to
Sublessor.


 


(c)                                  Sublessee agrees to indemnify, defend and
hold harmless Sublessor from and against any and all claims, demands, causes of
action, costs, losses or expenses, including reasonable attorneys’ fees and
other legal expenses, or other liabilities for damage to property or injury to,
harassment of, or death of any person (including any servant, agent or employee
of Sublessee, and any servant, agent or employee of any third party hired or
retained by Sublessee) arising out of or in consequence of Sublessee’s use of
the Premises, the operation of Sublessee’s business on the Premises (including
any contamination of the Premises or any other property resulting from the
presence or use of hazardous material caused or permitted by Sublessee), or any
other acts or omissions of the Sublessee or any third party hired or retained
by Sublessee (or any servant, agent or employee of any of them).  Sublessee’s obligations hereunder shall
survive the expiration or earlier termination of this Sublease.


 


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14.                                 Default.  Each of the following events
shall constitute a default by Sublessee under this Sublease: (i) Sublessee’s
failure to pay rent; (ii) Sublessee’s failure to pay any other sums to be
paid by Sublessee hereunder (and not constituting rent), within 10 days after
the respective due date thereof; (iii) Sublessee shall commit or allow to
continue any other breach of this Sublease, which shall not have been cured
within 20 days after written notice from Sublessor specifying the breach;
provided, however, that if the breach cannot be cured within 20 days, Sublessee
shall not be in default if, within such 20 day period, Sublessee shall have
commenced to cure said breach and shall continue its efforts with due
diligence; (iv) Sublessee shall file, or a third party shall file against
Sublessee, a petition in bankruptcy, liquidation, dissolution or reorganization
that remains undismissed for 60 days; (v) Sublessee shall make a general
assignment for the benefit of all creditors of Sublessee, or (vi) any
Event of Default under the Prime Lease.


 


15.                                 Remedies.  Upon the occurrence of a
default, Sublessor has the right to use any of the remedies below:


 


(a)                                  Terminate this Sublease and thereupon
re-enter and take possession of the Premises by any means provided by law;


 


(b)                                 From time to time, without terminating this
Sublease, re-enter (by any means provided by law) and relet the Premises for
the account of Sublessee, upon such reasonable terms and conditions as
Sublessor may deem advisable or satisfactory, in which event rents received for
such reletting shall be applied first to the expense of such reletting
(including necessary renovations to return the Premises to a condition
equivalent to that of their original condition) and thereafter toward payment
of all sums due or to become due Sublessor hereunder.  If a sufficient sum shall not be realized or
secured from such reletting to pay such sums and other charges, Sublessee shall
pay Sublessor any deficiency on a monthly basis.  Sublessor shall not, in any event, be
required to pay Sublessee any surplus of any sums received by Sublessor on a
reletting of the Premises in excess of the amounts due from Sublessee as
provided in this Sublease, but all such excess shall become the property of
Sublessor;


 


(c)                                  Continue this Sublease in full force and
effect to the end of the term, notwithstanding the occurrence of such default,
and enforce, by all proper and legal means, Sublessor’s rights herein,
including the monthly collection of rent and other amounts due, including
without limitation, late payment fees and interest on the amounts due under
this Sublease;


 


(d)                                 Pursue any other remedy available to Landlord
under the Prime Lease; or


 


(e)                                  Pursue any other remedy available at law or
equity.  All remedies provided in this
Sublease shall be cumulative and nonexclusive.


 


16.                                 Surrender.  Upon the expiration or earlier
termination of this Sublease, Sublessee shall deliver the Premises to Sublessor
in the same condition as of the date hereof, reasonable wear and tear
excepted.  Sublessee shall reimburse
Sublessor for and indemnify Sublessor against all damages which Sublessor
incurs from Sublessee’s delay in vacating the Premises.


 


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Sublessee’s obligations hereunder shall survive the
expiration or earlier termination of this Sublease.


 


17.                                 Holdover.  In the event Sublessee holds
over, following the expiration or termination of this Sublease, Sublessee shall
be deemed to be occupying the Premises as a month-to-month tenant, and shall
pay as rent a sum equal to (i) one hundred twenty-five percent (125%) of
the Rent and (ii) such other charges as are payable hereunder, pro-rated
on a monthly basis.  In no event shall
such holding over be deemed to create a tenancy from year-to-year nor shall
either Sublessor or Sublessee have the right to create such a tenancy.


 


18.                                 Effective Date. 
Sublessor and Sublessee acknowledge that Sublessor’s right to sublet the
Premises to Sublessee is subject to Sublessor first obtaining the consent of
Landlord, accordingly, this Sublease shall not become effective and shall be of
no force and effect, and the Term shall not commence, until such consent is
obtained.


 


19.                                 Assignment; Subletting. 
Sublessee shall not assign this Sublease nor sublet the Premises, in
whole or in part, without Sublessor’s prior written consent, which shall not be
unreasonably withheld or delayed, and shall not permit Sublessee’s interest in
this Sublease to be vested in any third party by operation of law or otherwise.


 


20.                                 Attorneys’ Fees.  In
the event either Sublessor or Sublessee commences litigation to enforce any of
the terms and conditions of this Sublease, the unsuccessful party to such
litigation shall pay, within 10 days of the date when any judgment of any court
of competent jurisdiction shall have become final and all rights of appeal
therefrom have expired, all costs and expenses, including reasonable attorneys’
fees incurred therein by the successful party (which costs and expenses shall
be included in the amount of the judgment).


 


21.                                 Notices.  All notices, requests,
demands,  and other communications
hereunder shall be in writing and shall be given by: (i) established
express delivery service which maintains delivery records; (ii) hand
delivery; or; (iii) certified or registered mail, postage prepaid postage,
return receipt requested, to the parties at the following addresses, or at such
other address as the parties may designate by written notice in the above
manner:


 


	
  To
  Sublessor:

  	
   

  	
  UCN, Inc.

  
	
   

  	
   

  	
  14870 Pony
  Express Road

  
	
   

  	
   

  	
  Bluffdale,
  UT 84065

  
	
   

  	
   

  	
  Attention:
  David R. Grow

  
	
   

  	
   

  	
  Fax:
  888.888.9115

  
	
   

  	
   

  	
  Voice:
  801.715.5270

  
	
   

  	
   

  	
   

  
	
  To
  Sublessee:

  	
   

  	
  1-800
  CONTACTS, INC.

  
	
   

  	
   

  	
  66 East
  Wadsworth Park Drive

  
	
   

  	
   

  	
  Draper, Utah
  84020

  
	
   

  	
   

  	
  Attention:
  Corporate Controller

  
	
   

  	
   

  	
  Fax:
  801.924.9605

  
	
   

  	
   

  	
  Voice:
  801.858.2114

  



 


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Communications may also be given by fax, provided the communication is
concurrently given by one of the above methods. 
Notices are effective upon receipt, or upon attempted delivery if
delivery is refused or if delivery is impossible because of failure to provide
a reasonable means for accomplishing delivery. 
Rent shall be paid to Sublessor at the address set forth in this
paragraph.


 


22.                                 Sublessor’s Default.  In
the case of a default, Sublessor shall commence promptly to cure such default
immediately after receipt of written notice from Sublessee specifying the nature
of such default and shall complete such cure within twenty (20) days
thereafter, provided that if the nature of the default is such that it cannot
be cured within such twenty (20) day period, Sublessor shall have such
additional time as may be reasonably necessary to complete its performance so
long as Sublessor has proceeded with diligence since its receipt of Sublessee’s
notice and is then proceeding with diligence to cure such default.  If Sublessor shall default under the Prime
Lease, Sublessee shall have the right, but not the obligation, to cure such
default.


 


23.                                 General Provisions.


 


(a)                                  Commissions. 
Sublessor and Sublessee each hereby represents and warrants to the other
that it has not entered into any contracts whatsoever with any brokers or finders
or in any manner obligated itself to pay any real estate commission or finder’s
fee on account of this transaction.  In
connection with the foregoing, each Party hereby agrees to indemnify and hold
the other harmless from any claim arising out of or related to a breach by such
Party of its representations and warranties herein contained.


 


(b)                                 Relationship of the
Parties.  Nothing herein shall be deemed or construed
by the parties or by any third party as creating the relationship of principal
and agent or of partnership or of joint venture between the parties, it being
understood and agreed that no provision herein, nor any acts of the parties,
shall be deemed to create any relationship between the parties other than the
relationship of landlord and tenant.


 


(c)                                  Headings.  The
headings of the Sections contained herein are for convenience only and do not
define, limit, or construe their contents.


 


(d)                                 Right of Entry. 
Sublessor hereby reserves the right for itself, and its duly authorized
agents and representatives, at all reasonable times and upon prior written
notice to Sublessee, to enter upon the Premises for the purpose of inspecting
the same and showing the same to any prospective tenant, purchaser or
encumbrancer, and for all other reasonable purposes.  Nothing contained herein shall imply or
impose any duty on Sublessor to inspect the Premises.


 


(e)                                  Merger.  All prior understandings and
agreements between Sublessor and Sublessee are merged within this Sublease,
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 a signed written agreement.


 


(f)                                    Waiver.  No waiver of any breach hereof
by either Party shall be considered to be a waiver of any other or subsequent
breach.


 


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(g)                                 Survival.  Sublessee’s obligations under
Sections 4, 6, 8, 9, 11, 13, 16, 17 and 20 shall survive the expiration or
earlier termination of this Sublease.  All other provisions of this Sublease that
would normally survive shall survive the expiration or earlier termination of
this Sublease.


 


(h)                                 Authority.  The
individuals who execute this Sublease represent and warrant that they are duly
authorized to execute this Sublease on behalf of Sublessor or Sublessee, as the
case may be, that the parties named are all the necessary and proper parties,
and that no other signature, act or authorization is necessary to bind such
entity to the provisions of this Sublease.


 


(i)                                     Successors and Assigns.  The
covenants and agreements herein contained shall bind and inure to the benefit
of Sublessor and Sublessee, and their respective executors, administrators,
successors and assigns.


 


(j)                                     Governing Law.  This
Sublease shall be governed by and interpreted in accordance with the laws of
the State of Utah.


 


(k)                                  Counterparts.  This
Sublease may be executed in any number of counterpart originals, each of which
shall be deemed an original instrument for all purposes, but all of which shall
comprise one and the same instrument. 
This Sublease may be delivered by facsimile.


 


24.                                 Security Deposit.  Simultaneously
with the execution of this Sublease, Sublessee shall deposit with Sublessor the
sum of $10,000.00 as a security deposit (“Security Deposit”), which
shall be considered as security for the payment and performance of the
obligations, covenants, conditions and agreements of Sublessee contained
herein.  Sublessor may, without prejudice
to any other remedy, use the Security Deposit to the extent necessary to remedy
any default in the payment of Rent or Additional Rent or to satisfy any other
obligation of Sublessee hereunder, and Sublessee shall promptly, on demand,
restore the Security Deposit to its original amount.


 


25.                                 Sublessor’s Rent Obligations.  This
Sublease shall not become effective and shall be of no force and effect, and
the Term shall not commence, unless and until all of Sublessor’s rent and other
obligations as set forth under the terms of the Prime Lease are paid and
current up through the commencement of the Term.


 


26.                                 Sublease’s Right of Renegotiation. 
Subsequent to the execution of this Sublease, Sublessee shall have the
right to renegotiate and enter into a new lease arrangement regarding the
Premises, among other properties, with Landlord, and Sublessor shall cooperate
fully by taking any action requested of Sublessor by Lessor and/or Sublessee in
order to effect any renegotiated lease arrangement, including, for example, by
agreeing to terminate and/or assign this Sublease.


 


27.                                 Relocation Fee.  Upon
the Commencement Date of this Sublease, Sublessee shall pay to Sublessor the
sum of $75,000.00 to offset the costs and expenses to be incurred by Sublessor
in moving its business operations from the Premises; provided, however, that if
Sublessor’s representations set forth in paragraph 10(b) of this Sublease
are breached, then this


 


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$75,000 shall be reduced by the costs and expenses
incurred by Sublessee to remedy such breach.


 


 


IN WITNESS WHEREOF, the parties hereto have executed this Sublease as
of the dates below written to be effective as of the date first above written.


 


	
  SUBLESSOR:

  	
  SUBLESSEE:

  
	
   

  	
   

  
	
  UCN, INC., a Delaware corporation fka

  BUYERS UNITED, INC.

  	
  1-800 CONTACTS, INC., a Delaware

  corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
  Print Name:

  	
   

  	
   

  	
  Print Name: Brian W. Bethers

  
	
  Title:

  	
   

  	
   

  	
  Title: President and CFO

  
	
  Date:

  	
   

  	
   

  	
  Date: March 2, 2005

  
									



 


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CONSENT TO SUBLEASE


 


The
undersigned, as landlord under the Prime Lease, hereby grants its consent to
the sublease by UCN, Inc. of the Premises to 1-800 CONTACTS, INC.


 


DATED this           day
of                                  ,
2005.


 


 


	
   

  	
  13751 S. WADSWORTH PARK DR., LLC,

  a Delaware limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Print Name:

  	
   

  	
   

  
	
   

  	
  Its:

  	
   

  	
   

  
	
   

  	
  Dated:

  	
   

  	
   , 2005

  
								



 


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EXHIBIT A


TO


SUBLEASE AGREEMENT


 


(Prime Lease)


 


The Prime Lease referenced in the foregoing instrument is attached
hereto.