Exhibit 10.9
AGREEMENT OF SUBLEASE
AGREEMENT OF SUBLEASE (this "AGREEMENT OF SUBLEASE") made as of the 7th day
of March, 2003 (the "EFFECTIVE DATE"), by and between, Optium, Inc., with
offices at 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000 ("SUBLESSOR") and
Quantum 3D, Inc. with offices at 0000 Xxx Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000
("SUBLESSEE").
WITNESSETH:
WHEREAS, Sublessor is the Lessee under a certain Discovery Lake Office
Lease Agreement dated December 28, 2000 shown in Exhibit "A" (the "LEASE"), with
SV CENTRAL FLORIDA PHASE II LIMITED PARTNERSHIP as Lessor;
WHEREAS, Sublessee desires to occupy a portion of the space covered by the
Lease, as hereinafter set forth;
NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. SUBLEASED PREMISES.
Sublessor hereby sublets to Sublessee, and Sublessee hereby hires and
takes from Sublessor the premises, known as DISCOVERY LAKE COMPLEX, 2721
Discovery Drive, part of Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 consisting of
approximately 8,500 rentable square feet as shown on Exhibit B (the "SUBLEASED
PREMISES"). Sublessor believes that the Subleased Premises contains 8,500
rentable square feet as determined pursuant to the Standard Method for Measuring
Floor Area in Office Buildings published by the Building Owners and Managers
Association International ("BOMA") as revised and readopted June 7, 1996 (the
"STANDARD MEASURE"), Sublessee reserves the right to measure the Subleased
Premises to confirm that the measurement provided by Sublessor is accurate and
conforms to the Standard Measure. Any discrepancy shall be promptly resolved by
the parties through good faith negotiations and, if relevant, all items in this
Sublease which are based upon the square footage of the Subleased Premises (e.g.
Base Rent) shall be promptly adjusted in proportion to the change in square
footage.
2. TERM OF SUBLEASE.
Subject to the prior delivery of Lessor's consent as required under
this Agreement, the term of this Sublease shall commence ("COMMENCEMENT DATE")
on the later of (i) the 15th day of March, 2003, and (ii) delivery of possession
of the Subleased Premises to the Sublessee and shall end the 14th day of June,
2006 (the "INITIAL TERM") or the earlier termination of this Agreement in
accordance with its terms. Provided Sublessee is not in default hereunder beyond
any applicable notice and cure periods, Sublessee may extend this Agreement of
Sublease upon one hundred and twenty (120) days written notice to Sublessor in
advance of the termination of the initial or extended term for two (2)
additional one (1) year terms; provided,
in the case of any second extended term, for a period expiring April 30, 2008
(the "EXTENDED TERM") at the same rental rates set forth herein for the final
year of the Initial Term.
3. THE LEASE.
(a) Sublessee acknowledges that it has reviewed and is familiar
with all of the terms, covenants and conditions of the Lease, a copy of which is
attached as Exhibit A hereto and made a part hereof. All of the terms, covenants
and conditions of the Lease are incorporated herein and made a part hereof as if
set forth herein at length except Sublessee is not responsible for any default
of payment of monthly base rent by Sublessor, as described in the Lease.
Sublessee assumes and agrees, except as otherwise provided herein, to perform,
observe and comply with all of the terms, covenants and conditions on the
Lessee's part to be performed, observed and complied with under the Lease as the
same may or shall relate to the occupancy of the Subleased Premises.
(b) Notwithstanding the foregoing, the following Sections of the
Master Lease are expressly excluded from this Sublease: Sections 1, 2 and 23(a);
Exhibit E, Sections 1, 2, and 3, Exhibit G and the Improvement Agreement; any
provisions in the Lease allowing or purporting to allow Sublessor any rent
concessions or abatements or construction allowances; and any provisions in the
Lease conferring upon Sublessor any rights, privileges, or options or
reservations in the Building except as may be provided herein.
(c) Without limiting the foregoing:
(i) If Sublessee desires to take any other action and the
Lease would require that Sublessor obtain the consent of Lessor before
undertaking any action of the same kind, Sublessee shall not undertake the same
without the prior written consent of Sublessor. Sublessor may condition its
consent on the consent of Lessor being obtained and may require Sublessee to
contact Lessor directly for such consent;
(ii) All rights given to Lessor and its agents and
representatives by the Lease to enter the Premises covered by the Lease shall
inure to the benefit of Sublessor and their respective agents and
representatives with respect to the Subleased Premises;
(iii) Sublessor shall also have all other rights, privileges,
options, reservations and remedies granted or allowed to, or held by, Lessor
under the Lease as same pertains to the Subleased Premises;
(iv) Sublessee shall maintain insurance of the kinds and in
the amounts required to be maintained by Sublessor under the Lease. All policies
of liability insurance shall name as additional insureds the Lessor and
Sublessor and any other parties required under the Lease; and
(d) Notwithstanding anything contained herein or in the Lease
which may appear to be to the contrary, Sublessor and Sublessee hereby agree as
follows:
(i) Neither rental nor other payments hereunder shall xxxxx
by reason of any damage to or destruction of the Subleased Premises, the
furniture described herein, the
premises subject to the Lease, or the Building or any part thereof, unless, and
then only to the extent that, rental and such other applicable payments actually
xxxxx under the Lease with respect to the Subleased Premises on account of such
event;
(ii) Sublessee shall not have any right to any portion of the
proceeds of any award for a condemnation or other taking, or a conveyance in
lieu thereof, of all or any portion of the Building, the premises subject to the
Lease or the Subleased Premises by virtue of this Agreement;
(iii) Sublessee shall not have any right to exercise or have
Sublessor exercise any option under the Lease, including, without limitation,
any option to extend the term of the Lease or lease additional space; and
(iv) In the event of any conflict between the terms,
conditions and provisions of the Lease and of this Agreement, the terms,
conditions and provisions of this Agreement of Sublease shall, in all instances,
govern and control.
(e) Nothing contained in this Agreement shall be construed to
create privity of estate or contract between Sublessee and Lessor, except the
agreements of Sublessee herein in favor of Lessor, and then only to the extent
of the same.
4. OCCUPANCY.
(a) Sublessee covenants that it will occupy the Subleased Premises
in accordance with the terms of the Lease and will not suffer to be done or omit
to do any act, which may result in violation of or a default under any of the
terms and conditions of the Lease, or render Sublessor liable for any charge or
expense. Sublessee further covenants and agrees to indemnify Sublessor against
and hold Sublessor harmless from any loss or liability arising out of by reason
of, or resulting from Sublessee's failure to perform or observe any of the terms
and conditions of the Lease pertaining to the Subleased Premises. Any other
provision in this Agreement to the contrary notwithstanding, Sublessee shall pay
to Sublessor as additional rent any and all sums which Sublessor may be required
to pay to its Lessor arising out of, by reason of, or resulting from Sublessee's
failure to perform or observe one or more of the terms and conditions of the
Lease pertaining to the Subleased Premises.
(b) Sublessee agrees that Sublessor shall not be required to
perform any of the covenants and obligations of Sublessor hereunder that are
required to be performed under the Lease by Lessor thereunder; Sublessee
acknowledges that Sublessor shall be entitled to look to Lessor for such
performance. Sublessor shall take such good faith action as may reasonably be
indicated, under the circumstances, to secure such performance upon Sublessee's
written request therefore, but in no event shall Sublessor be liable for
Lessor's failure to perform or shall Sublessee be entitled to a rent abatement
of any kind (except as provided in Section 3(d)(i) above). Such good faith
action shall be limited to: (a) upon Sublessee's request, immediately notifying
Lessor of its nonperformance under the Lease and request that Lessor perform its
obligations under the Lease and (b) permitting Sublessee to commence a legal
action in its own name to obtain the specific performance required from Lessor
under the Lease; provided, however, that Sublessee shall pay all reasonable
costs and expenses incurred in connection
therewith and Sublessee shall indemnify and hold Sublessor harmless against all
claims, losses, reasonable costs and expenses incurred by Sublessor in
connection therewith.
(c) If any event described in Paragraph 18 (Default and Remedies)
of the Lease shall occur in respect of Sublessee or the Subleased's Premises or
if Sublessee shall default in the payment of Base Rent or additional rent
hereunder or in the performance of observance of any of the terms, covenants or
conditions of this Agreement of Sublease or of the Lease on the part of
Sublessee to be performed or observed, Sublessor shall be entitled to the rights
and remedies herein provided or reserved by Lessor in the Lease.
5. RENT.
Sublessee shall pay to Sublessor rent according to the following rent
schedule ("BASE RENT"):
Effective Date through 3/14/03 Free Rent (the "Free Rent Period")
------------------------------ ----------------------------------
3/15/03-6/14/03 $17.01 per sf $12,048.75 per month
6/15/03-6/14/04 $17.42 per sf $12,339.17 per month
6/15/04-6/14/05 $17.84 per sf $12,636.67 per month
6/15/05-6/14/06 $18.27 per sf $12,941.25 per month
plus applicable Florida State Sales Tax of six and a half percent (6 1/2%). The
rates listed include monthly CAM charges, but exclude electric service.
The first month's Base Rent in the amount of $12,831.92 inclusive of
Florida State Sales Tax is due at the time of execution of this agreement; in
addition, a Security Deposit in the amount of $13,782.43, is to be paid at the
time this Agreement is executed.
All monthly Base Rent payments shall be due and payable in advance, without
demand, on or before the first day of each calendar month during the sublease
term. Base Rent payments shall be made payable to Optium, Inc. and sent directly
to the Sublessor at Optium, Inc., 000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxx, XX
00000, Attn: Xxxxxxx Xxxxxx, 000-000-0000 Suite 326.
Sublessee agrees to reimburse Sublessor within five (5) days of billing for
electric use, on the Subleased Premises which are paid directly by Sublessor for
the Subleased Premises. As long as Sublessor is paying for those services on a
master xxxx inclusive of the Subleased Premises, such billing shall be equitably
apportioned based on usage in the office space only as determined in good faith
by both parties. Sublessee agrees to pay for those services directly, if they
are ever separately metered or billed for the Subleased Premises.
Sublessee agrees to comply with all provisions of this
Agreement of
Sublease upon the Effective Date for the Free Rent Period except the payment of
Base Rent.
6. LATE PAYMENTS.
Sublessee recognized that late payment of any rent or other sum due
hereunder from Sublessee to Sublessor will result in additional expense to
Sublessor. Sublessee therefore agrees that if Base Rent or any other payment due
hereunder from Sublessee to Sublessor remains unpaid fifteen (15) days after
Sublessee receives written notice from Sublessor, the same is overdue, the
amount of such unpaid Base Rent or other payment shall be increased by a late
charge to be paid to Sublessor by Sublessee in an amount equal to five percent
(5%) per month of the delinquent amount.
7. SUBLESSOR'S IMPROVEMENTS.
All alterations, decorations, installations, additions or improvement
in or to the Subleased Premises shall be made at Sublessee's sole cost and
expense and shall comply with all of the terms and conditions of the Lease,
including, without limitation, the Improvement Agreement - Discovery Lake
attached to the Lease, except those listed below which shall be completed at
Sublessor's sole cost and expense (including any supervision fee charged by
Lessor pursuant to Section 6 of the Lease) prior to or during occupancy by
Sublessee:
(a) Any costs associated with separating the Sublessee's rented
space from the remaining tenants in the Building, which may be required at
anytime throughout the Initial or any Extended Term of this Agreement
(b) A wall and double or oversized door in the rear delivery area
to facilitate oversized deliveries.
(c) Door or wall separating the south end of the Sublessee's
usable space.
(d) Cover the windows into the lab area from the Sublessee's side
with a solid surface painted to match the wall color.
(e) Add kitchen sink and base cabinet in a room to the rear.
(f) Construction of a new telephone / computer server room located
near the south end of the usable space, with electrical service inside the room
and a 208 volt circuit outside the room.
(g) The source of all computer and telephone cabling to be made
available for installation to Sublessee's new equipment in the added server room
and left intact throughout the usable space.
8. FURNITURE
During the term of this Sublease, Sublessor shall permit Sublessee to
have the use of all of the cubicles and related office furniture currently
installed and located at the Subleased Premises, the components of which are
identified on Exhibit C attached hereto and incorporated herein by reference,
subject to the obligation and liability of Sublessee, at its sole cost and
expense, to maintain the cubicles and office furniture, throughout the term of
this Agreement, in
the same condition that such items are in at the time of execution of this
Agreement, and, at the expiration or earlier termination of this
Agreement of
Sublease or of the Lease, to deliver all of said cubicles and related office
furniture in the same condition that they now are, reasonable wear and tear
excepted, and to repair any damage to said cubicles and related office furniture
that may have occurred prior to the expiration or earlier termination of this
Agreement of Sublease or of the Lease. If Sublessee removes certain of the
cubicles, Sublessee shall be obligated to store the same and, prior to delivery
of the Subleased Premises to Sublessor at the expiration or earlier termination
of this
Agreement of Sublease or of the Lease, to reinstall the same, or if
Sublessee changes the configurations restore the same to the same configurations
that they were in at the time of execution of this Agreement.
9. CONDITION OF PREMISES; CONSTRUCTION OF IMPROVEMENTS; SURRENDER OF
PREMISES.
Except as provided herein, Sublessee hereby accepts the Subleased
Premises and the Building "AS-IS, WHERE IS, WITH ALL FAULTS." Sublessee
expressly acknowledges and agrees that neither Sublessor, nor any of its agents,
contractors or employees has made any representation or warranty whatsoever with
respect to the condition of the Subleased Premises or the Building or the
ability of Sublessee to use the Subleased Premises under applicable zoning or
building regulations, but if any such representations and warranties were made,
same are hereby expressly disclaimed by Sublessor and waived by Sublessee hereby
agreeing that it has not and will not rely upon same. Without limiting the
foregoing, Sublessee's taking possession of the Subleased Premises shall be
conclusive evidence as against Sublessor and Lessor that the Subleased Premises
and the Building were in good order and satisfactory condition when Sublessee
took possession and appropriate for Sublessee's intended uses
10. DEFAULT BY SUBLESSEE.
(a) Upon the happening of any of the following:
(i) Sublessee fails to pay any Base Rent within three (3)
days after Written notice that the same is overdue;
(ii) Sublessee fails to pay any other amount due from
Sublessee hereunder and such failure continues for five (5) days after notice
thereof from Sublessor to Sublessee;
(iii) Sublessee fails to perform or observe any other covenant
or agreement set forth in this Sublease Agreement and such failure continues for
fifteen (15) days after notice thereof from Sublessor to Sublessee; or
(iv) any other event occurs which involves Sublessee or the
Subleased Premises and which continues beyond all applicable notice and cure
periods and which would constitute a default under the Lease if it involved
Sublessor or the premises covered by the Lease;
Sublessee shall be deemed to be in default hereunder, and Sublessor may
exercise, without limiting any other rights or remedies available to it
hereunder or at law or in equity, any and all
rights and remedies of Lessor set forth in the Lease in the event of a default
by Sublessor thereunder.
(b) In the event Sublessee fails or refuses to make any payment or
perform any covenant or agreement to be performed hereunder by Sublessee (after
any applicable notice and grace period have been given and expired without
cure), Sublessor may make such payment or undertake to perform such covenant or
agreement (but shall not have any obligation to Sublessee to do so). In such
event, amounts so paid or expended in undertaking such performance, together
with all costs, expenses and attorneys' fees incurred by Sublessor in connection
therewith and interest on such amounts from the date when so paid or expended at
the Default Rate, shall be additional rent hereunder.
11. NONWAIVER.
Failure of Sublessor to declare any default or delay in taking any
action in connection therewith shall not waive such default. No receipt of
moneys by Sublessor from Sublessee after the termination in any way of the term
or of Sublessee's right of possession hereunder or after the giving of any
notice shall reinstate, continue or extend the term or affect any notice given
to Sublessee or any suit commenced or judgment entered prior to receipt of such
moneys.
12. CUMULATIVE RIGHTS AND REMEDIES.
All rights and remedies of Sublessor under this Agreement shall be
cumulative and none shall exclude any other rights or remedies allowed by law.
13. WAIVER OF CLAIMS AND INDEMNITY.
Sublessee hereby releases and waives any and all claims against Lessor
and Sublessor and each of their respective officers, directors, partners, agents
and employees for injury or damage to person, property or business sustained in
the Subleased Premises by Sublessee during the term of this Sublease Agreement
other than by reason of gross negligence or willful misconduct of Lessor or
Sublessor and except in any case which would render this release and waiver void
under law.
Sublessor shall not be released or indemnified from any damages,
liabilities, judgments, actions, claims, attorneys' fees, consultants' fees,
payments, costs or expenses arising from the gross negligence or willful
misconduct of Sublessor or its agents, contractors, licensees or invitees, or a
breach of Sublessor's obligations or representations under the Agreement of
Sublease.
14. SECURITY DEPOSIT
Sublessee has deposited with Sublessor upon the execution of this
Agreement of Sublease the sum of $13,782.43 Dollars as security for the faithful
performance and observance of this Agreement of Sublease including, but not
limited to, the payment of Base Rent and
additional rent. Sublessor may use, apply or retain the whole or any part of the
security so deposited to the extent required for the payment of any Base Rent
and additional rent or any other sum as to which Sublessee is in default or for
any sum which Sublessor may reasonably expend or may be required to expend by
reason of Sublessee's default in respect of any of the terms, covenants and
conditions of this Agreement of Sublease, including, but not limited to, any
damages or deficiency shall have accrued before or after summary proceedings or
other re-entry by Sublessor or Lessor. Sublessee agrees (a) to restore the
Security Deposit to its initial full amount upon any application of any part or
the whole thereof by Sublessor and (b) Sublessor's rights hereunder are
non-exclusive and cumulative with all rights and remedies of Sublessor under
applicable law and the Lease. Sublessor shall not be required to segregate such
Security Deposit nor pay interest thereon, unless required by applicable law. If
Sublessee shall fully and faithfully comply with all of the terms, provisions,
covenants and conditions of the Agreement, the Security Deposit shall be
returned (within fifteen (15) days) to Sublessee after the date fixed at the end
of this Agreement of Sublease and after delivery of the entire possession of the
Subleased Premises to Sublessor. Sublessee further covenants that it will not
assign or encumber or attempt to assign or encumber the monies deposited herein
as security and that neither Sublessor nor Sublessor's legal representatives,
successors or assigns shall be bound by any such assignment, encumbrance,
attempted assignment or attempted encumbrance.
15. EMINENT DOMAIN.
If the whole or any part of the Subleased Premises shall be taken or
condemned in any manner by and competent authority for any public or
quasi-public use, or if the Lessor under the Lease or Sublessor as Lessee
thereunder, shall terminate the Lease, in any such event, the term of this
Agreement of Sublease shall cease and terminate as of the date of vesting title
of such termination, as the case may be.
16. NO ASSIGNMENT OR SUBLETTING.
Sublessee, for itself, its successors and assigns, expressly covenants
that it shall not assign, mortgage or encumber this Agreement, nor sublet, nor
suffer or permit the Subleased Premises or any part thereof to be used by
others, without the prior written consent of Sublessor in each instance, which
consent shall not be unreasonably withheld. If this Agreement of Sublease be
assigned, or if the Subleased Premises or any part thereof be sublet or occupied
by any person, firm or corporation other than the Sublessee, Sublessor may,
after default by Sublessee, collect rent from the assignee, sub-tenant or
occupant and apply the net amount collected to the Base Rent and additional
rent, but no such assignment, subletting, occupancy, or collection shall be
deemed a waiver of this covenant or the acceptance of the assignee, sub-tenant,
or occupant a tenant, or a release of Sublessee from the future performance by
it of the covenants on the part of it herein contained.
17. QUIET ENJOYMENT.
Sublessor covenants and agrees with Sublessee that upon Sublessee
paying the Base Rent and additional rent and observing and performing all the
terms, covenants and conditions of Sublessee's part to be observed and performed
herein, Sublessee may appreciably
and quietly enjoy the Subleased Premises, subject, nevertheless, to the terms
and conditions of this Agreement of Sublease, to the lease and mortgages
mentioned in the Lease.
Sublessor shall pay the rental and expense amounts set forth in
Section 2 of the Lease.
18. INDEMNIFY.
Each party hereto does hereby indemnify the other, and agrees to hold
the other harmless, of and from any claim, damage, liability cost or expense,
including reasonable attorney's fee, which either may suffer or incur by reason
of the failure of the other to perform, observe and comply with any of the
terms, covenants and conditions of this Agreement of Sublease.
19. CONSENT OF LANDLORD UNDER LEASE.
This Agreement is executed subject to such right as the Lessor under
the Lease has to withhold consent in the manner and to the extent described in
Section 9 (Assignment and Subletting) of the Lease. In the event such consent is
not issued in a form satisfactory to the Sublessor and Sublessee within ____
days of the Effective Date, this Sublease Agreement shall be null and void.
20. BROKERAGE.
Neither Sublessor nor Sublessee has dealt with any broker or agent in
connection with the negotiation or execution of this Agreement, other than CB
Xxxxxxx Xxxxx and Xxxxxx & Associate - ONCOR International representing the
Sublessor, whose commission shall be paid by Sublessor pursuant to a separate
written agreement. In no event shall Lessor be liable for any leasing or
brokerage commission with respect to the negotiation and execution of this
Agreement of Sublease. Sublessor and Sublessee shall each jointly and severally
indemnify, defend and hold Lessor harmless from and against all costs, expenses,
attorneys' fees and other liability for commissions or other compensation
claimed by any broker or agent claiming the same by, through or under the
indemnifying party with respect to this Agreement.
21. NOTICES.
Any and all notices which are or may be required to be given pursuant
to the terms of this Agreement or the Lease shall be sent by Registered or
Certified Mail, Return Receipt Requested, to the parties hereto at their
respective addresses hereinabove set forth or to such other addresses as either
party shall give notice of in like manner; with a copy
If to Sublessor: Optium, Inc.
000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
000-000-0000 Ext. 326
And if to Sublessee: Quantum 3D, Inc.,
0000 Xxx Xxxxxxx Xxx.,
Xxx Xxxx, XX, 00000
Attn: Xxxxxx Xxxxxxxx, 000-000-0000
22. BINDING EFFECT.
The covenants, conditions and agreements contained herein shall be
binding upon and insure to the benefit of Sublessor and Sublessee and their
respective heirs, distributes, executors, administrators, successors, and
assigns, as permitted hereby.
23. WAIVER OF SUBROGATION.
The parties hereto, including Lessor by reason of its consent hereto,
release each other and their respective agents, employees, successors and
assigns from all liability for damage to any property that is caused by or
results from a risk which is actually insured against or which would normally be
covered by the standard form of "all risk" property insurance, without regard to
the negligence or willful misconduct of the entity so released. Each party shall
use its best efforts to cause each insurance policy it obtains to provide that
the insurer thereunder waives all right of recovery by way of subrogation as
required herein in connection with any damage covered by the policy.
24. SURRENDER.
In no event shall Sublessee's obligation to surrender the Subleased
Premises require Sublessee to repair or restore the Subleased Premises to a
condition better than the condition in which the Subleased Premises existed as
of the Commencement Date as modified by the improvements installed by Sublessor
under this Agreement of Sublease, Sublessee shall be responsible for repairing
and, upon surrender, restoring the Subleased Premises damaged during the term of
this Agreement. To the extent the Subleased Premises are not so restored upon
redelivery to Sublessor, Sublessor may so restore at Sublessee's expense and
store any personalty or fixtures of Sublessee at Sublessee's cost and expense
which sums shall be deemed additional rent payable hereunder.
25. ENTIRE AGREEMENT.
This Sublease Agreement contains all the terms, covenants, conditions
and agreements between Sublessor and Sublessee relating in any manner to the
rental, use and occupancy of the Subleased Premises. No prior agreement or
understanding pertaining to the same shall be valid or of any force or effect.
The terms, covenants and conditions of this Agreement cannot be altered,
changed, modified or added to except by a written instrument signed by Sublessor
and Sublessee.
26. AUTHORITY.
Each of Sublessor and Sublessee represents and warrants to the other
that this Agreement has been duly authorized, executed and delivered by and on
behalf of such party and constitutes the valid, enforceable and binding
agreement of such party.
27. EXAMINATION.
Submission of this instrument for examination or signature by
Sublessee does not constitute a reservation of or option for the Subleased
Premises or in any manner bind Sublessor, and no lease, sublease or obligation
on Sublessor shall arise until this instrument is signed and delivered by
Sublessor and Sublessee and the consent of Lessor is obtained as described
above; provided, however, that the execution and delivery by Sublessee of this
Agreement of Sublease to Sublessor shall constitute an irrevocable offer by
Sublessee to sublease the Subleased Premises on the terms and conditions herein
contained, which offer may not be revoked unless Sublessor fails to execute this
Agreement of Sublease within thirty (30) days after the date of such delivery by
Sublessee.
28. PARKING.
Subject to the provisions and conditions of Section 12(f) of the Lease
and provided that Sublessee is not in default of any of its obligations
hereunder, during the term of this Agreement, Sublessee shall have the rights
and privileges with respect to parking provided to Sublessor under Section 12(f)
of the Lease as applied to the Subleased Premises only, subject to payment and
performance by Sublessee of the obligations of Sublessor thereunder.
[SIGNATURE PAGE TO FOLLOW]
[LETTERHEAD]
February 5, 2003
This notice authorizes Xxxxxxxx Xxxxxxxxxx to execute the lease
agreement, as agreed and discussed by and between Xxxx Xxxxxx & Xxxxxx
Xxxxxxxx on March 5, 2003.
Please forward a copy of the executed lease to:
Xx. Xxxxxx Xxxxxxxx, CFO
Quantum3D, Inc.
0000 Xxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
If you have any questions, give me a call at (000) 000-0000.
Thank you,
Quantum3D, Inc.
/s/ Xxxx Xxxxx
Xxxx Xxxxx
President & CEO
et/CC
cc: Xxxxxxxx XxxXxxxxxx
IN WITNESS THEREOF, Sublessor and Sublessee have caused this Agreement of
Sublease to be executed by their duly authorized partner or officer as of the
day and year first written above.
SUBLESSEE:
WITNESSES: QUANTUM 3D, INC.
/s/ Xxxxxxx X. Xxxxxx By: /s/ [ILLEGIBLE]
------------------------------ -------------------------
Xxxxxxx X. Xxxxxx Its: VP
------------------------------ ------------------------
Print Name
Date: 3/6/03
------------------------------ -------------------------
------------------------------
Print Name
SUBLESSOR:
WITNESSES: OPTIUM, INC.
/s/ Xxxxx Xxxxxxx By: /s/ [ILLEGIBLE]
------------------------------ -------------------------
Xxxxx Xxxxxxx Its: CEO
------------------------------ ------------------------
Print Name
/s/ [ILLEGIBLE] Date: 3/7/03
------------------------------ -----------------------
[ILLEGIBLE] 03/07/03
------------------------------
Print Name [ILLEGIBLE] 3/7/03
LANDLORD:
WITNESSES: DISCOVERY LAKES, LLC
By:
------------------------------ -------------------------
Its:
------------------------------ ------------------------
Print Name
Date:
------------------------------ -----------------------
------------------------------
Print Name
Inventory of office equipment as of January 1, 2003 for Suite 300.
Small Cube area Small conf. room Large conf. room Entry Large cube area Break room
--------------------------------------------------------------------------------------------------------------------------
Tables and desks
Cubicles 7 23
Raindrop tables 4 10
Round wood top table 1
Long wood table 1
Large 2 person wood desk 1
Small round wood table 1
Corner desk
Round table
Red top tables 2
Chairs
Adjustable Black chairs 7
Fixed black chairs 3 5
Adjustable purple low back chairs 4
Adjustable mesh chairs 12 2 20
Fixed wire chairs 4
Fixed waiting chairs 6
Fixed multi colored chairs 8
Cabinets
2 drawer cabinet
3 drawer cabinet
5 drawer cabinet 7 18
Misc.
Trash can 0
Xxxxxx #0 Xxxxxx #0 Xxxxxx #0 Xxxxxx #0 Xxxxxx #0 Xxxxxx #0 Xxxxxx #0 Xxx xxxx Totals
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Tables and desks
Cubicles Only 30
Raindrop tables furniture 14
Round wood top table is a 1
Long wood table built in No No 1
Large 2 person wood desk wood furniture furniture 1
Small round wood table table top 1
Corner desk 1 1 1 1 1 with 5
Round table 1 1 1 1 1 drawers 5
Red top tables 2
Chairs
Adjustable Black chairs 7
Fixed black chairs 8
Adjustable purple low back chairs 4
Adjustable mesh chairs 1 1 1 1 1 39
Fixed wire chairs 3 3 3 3 3 19
Fixed waiting chairs 6
Fixed multi colored chairs 8
Cabinets
2 drawer cabinet 1 1 1 1 1 5
3 drawer cabinet 1 1 1 1 1 5
5 drawer cabinet 1 26
Misc.
Trash can 1
AMENDMENT ONE TO AGREEMENT OF SUBLEASE
THIS AMENDMENT TO AGREEMENT OF SUBLEASE (the "SUBLEASE"), made and entered into
by and between OPTIUM, INC. (hereinafter referred to as "SUBLESSOR") and
QUANTUM3D, INC. (hereinafter referred to as "SUBLESSEE")
WITNESSETH:
WHEREAS, Sublessor and Sublessee entered into that certain Agreement of Sublease
dated March 7, 2003 (the "SUBLEASE"), pertaining to the subletting of the
premises known as DISCOVERY LAKE COMPLEX, 2721 Discovery Drive, part of Xxxxx
000, Xxxxxxx, Xxxxxxx 00000 (the "BUILDING") consisting of approximately 8,500
square feet of rentable office area of the building as shown on Exhibit B (the
"SUBLEASED PREMISES") of the Agreement of Sublease, on the conditions and for
the terms and the rental rate set forth therein;
NOW THEREFORE, the parties hereto mutually agree that said Sublease shall be
amended in accordance with the following:
A.) The Term, as provided in Section 2 of the Sublease, which is scheduled to
expire June 15, 2006, shall be extended for twenty-two and half (22.5)
additional, successive months thus expiring April 30, 2008.
B.) The Base Rental, as provided in Section 5 of the Sublease, shall be
modified in accordance with the following:
For the period beginning on June 15, 2006 through April 30, 2008 the
monthly Base Rental shall be TWELVE THOUSAND NINE HUNDRED FORTY-ONE and
25/00 Dollars ($12,941.25) being at a rate of ONE HUNDRED FIFTY FIVE
THOUSAND TWO HUNDRED NINETY FIVE and 00/00 Dollars ($155,295) per annum.
C.) In accordance with Section 7 of the Sublease, Sublessee has the right at
their sole cost and expense to make alterations, decorations,
installations, additions or improvements in or to the Subleased Premises
including but not limited to the following:
- adding, changing, eliminating or combining offices
- modifying the power and/or HVAC to accommodate the use of computer
equipment
- modifying the curved wall
- modifying the conference rooms
- modifying the lighting
- modifying the bathrooms
D.) In the event the terms and provisions of this Amendment conflict with any
terms and provisions of the Sublease, this Amendment shall control.
E.) Capitalized terms used herein, unless otherwise defined herein, shall have
the same meaning as defined in the Sublease.
F.) All other terms and conditions of the Sublease shall remain in full force
and effect unless expressly modified herein.
IN WITNESS WHEREOF, the parties hereto have set their hands and signatures this
24th day of April, 2006.
SUBLESSOR: OPTIUM, INC.
Illegible 4/24/06 BY: /s/ Xxxxx Xxxxxx
------------------------ ------------------------------
Witness Xxxxx Xxxxxx
AS ITS: Chief Finpcial Officer
DATE: 4/24/06
-----------------------------
SUBLESSEE: QUANTUM3D, INC.
Illegible BY: /s/ Xxx Xxxx
------------------------ ------------------------------
Witness Xxx Xxxx
AS ITS: Chief Financial Officer
DATE: 4/19/06
-----------------------------
