SUBLEASE (Lake Oswego, Oregon)
Exhibit
10.10
(Lake
Oswego, Oregon)
THIS SUBLEASE, dated for reference
purposes only December 31, 2009 is by and between Aequitas Capital Management,
Inc., an Oregon corporation ("Sublessor") and
WS Technologies LLC dba Windswept Technologies, an Oregon limited liability
company ("Sublessee").
RECITALS
A. Sublessor
is the holder of the tenant's interest under that certain Office Lease Agreement
dated October 19, 2006 between OR-XXXXX OAKS, L.L.C., a Delaware limited
liability company, as landlord (the "Master Lessor"), and
Sublessor, as Tenant, as amended by that certain First Amendment to Lease (the
"First
Amendment") dated July 23, 2009 between Master Lessor, as landlord, and
Sublessor, as tenant (together, the "Master Lease"), for
premises located at 0000 Xxxxxxx Xxxx, Xxxx Xxxxxx, Xxxxxx 00000, and more
particularly described in the Master Lease (the "Sublessor
Premises").
B. Sublessee
desires to sublease (i) a portion of the Sublessor Premises, as depicted on
the attached Exhibit
A, including the nonexclusive use of the Common Areas (as defined in the
Master Lease) and all personal property owned by Sublessor and utilized by
Sublessee (together, the "Premises") from
Sublessor pursuant to the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, for valuable
consideration, the parties agree as follows:
1.
Sublease. Subject
to all the terms, covenants and conditions of the Master Lease, a copy of which
is attached as Exhibit B,
Sublessor subleases the Premises and the Personal Property to Sublessee, and
Sublessee subleases the same from Sublessor.
2.
Term. The term of
this Sublease shall be 4 years, 10 months, commencing on January 1, 2010 and
terminating on October 31, 2014 (the "Term").
3.
Rent. Sublessee
shall pay to Sublessor $12,424.26 per month as rent for the Premises (the "Real Property Rent") and
$6,262 per month as rent for the Personal Property (the "Personal Property Rent") (the
Real Property Rent and the Personal Property Rent are together, "Rent"). Rent shall
be payable in advance on the first day of each month during the
Term. Rent for any period during the Term which is for less than one
month shall be a pro rata portion of the monthly installment. The
Real Property Rent will increase by 3% on January 1 of each year, beginning
January 1, 2011. The Personal Property Rent is based on current
usage as reflected on the attached Schedule 1 as
"Monthly Fixed Expenses". The Personal Property Rent is subject to
change based on usage by Sublessee and by mutual agreement of the parties once
per quarter, and does not include personal property taxes, which personal
property taxes will be the responsibility of Sublessee.
4.
Rights and Obligations of
Sublessee. Except as specifically provided in this Sublease,
Sublessee shall comply with, be bound by, and shall use the Premises in
accordance with all the terms, covenants and conditions of the Master Lease
applicable to the lessee thereunder. Sublessee shall perform all of
the obligations of the lessee under the Master Lease and shall be entitled to
the rights of Sublessor as lessee under the Master Lease, but only as applicable
to the Premises. Sublessor shall not be deemed to be in default of
any term, covenant, condition or agreement in this Sublease if the Master Lessor
has promised in the Master Lease to perform such term, covenant, condition or
agreement and Sublessor is proceeding diligently to require the Master Lessor to
perform the same.
5.
Parking. Sublessor
hereby sublicenses to Sublessee 35 of Sublessor's 71 licensed unreserved parking
spaces upon the terms and conditions contained in Exhibit F of the Master
Lease.
6.
Termination. Sublessor
may terminate this Agreement by written notice to Sublessee upon failure by
Sublessee or microHelix, Inc. to perform any material term, covenant or
condition of, or breach of any representation or warranty in the Administrative
Services Agreement dated December 31, 2009 between Sublessee and Aequitas or the
Amended and Restated Advisory Services Agreement dated December 31, 2009 between
microHelix, Inc. and Aequitas, as applicable, and such failure or breach
continues for a period of 30 days after the receipt by Sublessee of a notice of
such failure or breach.
7.
Sublessor's Representations;
Indemnity. Sublessor hereby represents and warrants to
Sublessee that:
a. A
true copy of the Master Lease, and all amendments thereto, is attached as Exhibit B.
b. The
Master Lease is in good standing according to its terms as of the date hereof
and will be in good standing according to its terms during the
Term.
c. Sublessor
shall pay to the Master Lessor, as and when due, all rents required to be paid
by the terms of the Master Lease, and shall otherwise perform all Sublessor's
obligations as required by the terms of the Master Lease during the term of this
Sublease.
d. Sublessor
has provided Master Lessor with notice of this Sublease pursuant to Section
11.04 of the Master Lease.
e. Sublessor
has obtained Master Lessor's consent to the sublicense of parking spaces to
Sublessee as required by Exhibit F of the Master Lease.
Sublessor agrees to protect, defend and
hold Sublessee harmless from and against any loss, liability or claim cost or
expense (including attorney fees) relating to or arising out of (i) the
inaccuracy of any warranty contained in this Agreement, (ii) any act,
occurrence, omission, event or condition relating to the Lease or the Premises
which first occurred or existed prior to the date of this Sublease, and (iii)
Sublessor's breach of the Master Lease.
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8.
Sublessee's
Indemnity. Sublessee shall protect, defend and hold Sublessor
harmless from and against any loss, liability or claim, cost or expense
(including attorney fees) (a "Loss") relating to or
arising out of Sublessee's use and occupancy of the Premises during the term of
this Sublease to the extent such Loss is not caused or contributed to by
Sublessor.
9.
Notices. Each
notice, consent, request, or other communication required or permitted under
this Agreement will be in writing, will be delivered personally or sent by
certified mail (postage prepaid, return receipt requested) or by a recognized US
overnight courier, and will be addressed as follows:
|
If
to Sublessee:
|
WS
Technologies LLC
|
|
Attn: President
|
|
|
0000
XX Xxxxxxx Xxxx, Xxxxx 000
|
|
|
Xxxx
Xxxxxx, XX 00000
|
|
|
If
to Sublessor:
|
Aequitas
Capital Management, Inc.
|
|
Attn: Legal
Department
|
|
|
0000
XX Xxxxxxx Xxxx, Xxxxx 000
|
|
|
Xxxx
Xxxxxx, XX 00000
|
Each
notice, consent, request, or other communication will be deemed to have been
received by the party to whom it was addressed (a) when delivered if delivered
personally; (b) on the second business day after the date of mailing if mailed;
or (c) on the date officially recorded as delivered according to the record of
delivery if delivered by overnight courier. Each party may change its
address for purposes of this Agreement by giving written notice to the other
party in the manner set forth above.
10. Incorporation. Except
as limited or modified by this Sublease, all of the terms and conditions of the
Master Lease shall apply as if the Sublessor was the lessor and the Sublessee
was the lessee thereunder. Master Lease Paragraphs 1.03, 1.04, 1.05,
1.06, 1.07, 1.08, 1.09, 1.10, 1.12, 1.14, 1.16, 3.01, 3.02, 3.03, 4, 6,
26.05(b), Exhibit B, Exhibit C, Exhibit D, Paragraph 2 of Exhibit F, Paragraphs
3 of Exhibit F, and First Amendment Paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10,
11, 12, 13 and 14 are not incorporated in this Sublease.
11. Attorney Fees. In
the event of any litigation to enforce or declare any of the provisions of this
Agreement, the prevailing party shall recover and the losing party shall pay the
reasonable attorney fees incurred by the prevailing party at the trial or
arbitration and upon any appeals therefrom, as determined by the respective
courts or arbitrators.
12. Successor
Interest. All the terms and provisions of this Sublease shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
13. Governing Law. This
Agreement shall be construed and interpreted according to the laws of the State
of Oregon without regard to its conflicts of laws provisions.
[Signatures
on following page]
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IN WITNESS WHEREOF, the parties have
executed this Sublease as of the day and year first set forth
above.
