7
Exhibit No. 7
Form 10-SB
Cluster Technology Corp.
Sublease Agreement
This SUBLEASE AGREEMENT (this "Sublease Agreement") is made
and entered into as of the ______ day of January, 2000, by and
between QUICK DELIVERY SERVICE, INC., a Tennessee corporation
("Sublessor"), and UNIVERSAL PAIN TECHNOLOGY, INC., a Florida
corporation ("Sublessee").
WITNESSETH:
WHEREAS, Sublessor is lessee from FIRST INDUSTRIAL, L.P.
("Landlord") under a lease dated July 6, 1999, a copy of which
lease is attached hereto as Exhibit A (the "Main Lease"); and
WHEREAS, the real property leased by the Main Lease to
Sublessor is located at 0000 Xxxxx Xxxx, Xxxxx 00 0, Xxxxx,
Xxxxxxx 00000, and is more specifically described in the Main
Lease (the "Main Premises"); and
WHEREAS, Sublessor is desirous of subleasing all 11,063
square feet of the Main Premises set forth in Exhibit A hereto
(the "Premises") to Sublessee upon the terms and conditions
contained herein.
NOW, THEREFORE, in consideration of the premises, the
covenants and conditions hereinafter contained, and other good
and valuable consideration, it is mutually agreed by and between
the parties hereto as follows:
1. Sublessor hereby leases the Premises to Sublessee and
Sublessee leases the
Premises from Sublessor.
2. The Term of this Sublease shall commence on January 15,
2000 and shall end on July 31, 2002.
3. Sublessee shall pay directly to Sublessor the monthly
Base Rent of $5,070.54 plus Additional Rent and sales tax from
March 1, 2000 to July 31, 2000, of S5,248.00 plus Additional Rent
and sales tax from August 1, 2000 to July 31, 2001 and of
$5,431.69 plus Additional Rent and sales tax from August 1, 200 1
to July 31, 2002, which shall be paid in advance and which shall
be due on the first of each month as specified in the Main Lease.
The monthly rent is subject to adjustment in accordance with the
terms of the Main Lease. If the Term commences on any day other
than the first or ends on any day other than the last day of a
month, the rent shall be adjusted pro rata on a per diem basis.
Included in said monthly rent are other rental amounts, taxes and
assessments, maintenance fees and utilities specified in the Main
Lease. In no event shall Sublessor's rental obligations to
Landlord specified in the Main Lease be reduced or diminished.
Notwithstanding the foregoing, throughout the Term, Sublessee
shall pay, directly to
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the utility company furnishing same, all
charges for electric, gas, telephone and refuse collection to the
Premises.
4. Sublessee shall deliver to Sublessor at the time of
execution of this Sublease Agreement $10,141.08 to be held by
Sublessor as security for the full and faithful performance by
Sublessee of all the agreements, terms, covenants and conditions
set forth herein and applied against expenses or other costs or
damages incurred by Sublessor and to be payable as damages and
not as penalty, upon forfeiture, default or early termination
without prejudice to any further claims by Sublessor for damages
and any remedy for recovery thereof In the event Sublessee
observes and performs the terms and conditions of this Sublease
Agreement, such money shall be returned to Sublessee following
expiration of the Term or any renewals or extensions, as
applicable. Sublessor agrees to pay and restore to Landlord the
previous security deposit used by Sublessor to cover previous
unpaid rent.
5. Sublessee shall pay Sublessor interest on all Overdue
rent, all such interest to be calculated from the date upon which
the amount is first due hereunder until actual payment thereof
and at a rate being the lesser of five percent (5%) per annum in
excess of the minimum lending rate charged to prime commercial
borrowers by Sublessor's bank from time to time or the rate
permitted by law. All rent payable by Sublessee to Sublessor
shall be paid without deduction, set-off or abatement except as
herein expressly provided.
6. Sublessee shall use the Premises exclusively for the
purposes allowed by the Main Lease, and shall conduct its
business on the Premises within the same hours of operation as
Sublessor.
7. Sublessee hereby acknowledges that Sublessor is now
leasing the Premises from Landlord under the Main Lease, and the
parties hereto expressly agree that the Main Lease is
incorporated herein by reference as fully as if its terms and
provisions were herewith set forth in full. Capitalized terms
used herein and not otherwise defined shall have the meanings set
forth in the Main Lease. Except as modified herein, Sublessee
agrees to assume and be bound by all responsibilities and duties
as Sublessor has under the Main Lease. Except as modified herein,
Sublessee shall have the same rights and privileges as Sublessor
has under the Main Lease and Sublessor shall further have the
same rights and privileges as Landlord has under the Main Lease,
where applicable. Except as modified herein, Sublessee agrees to
fully indemnify and hold harmless Sublessor from any
responsibility or liability which Sublessor may incur under the
Main Lease by virtue of this Sublease Agreement or Sublessee's
occupancy of the Premises.
8. If Sublessee shall default in the payment when due of
the monthly rent, or in the payment of any other payment required
under the Main Lease or hereunder, or shall default in the
payment of any other obligations from Sublessee to Sublessor,
Sublessor or other agents and employees of Sublessor may, without
notice if said default is in the payment of rent or other
monetary obligations, or, if said default is any non-monetary
default, upon five (5) days written notice to Sublessee, during
which five (5) days such default is not corrected, terminate this
Sublease and/or immediately or at any time thereafter, reenter
the Premises and remove all persons and all or any property
therefrom. Removal may be either by summary dispossession
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proceedings or by any suitable action or proceeding at law, or by
force or otherwise, without Sublessor being
liable to indictment, prosecution or damages therefor, and
Sublessor may repossess, hold and enjoy the Premises, as the
former estate of Sublessor, together with all additions,
alterations and improvements thereto. Notwithstanding the above,
such recourse shall not be contrary to Florida law.
9. Sublessee shall name Sublessor and Landlord as
additional insureds under all of Sublessee's insurance policies
required to be obtained and maintained during the term of the
Sublease, including but not limited to liability, fire, workers'
compensation and such other forms of insurance as are required
under the terms of the Main Lease. Sublessee shall deliver copies
of all such policies or certificates of insurance to Sublessor
prior to execution of this Sublease Agreement in accordance with
the terms of the Main Lease.
10. Sublessee understands and agrees that this is a lease
of space only, and Sublessor assumes no liability for any of
Sublessee's property, including without limitation, any
destruction, damage or theft of the property while being stored
in the leased space. Sublessee represents and warrants that it
has adequate insurance to cover loss or destruction of its
property and that its insurance policy contains a waiver of
subrogation rights such that its 'insurance company (and any
other third party) shall not have any right of recovery for any
amount paid by such insurance company for damages for loss or
destruction to its property at the Main Premises. Sublessee
agrees to have its property damage insurance company waive any
right -to subrogation that it may have
against Sublessor. Sublessee agrees to indemnify and hold
Sublessor harmless from any damage, loss or injury resulting from
Sublessee's occupancy of the Premises, including without
limitation, any attorney's fees or other costs associated with
any claim or action involving the property or breach of the terms
of this Sublease. Notwithstanding the above, Sublessor must
maintain insurance in accordance with the Main Lease.
11. Sublessee shall indemnify and hold harmless Sublessor
from and against any and all claims arising from Sublessee's use
of the Premises, or from any activity, work, or thing done,
permitted or suffered by Sublessee in or about the Premises or
elsewhere and shall further indemnify and hold harmless Sublessor
from and against any and all claims arising from any breach or
default in the performance of any obligation on Sublessee's part
to be performed under the terms of this Sublease, or arising from
any negligence of the Sublessee, or any of Sublessee's agents,
contractors, or employees, and from and against all costs,
attorney's fees, expenses and liabilities incurred in the defense
of any such claim or any action or proceeding brought thereon;
and in case any action or proceeding be brought against Sublessor
by reason of any such claim, Sublessee upon notice from Sublessor
shall defend the same at Sublessee's expense by counsel
satisfactory to Sublessor. Sublessee, as a material part of the
consideration to Sublessor, hereby assumes all risk of damage to
property or injury to persons, in, upon or about the Premises
arising from any cause and Sublessee hereby waives all claims in
respect thereof against Sublessor.
12. This Sublease Agreement shall be binding upon and shall
inure to the benefit of the successors, assigns, executors and
administrators of the parties hereto.
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13. Any and all notices, designations, consents, offers,
acceptances or any other communication provided for herein shall
be given in writing by registered or certified mail which shall
be addressed to the parties as follows, or to such other address
as may be designated by said parties:
If to Sublessor, to: Quick Delivery Service,
Inc.
P. 0. Xxx 0000
Xxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxxx
If to Sublessee, to: Universal Pain
Technology, Inc.
0000 Xxxxx Xxxx, Xxxxx 000
Xxxxx, XX 00000
Attn: Xxx Xxxxxx
14. The invalidity or unenforceability of any particular
provision of this Sublease Agreement shall not affect the other
provisions hereof, and this Sublease Agreement shall be construed
in all respects as if such invalid or unenforceable provisions
are omitted.
15. No change or modification of the Sublease Agreement
shall be valid unless the same be in writing and signed by all of
the parties hereto.
16. This Sublease Agreement shall be interpreted under the
laws of the State of Florida.
IN WITNESS WHEREOF, the parties hereto have executed this
Sublease Agreement as of the day, month and year first written
above.
QUICK DELIVERY SERVICE, INC.
By:
Title:
UNIVERSAL PAIN TECHNOLOGY, INC.
By:
Title:
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CONSENT TO SUBLEASE AGREEMENT
THIS CONSENT TO SUBLEASE AGREEMENT ("Consent Agreement") is
made
as of this _______ day of __________ 2000 by and among FIRST
INDUSTRIAL L.P., a Delaware limited partnership (the "Landlord",
"Lessor" in attached Sublease), QUICK DELIVERY SERVICE, INC. (the
"Tenant", "Sublessor" in attached Sublease), and UNIVERSAL PAIN
TECHNOLOGY, INC. ("Subtenant", "Sublessee" in attached Sublease).
RECITALS:
WHEREAS, Landlord, as landlord, and Tenant, as tenant,
entered into that certain lease dated as of the 6th day of July,
1999, (the "Lease"), pursuant to which Landlord leased to Tenant
the leased premises described in the Lease ("Premises") and
commonly known as 0000 Xxxxx Xxxx, Xxxxx 000, Xxxxx, Xxxxxxx
00000;
WHEREAS, pursuant to that certain SUBLEASE AGREEMENT dated
_________________ attached hereto as Exhibit "A" and made a part
hereof (the "Sublease"), Tenant desires to sublease a certain
portion of the Premises to Subtenant (the "Sublease Premises"),
which Sublease Premises are more specifically described in the
Sublease; and Landlord agrees to permit such subletting under the
following terms and conditions;
NOW, THEREFORE, in consideration of the foregoing and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Recitals. The foregoing recitals are hereby incorporated
into the body of this Consent Agreement as if fully rewritten and
restated herein. Capitalized terms used, but not defined herein,
shall have the same meanings as are respectively ascribed to
those terms in the Lease.
2. Representations, Warranties and Covenants. Tenant and
Subtenant represent and warrant to Landlord that they have
delivered to Landlord a true and complete copy of the Sublease,
inclusive of schedules and exhibits, and that there are no other
agreements, written or oral, between Tenant and Subtenant with
respect to all or any portion of the Premises and Tenant' s
interest therein. Tenant and Subtenant hereby covenant and agree
that they shall not modify or amend the Sublease without
Landlord's prior written consent, which consent may be given or
withheld in Landlord's sole discretion. Tenant and Subtenant
represent, warrant and covenant to and with Landlord that the
term of the Sublease shall expire prior to the expiration date of
the Lease, and they shall not extend the term of the Sublease.
Subtenant further covenants and agrees that in the event that the
Lease is terminated prior to its stated expiration date due to a
default or breach by Tenant, then at Landlord's sole and
unilateral option, the Sublease shall be deemed to have
terminated simultaneously with the Lease.
3. Consent. Landlord hereby consents to Tenant's sublease
of the Sublease Premises to Subtenant, provided that Subtenant
agrees to be bound by, and comply with, all terms and conditions
of the Lease as if Subtenant was Tenant, except the obligation to
pay Rent due under the Lease. It is understood and agreed that
Tenant shall continue to pay Rent to Landlord,
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pursuant to the
requirements of the Lease, and Subtenant shall pay to Tenant
those payments due, from time to time, under the terms of the
Sublease; provided, however, that Tenant and Subtenant
acknowledge and agree that at any time and from time to time
after Tenant defaults under the Lease (subject to the applicable
notice and cure period, if any), Landlord may (but shall not be
obligated to) direct Subtenant to make all payments due under the
Sublease to Landlord, rather than Tenant. No such election by
Landlord shall constitute a waiver of any or all of its rights
and remedies against Tenant. In such event, payments timely
delivered to Landlord by Subtenant shall be deemed to satisfy
Subtenant's monetary obligations under the Sublease.
4. Waiver of Options. As a specific condition to the consent
herein granted by Landlord, Tenant shall agree to waive any and
all options contained within the Lease to expand the Premises, or
to extend the term of the Lease therefor.
5. Limitation on Consent. Landlord's above consent to the
Sublease does not and shall not diminish, or release Tenant from,
any or all of Tenant's obligations and liabilities under the
Lease; and Tenant shall continue to remain primarily liable for
the timely performance of all obligations required to be
performed by the Tenant under the Lease.
6. One-Time Consent. This consent does not and shall not
be deemed to constitute, or be construed as, consent to any
future sublease or assignment.
7. Acceptance of Premises. Subtenant accepts the Sublease
Premises in an "as-is," "where-is" condition, and acknowledges
and agrees that Landlord does not currently have, nor shall it
have, at any future date, any obligation, of any nature
whatsoever, to perform any improvements or alterations to or for
the benefit of the Sublease Premises and the Subtenant.
8. Compliance With Lease. Subtenant hereby agrees to be
bound by, and comply with, all of the obligations and
responsibilities imposed on Tenant, as tenant, under the Lease,
except the obligation to pay Rent.
9. Entire Agreement. This Consent Agreement, together with
the Lease and the Sublease, is intended by the parties to be a
complete and exclusive statement of the agreement and
understanding of the parties in respect of the subject matter
contained herein and therein. In the event of a conflict between
the terms and provisions of the Lease, on the one hand, and
either or both of the Sublease and this Consent Agreement, on the
other hand, the Lease shall control in all events.
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IN WITNESS WHEREOF, this Consent Agreement has been fully
executed and delivered as of the date set forth above.
LANDLORD:
FR Industrial, L.P.,
a Delaware limited partnership
By: First Industrial Realty Trust,
Inc.
a Maryland corporation, its
general partner
By:
____________________________________
XXXXXX X. XXXXX
Its: Regional Director
TENANT:
QUICK DELIVERY SERVICE, INC.
By:
______________________________
Signature
______________________________
Print
____________________________________
Title
SUBTENANT:
UNIVERSAL PAIN TECHNOLOGY,
INC.
By:
___________________________________
Signature
___________________________________
Print
____________________________________
Title
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