Exhibit 10.8
AGREEMENT OF SUBLEASE
AGREEMENT OF SUBLEASE (this "Agreement of Sublease") made as of the 17th
day of March, 2004 (the "Effective Date"), by and between Optium, Inc., with
offices at 0000 Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, XX 00000 ("Sublessor") and
VaxDesign, Inc. 0000 Xxxxx Xxxxxxxx Xx. Xxxxxxxxxx, 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 14,500 rentable square feet as shown on Exhibit B (the "Subleased
Premises"). Sublessor believes that the Subleased Premises contains 14,500
rentable square feet. AutoCAD architectural drawings of the subleased space
shown in Exhibit B shall be made available to VaxDesign for their approval.
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 May 15, 2004 and shall end the March 31, 2008.
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
Initials:
Sublessee: WLW Sublessor: PS Lessor: ____________
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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 agent 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 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
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Sublessee: WLW Sublessor: PS Lessor: ____________
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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 actions 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.
Initials:
Sublessee: WLW Sublessor: PS Lessor: ____________
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(c) If any event described in Paragraph 18 (Default and Remedies) of
the Lease shall occur in respect of Sublessee or the Subleased 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 the 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"):
Months 1-12 $12.50 PSF PER YEAR $15104.17 PER MONTH
Months 13-24 $13.00 PSF PER YEAR $15708.33 PER MONTH
Months 25-36 $13.50 PSF PER YEAR $16312.50 PER MONTH
Months 37-end $13.50 PSF PER YEAR $16312.50 PER MONTH
The rates listed above do not include monthly CAM charges, electric service or
janitorial service. Sublessee shall pay its share of the common area operating
expenses (CAM) based on square footage. CAM charges shall be calculated per the
master lease and shall be the same charge on a square foot basis as that of the
Sublessor. This charge will be calculated on a monthly basis and will be paid
monthly in addition to the Base Rent payments defined above. Florida State Sales
Tax of 6.5% shall also be paid on the total of the Base Rent and CAM charge on a
monthly basis.
The first month's rent in the amount of $15,104.17 (Base Rent) and
$5,365.00 (Projected CAM charge) plus Florida State Sales Tax of $1,330.50 shall
be due at the time of execution of this agreement; in addition, a Security
Deposit in the amount of $43,599.34 will be paid at the time this Agreement is
executed.
All monthly payments shall be due and payable in advance, without demand,
on or before the first day of each calendar month during the sublease term. 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: Xxxxxxxx Xxxxxx, 000-000-0000 Suite 326.
Sublessee agrees to reimburse Sublessor, within five (5) days after receipt
of Sublessor's xxxx for same, amounts paid directly by Sublessor for electric
use on 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 subleased 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 shall be responsible for janitorial service for the subleased
premises.
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Sublessee: WLW Sublessor: PS Lessor: __________
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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 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 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
(a) 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. Sublessor will complete these Sublessee improvements
according to Sublessee's specifications but at Sublessee cost.
(b) The source of all computer and telephone cabling to be made
available for installation to Sublessee's new equipment in the server room and
left intact throughout the usable space.
(c) Any cost associated with separating the Sublessee's space from the
remaining space in the building shall be at Sublessor's expense.
8. FURNITURE, TELEPHONE SYSTEM AND SECURITY SYSTEM
During the term of this Sublease, Sublessor shall permit Sublessee to
have the use of all of the office 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, through the
term of this Agreement, in the same condition that such items are in at the time
of execution of this Agreement. In the event of an early termination of this
Agreement of Sublease or of the Lease, Sublessee shall deliver to the Sublessor
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. 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 time of
early 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.
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At the end of the specified term of this sublease, Sublessee shall
receive full ownership of the cubicles and related office furniture provided
that Sublessee is not in any default to this agreement.
During the term of this Sublease, Sublessor shall permit Sublessee to
have access to and utilize the telephone exchange system and telephone
instruments currently installed. Sublessee shall be responsible for the
maintenance and repair of this system and shall return the system and
instruments to Sublessor at the end of the sublease period.
During the term of this sublease, Sublessor shall permit Sublessee to
have access to and utilize the ADT Security system currently installed.
Sublessee shall be responsible for their pro rata cost of the monthly expense
based on square footage of space of the subleased space.
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, not 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 limited 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 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
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(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 limited 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 day when so paid or expanded 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 suite 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.
Initials:
Sublessee: WLW Sublessor: PS Lessor: ________
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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 $43,599.34 Dollars as a security for the
faithful performance and observance of this Agreement of Sublease including, but
not limited to, the payment of Rent and any additional charges. 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 Rent or any other sum as to which
Sublessee is in default or for any such 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, not sublet, nor
suffer or permit the Subleased Premises or any part thereof to be used by
others, without the prior written consent of Sublessor
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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, subtenant, 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.
Notwithstanding the foregoing provisions of this Section 16, an
assignment of more than 50% of the outstanding equity interests of Sublessee,
either as a result of the issuance of additional shares of stock by Sublessee or
an assignment of stock by the then existing shareholders of Sublessee, shall not
require the consent of Sublessor as long as, immediately following such issuance
or assignment, Xxxxxxx X. Xxxxxx remains as chief executive officer of
Sublessee.
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.
18. INDEMNIFY.
Each party hereto does hereby indemnify the other, and agrees to hold
the other harmless, of any 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, and
Sublessee shall be entitled to a full refund of its $43,599.34 Security Deposit.
By signing below, Lessor consents to this Sublease, and further agrees
with Sublessee that:
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(1) in the event of a default by Sublessor under the Lease that is not
due to a default by Sublessee under this Agreement, Lessor shall offer the
Sublessee a reasonable opportunity to cure the default and allow Sublessee to
assume all of Sublessor's obligations under the Lease; and
(2) notwithstanding the provisions of Section 9 under the Lease, an
assignment of more than 50% of the outstanding equity interests of Sublessee,
either as a result of the issuance of additional shares of stock by Sublessee or
an assignment of stock by the then existing shareholders of Sublessee, shall not
require the consent of Lessor as long as, immediately following such issuance or
assignment, Xxxxxxx X. Xxxxxx remains as chief executive officer of Sublessee.
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 Tower Realty Partners representing the Sublessee, whose
commission shall be paid by Sublessor pursuant to a separate written agreement.
In no other 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 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 and their
respective addresses hereinabove set forth or to such other addresses as either
party shall give notice of in like manner; with a copy to
If to Sublessor: Optium, Inc.
000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
000-000-0000 xxx 000
And if to Sublessee: VaxDesign, Inc.
0000 Xxxxx Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
Initials:
Sublessee: WLW Sublessor: PS Lessor: __________
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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 such 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 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 required 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.
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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 the 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
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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: VaxDesign, Inc.
/s/ Xxxxx Xxxxxxx By: /s/ Illegible
------------------------------------- ------------------------------------
XXXXX XXXXXXX Its: President & CEO
Print Name Date: 2-11-04
/s/ Xxxxxx Xxxxxx
-------------------------------------
XXXXXX XXXXXX
Print Name
SUBLESSOR:
Witnesses: Optium, Inc.
/s/ Xxxxxx X. Xxxxxxxx 2/17/04 By: /s/ Illegible
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Xxxxxx X. Xxxxxxxx Its: CEO
Print Name Date: 2-17-04
/s/ Illegible
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Illegible
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Print Name
Consent of Lessor:
LESSOR:
Witnesses: Discovery Lakes, LLC
By:
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Its:
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Print Name Date:
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Print Name
14
OPTIUM CORPORATION
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
[MAP]
ATTACHMENT
Office Furniture, Cubicals, Chairs, etc.
1. Xxxxxx Xxxxxx Cubicals 66
2. H/M Tower File Cabinets 44
3. Altigen Phone Instruments 57
4. Aeron Office Chairs 40
5. H/M Teardrop Side Tables 28
6. Xxxxxx Visitor Roller Chairs 4
7. Small Coffee Table 1
8. Xxxxxx Wire Mesh Side Table Chairs 11
9. Zhejang Black Roller Lab Chairs 2
10. ADT Security/Fire System 1
11. ADT Badging System 1
12. Altigen Phone Server/System 1
13. Enclosed Office Cubical Systems 5
14. Enclosed Office Conference Table 3
15. Human Scale Office Chairs 3
16. Large 12 foot Conference Table 1
17. Conference Room Office Chairs(Aeron) 9
18. Black Teardrop Table Side Chairs 7
GUARANTY
This Guaranty is executed and delivered this 2nd day of March, 2004, by
Sciperio, Inc., an Oklahoma corporation (hereinafter referred to as the
"Guarantor"), in favor of Optium, Inc. (hereinafter referred to as the
"Sublessor").
For good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, Guarantor hereby agrees as follows:
1. RECITALS.
(a) A certain Agreement of Sublease (the "Sublease"), dated as of the
17th day of March 2004, has been or will be executed by and between Sublessor,
and VaxDesign, Inc. ("Sublessee").
(b) The Sublease covers the premises known as DISCOVERY LAKE COMPLEX,
2721 Discovery Drive, part xx Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, consisting of
approximately 14,500 rentable square feet (referred to in the Sublease as the
"Subleased Premises").
(c) As a condition to Sublessor's execution of the Sublease, Sublessor
requires the Guarantor, who has a financial interest in Sublessee, to guarantee
all of the Indebtedness (as hereafter defined) of Sublessee under the Sublease.
(d) Guarantor desires to induce Sublessor to enter into the Sublease
with Sublessee by entering into this Guaranty.
2. DEFINITIONS. Capitalized terms used but not defined herein shall have
the meanings ascribed to them in the Sublease.
3. GUARANTY. Guarantor hereby unconditionally and irrevocably guarantees
the full and complete performance by Sublessee of all liabilities, obligations
and duties of Sublessee under the Sublease arising from the Commencement Date of
the Sublease through the term of this Guaranty, whether by reason of
acceleration or otherwise (hereinafter referred to as the "Indebtedness").
4. NATURE OF GUARANTY. Guarantor's liability under this Guaranty shall be
open and continuous for so long as any Indebtedness of Sublessee remains unpaid
or unsatisfied. Accordingly, no payments made upon any such Indebtedness will
discharge or diminish the continuing liability of Guarantor in connection with
any remaining portions of any such Indebtedness or any Indebtedness that
subsequently arises or is thereafter incurred or contracted. Guarantor's
obligations to pay the Indebtedness shall survive the expiration of the term of
this Guaranty.
5. TERM OF GUARANTY.
(a) Subject to the provisions of Section 5(c), the term of this
Guaranty shall commence on the Commencement Date of the Sublease and shall
continue until the date upon which Sublessee furnishes Sublessor with a balance
sheet in the same form as that previously furnished by Guarantor to Sublessor,
showing that, as of the date of such balance sheet (i) the amount of Sublessee's
current assets (defined as free cash less capital contributions by the Guarantor
plus Accounts Receivable less than 90 days aged) is at least equal to or greater
than $1,500,000, and (ii) the amount of Sublessee's current liabilities (defined
as all debt and liabilities due within one year of the balance sheet date) is at
least equal to or less than $1,200,000.
(b) The balance sheet of Sublessee provided under Section 5(a) shall
be audited by an independent certified public accountant, and the accompanying
audit report not describe substantial doubt about Sublessee's ability to
continue as a going concern.
(c) This Guaranty, and any obligations of Guarantor hereunder, shall
terminate upon the termination of the Sublease for any reason other than a
default by Sublessee thereunder.
6. JURISDICTION; APPLICABLE LAW. This Guaranty has been delivered to
Sublessor and accepted by Sublessor in the State of Florida. If there is a
lawsuit, Guarantor agrees upon Sublessor's request to submit to the jurisdiction
of the courts situate in the State of Florida. This Guaranty shall be governed
by and construed in accordance with the laws of the State of Florida.
7. ATTORNEYS' FEES; EXPENSES. Guarantor agrees to pay all of Sublessor's
costs and expenses, including reasonable attorneys' fees, incurred in connection
with the enforcement of this Guaranty.
8. GENERAL.
(a) This Guaranty, together with the Sublease, constitutes the entire
understanding and agreement of the parties as to the matters set forth in this
Guaranty. All prior and contemporaneous representations and discussions
concerning the subject are included in this document or do not constitute an
aspect of the agreement of the parties. Except as may be specifically set forth
in this Guaranty, no conditions precedent or subsequent, of any kind whatsoever,
exist with respect to Guarantor's obligations under this Guaranty.
(b) The liability of Guarantor hereunder shall in no way be affected
by: (i) the release or discharge of Sublessee in any creditors', receivership or
bankruptcy proceeding; (ii) any alteration of or amendment to the Sublease which
alteration or amendment has been consented to in writing by Guarantor; (iii) any
permitted sale, assignment or sublease (unless Sublessee is released
thereunder), or any pledge or mortgage of the rights of Sublessee under the
Sublease; or (iv) any application or release of any security or other guaranty
given for the performance and observance of the covenants and conditions in the
Sublease on Sublessee's part to be performed and observed.
(c) This Guaranty shall inure to the benefit of the Sublessor and its
successors and assigns and any assignee of the Sublessor's interest in the
Sublease, and shall be binding upon Guarantor and his successors and assigns.
(d) This Guaranty may be amended only by a written amendment hereto
signed by Sublessor and Guarantor.
(e) Notices and demands required, or permitted, to be sent to
Guarantor hereunder shall be sent by certified mail, return receipt requested,
postage prepaid, or by Federal Express or other recognized overnight courier
service and shall be deemed to have been given one (1) business day following
deposit with Federal Express or other overnight courier service, with next
business day delivery requested, or three (3) days following deposit in the
United States Mail if sent by certified mail to address shown below for
Guarantor:
Sciperio, Inc.
0000 X. Xxxxxxxx Xxxx Xx.
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, President
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the date
first written above.
Sciperio, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, President
Witness:
1. /s/ Xxxxx X. Xxxxxxx
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(Signature)
XXXXX X. XXXXXXX
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(Print name)
2. /s/ Xxxxxx X. Xxxx
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(Signature)
XXXXXX X. XXXX
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(Print name)
