SUBLEASE AGREEMENT
MERIX CORPORATION
an Oregon corporation
(?Sublandlord?)
- AND -
XSUNX, INC.
a Colorado corporation
(?Subtenant?)
April 1, 2008
Table Of Contents
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1. |
Sublease. |
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2. |
Term. |
1 |
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3. |
Rent. |
3 |
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3.1 |
Additional Rent and Direct Pay Obligations. |
3 |
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3.2 |
Rent Defined. |
3 |
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3.3 |
Sublease Performance Security. |
3 |
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3.4 |
Escrow For Property Insurance, Taxes And Assessments. |
5 |
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4. |
Use of Demised Premises. |
6 |
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5. |
Signs. |
6 |
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6. |
Master Lease. |
6 |
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6.1 |
Incorporation By Reference. |
6 |
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6.2 |
Certain Modifications. |
6 |
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6.3 |
Subtenant Acknowledgements and Attornment. |
8 |
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7. |
Master Landlord?s Performance under Master Lease. |
8 |
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7.1 |
Performance by Master Landlord. |
8 |
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7.2 |
Sublandlord?s Efforts. |
9 |
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8. |
Condition of Demised Premises and Alterations Thereto. |
10 |
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8.1 |
Condition of Demised Premises. |
10 |
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8.2 |
Subtenant Alterations. |
10 |
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8.3 |
Removal, Holdover And Additional Security. |
11 |
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8.4 |
Purchase of Equipment. |
13 |
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9. |
Subletting and Assignment. |
14 |
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10. |
Late Charges. |
14 |
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11. |
Insurance. |
14 |
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12. |
Indemnity and Release. |
15 |
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12.1 |
Subtenant Indemnity. |
15 |
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12.2 |
Sublandlord Indemnity. |
15 |
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13. |
Events of Default and Remedies. |
16 |
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13.1 |
Events of Default. |
16 |
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13.2 |
Remedies Upon Default. |
16 |
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13.3 |
Sublandlord?s Right to Cure. |
17 |
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13.4 |
Subtenant?s Reimbursement. |
17 |
Table Of Contents
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Paragraph |
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Page |
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Miscellaneous. |
18 |
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14.1 |
Notices. |
18 |
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14.2 |
Brokers. |
19 |
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14.3 |
Captions. |
19 |
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14.4 |
Successors and Assigns. |
19 |
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14.5 |
Attorneys? Fees. |
19 |
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14.6 |
Gender and Number. |
19 |
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14.7 |
Separability. |
19 |
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14.8 |
Conditions Precedent. |
19 |
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14.9 |
Amendment of Master Lease. |
21 |
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14.10 |
Quiet Enjoyment. |
21 |
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14.11 |
Amendment; Entire Agreement. |
21 |
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14.12 |
No Waiver. |
21 |
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14.13 |
Time of Essence. |
21 |
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14.14 |
Governing Law. |
21 |
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14.15 |
Memorandum of Sublease |
21 |
Sublease Agreement
This Sublease Agreement (this ?Sublease?) is entered into as of this 1st day of April 2008 (?Effective Date?), by and between Merix Corporation, an Oregon corporation (?Sublandlord?), and XsunX, Inc., a Colorado corporation (?Subtenant?).
Recitals
A. Sublandlord and Opus Northwest, L.L.C. (?Original Landlord?) entered into that certain Net Lease Agreement, dated August 21, 2000 (the ?Master Lease?), relating to the Demised Premises (as described in the Master Lease), located in the City of Wood Village, County of Multnomah, State of Oregon, as more particularly described in the Master Lease. The Demised Premises was subsequently sold to, and concurrently therewith the Master Lease was subsequently assigned to, Pro-Active Properties LLC, an Oregon limited liability company (the ?Master Landlord?). Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Master Lease. A copy of the Master Lease is attached hereto as Exhibit A.
B. Sublandlord desires to sublease to Subtenant and Subtenant desires to sublease from Sublandlord the Demised Premises subject to the terms, conditions and covenants set forth below.
Agreement
Now, therefore, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Sublease. Sublandlord hereby subleases to Subtenant and Subtenant hereby hires and takes from Sublandlord the Demised Premises, subject to the terms, covenants and conditions contained in this Sublease. Sublandlord represents and warrants to Subtenant that (i) a true, accurate and complete copy of the Master Lease is attached hereto as Exhibit A; (ii) as of the Effective Date, the Master Lease is in full force and effect; (iii) as of the Effective Date, neither Sublandlord, nor to Sublandlord?s actual knowledge, the Master Landlord, is in default of its respective obligations under the Master Lease nor has any currently effective notice of default been delivered by either Master Landlord or Sublandlord; and (iv) Basic Rent, Additional Rent and all other sums due under the Master Lease have been paid through the Effective Date.
2. Term. The term of this Sublease (the ?Term?) shall commence on the later of (i) satisfaction of the conditions precedent to the effectiveness of this Sublease set forth in Paragraph 14.8 below, and (ii) the date of Substantial Completion (as defined in Paragraph 8.1 below) of the Sublandlord Removal Work (as defined in Paragraph 8.1 below) (such date herein, the ?Commencement Date?) and will expire at 5:00 p.m. Oregon time on the July 31, 2011 (the ?Expiration Date?) unless earlier terminated pursuant to the terms of this Sublease. For purposes of this Sublease, the term ?Sublease Year? shall mean each consecutive twelve (12) month period during the Term.
Notwithstanding anything to the contrary herein, so long as neither Subtenant nor Subtenant?s agents or contractors interfere with or delay completion of the Sublandlord Removal Work, prior to the Commencement Date, Sublandlord shall permit Subtenant and Subtenant?s agents and contractors to enter portions of the Demised Premises where Sublandlord has designated in writing to Subtenant that the Sublandlord Removal Work has been completed solely for the purpose of installing Subtenant?s cabling, telephone systems, furniture and other business equipment; provided, however, that such access shall (i) be granted only after reasonable prior notice (but in no event less than twenty four (24) hours prior notice) to Sublandlord of the time and date of such access, (ii) be subject to all of the terms and conditions of this Sublease (including, without limitation, the obligation to comply with the provisions Paragraph 11 below), with the exception of the obligation to pay Basic Rent and Additional Rent hereunder, (iii) Subtenant shall indemnify, defend (with legal counsel reasonably satisfactory to Sublandlord), protect and hold Sublandlord and its officers, employees, agents, successors and assigns harmless from and against all claims, losses, liabilities, judgments, damages, costs and expenses (including attorneys? fees) incurred in connection with, arising from or related to any such access to the Demised Premises by Subtenant or Subtenant?s agents and contractors and/or the activities of Subtenant and/or Subtenant?s agents and contractors in, on or about the Demised Premises prior to the Commencement Date (including, without limitation, any claim brought against Sublandlord by Subtenant or Subtenant?s agents and/or contractors with respect to any damage to personal property or injury to persons, the risk of which has been assumed by Subtenant pursuant to clause (II) below), (iv) Subtenant shall coordinate such access with Sublandlord and Sublandlord?s contractors performing the Sublandlord Removal Work to ensure that such access shall not interfere with or delay completion of the Sublandlord Removal Work, any such delay or interference constituting a default by Subtenant hereunder, and (v) Subtenant shall not be permitted to conduct business from the Demised Premises until after the Commencement Date has occurred; provided, further however, that Sublandlord may, in the exercise of Sublandlord?s sole and absolute discretion, permit Subtenant to commence business operations from portions of the Demised Premises prior to the Commencement Date, provided that, any such use of portions of the Demised Premises shall be subject to Subtenant?s payment of Additional Rent and a proportional share of Basic Rent. Notwithstanding the foregoing or anything to the contrary herein, in the event (I) Sublandlord determines that any such access by Subtenant is causing interference or delay in the completion of the Sublandlord Removal Work, or that any such access or continued access is reasonably anticipated to cause such interference or delay, then Sublandlord may deny access to the Demised Premises by Subtenant, Subtenant?s agents Subtenant?s contractors, or any of them and no such denial shall constitute nor be deemed to constitute grounds for (x) an abatement of any amounts payable to Sublandlord under the terms of this Sublease, or (y) a waiver of any obligations imposed upon Subtenant pursuant to the terms of this Sublease, and (II) Subtenant hereby acknowledges and agrees that Subtenant assumes all risk of damage to personal property or injury to persons in, upon or about the Demised Premises, the Building and/or the Land from any cause whatsoever (including, but not limited to, any personal injuries resulting from a slip and fall in, upon or about the Demised Premises, the Building and/or the Land) and waives the right to recover from and forever releases and discharges Sublandlord and Sublandlord?s partners, subpartners and their respective officers and employees, from liability with respect to damage to personal property or injury to persons in, upon or about the Demised Premises, the Building and/or the Land from any cause whatsoever, irrespective of whether any such damage or injury was direct or indirect, known or unknown, foreseen or unforeseen, and irrespective of the negligence of Sublandlord and/or Sublandlord?s employees, agents or contractors.
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