SUBLEASE AGREEMENT
This
Sublease Agreement (“
Sublease ”)
is made and entered into by XsunX, Inc., a Colorado corporation
(“
Sublandlord ”),
and MVSystems, Inc., a Colorado corporation (“
Subtenant ”)
as of May 30, 2008. For valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Sublandlord and
Subtenant agree as follows:
1.
Definitions .
In this Sublease, the following terms have the meaning given to
them:
a.
Buildin g:
The building located at 500 Corporate Circle, Golden, Colorado
80401, which building contains the Subleased Premises and the
Original Premises.
b.
Sublease Commencement Date :
May 31, 2008.
c.
Master Lease :
Lease dated April 28, 2006, between Green Mountain Corporate Center
II, LLP as Landlord, and Sublandlord, as Tenant. A copy of the
Master Lease is attached to this Sublease as
Exhibit A and
is made a part of this Sublease by this reference.
d.
Subleased Premises :
That portion of the Original Premises designated as the
“Warehouse” portion, together with any interior windows
which shall remain unobstructed, as depicted on the floor plan
attached to this Sublease as
Exhibit B ,
which floor plan is made a part of this Sublease by
reference.
e.
Retained Premises :
That portion of the Original Premises designated as the
“Workshop,” “Open Office Area,”
“Office 01,” “Office 02” and
“Restroom” portions, together with any interior windows
which shall remain unobstructed, as depicted on the floor plan
attached to this Sublease as
Exhibit B .
f.
Original Premises :
The premises demised to Sublandlord under the Master Lease, known
as Suite J of the Building.
g.
Termination Date :
May 31, 2009, unless earlier terminated as provided in this
Sublease.
2.
Agreement .
Sublandlord subleases the Subleased Premises to Subtenant, and
Subtenant subleases the Subleased Premises from Sublandlord,
according to the terms of this Sublease.
3.
Acceptance of Subleased Premises .
Sublandlord will deliver the Subleased Premises, and Subtenant will
accept the Subleased Premises, in an “as is” condition
on the Sublease Commencement Date.
4.
Term .
The term of this Sublease will begin on the Sublease Commencement
Date and shall end on the Termination Date, unless earlier
terminated as provided in this Sublease (“
Sublease Term ”).
The parties expressly agree and acknowledge that this Sublease
shall terminate upon the closing of a sale to a third party
purchaser or the exercise of the Reimbursement Option, as provided
for in the Separation Agreement and Mutual Release executed by
Subtenant and Sublandlord contemporaneously herewith
(“Separation Agreement”).
5.
Subtenant Use of and Access to Subleased Premises
.
Subtenant may use the Subleased Premises for office, laboratory and
manufacturing purposes. Sublandlord
and Subtenant acknowledge that Subtenant
will be operating or maintaining within the Subleased Premises the
X4-BPL machine currently located in the Subleased Premises (the
“
Machine ”)
for purposes of a potential sale to a third party as set forth in
the Separation Agreement. Sublandlord and Subtenant further
acknowledge that Subtenant will use for such purpose, as necessary
to demonstrate the Machine, the gas cabinets currently installed in
the Subleased Premises (“Gas Lines”). Access by
Subtenant to the Subleased Premises shall be through the doorway
located in Suite L of the Building, the same being the doorway in
the “Warehouse” portion as depicted on Exhibit B
hereto.
6.
Representations and Obligations of Subtenant Regarding
Machine .
Subtenant represents that as of February 12, 2008, the Machine
fully complied with the functionality and system operating
standards set forth in Section 11 of the Machine proposal of
Subtenant to Sublandlord dated December 2, 2005, which Section 11
bears the heading “Process and System Guaranties.”
Subtenant further represents and warrants that throughout the
Sublease Term, the Machine: (a) will not be relocated from the
Subleased Premises except as provided for in the Separation
Agreement; (b) will be maintained in its present condition as of
the date hereof, without disassembly or removal of any parts except
as necessary for replacement of parts to demonstrate the Machine to
potential purchasers; and (c) will be used by Subtenant solely for
demonstration to potential buyers in connection with a potential
sale of the Machine to a third party as set forth in the Separation
Agreement together with such operation and maintenance as necessary
to demonstrate the Machine for purposes of a potential sale.
Subtenant’s representations and obligations set forth in this
paragraph 6 are referred to as the “Machine
Representations.”
7.
Sublandlord Use of and Access to the Subleased Premises
.
During the Sublease Term, Sublandlord shall have no use of or
access to the Subleased Premises except as follows: two
representatives of Sublandlord shall be granted access, together,
to the Subleased Premises solely for purposes of verifying
Subtenant’s compliance with the Machine Representations,
which access shall be limited to once a quarter during the Sublease
Term on a date mutually agreed by Subtenant and Sublandlord at
least five (5) business days in advance.
8.
Rent .
In consideration of the mutual obligations set forth herein,
Sublandlord entered into the Separation Agreement. Sublandlord and
Subtenant mutually acknowledge that execution of the Separation
Agreement, together with the mutual obligations set forth therein,
is full and adequate consideration for the obligations set forth in
this Sublease. Accordingly, Subtenant will pay no rent to
Sublandlord hereunder. Sublandlord further agrees that throughout
the Sublease Term the Sublandlord shall be responsible to pay, and
shall pay, any rent due under the terms of the Master Lease
(hereinafter, “XsX Rental Payments”), together with any
additional rent, real estate taxes and assessments and expenses of
operating and maintaining the Subleased Premises other than the
Utilities and Insurance as set forth in paragraphs 9 and 10
below.
9.
Utilities .
Beginning on the Sublease Commencement Date, Sublandlord’s
account with electrical, water, sewer and other utilities for the
Original Premises will be transferred to Subtenant for the Sublease
Term. Throughout the Sublease Term, Subtenant shall be responsible
to pay, and shall pay, all utilities for both the Subleased
Premises and the Retained Premises less the monthly sum of $100.00,
which monthly $100.00 amount shall be payment by Sublandlord for
utilities used in connection with the Retained Premises (“XsX
Utilities Payment”). The XsX Utilities Payment shall be due
to Subtenant and payable by Sublandlord to Subtenant on or before
the 5th day of each month during the Sublease Term. Subtenant shall
be reimbursed for its payment of Utilities (excluding the XsX
Utilities Payment paid by Sublandlord) in accordance with, and to
the extent permitted by, the Separation Agreement.
10.
Insurance .
Beginning on the Sublease Commencement Date, and throughout the
Sublease Term, Subtenant shall maintain in full force and effect,
with a commercial insurance carrier licensed and duly authorized to
issue such insurance in the State of Colorado, insurance policies
and coverages for the Subleased Premises approved by Sublandlord
and to include premises, fire and casualty, and commercial
gen
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