Exhibit 10.1
SUBLEASE
THIS SUBLEASE is made as of April 1, 2006, by and between APPLIED FILMS
CORPORATION, a Colorado corporation, with offices at 0000 X-00 Xxxxxxxx Xxxx,
Xxxxx 000, Xxxxxxxx, Xxxxxxxx 00000 ("Sublandlord") and OPTERA COLORADO, INC., a
Colorado corporation, with offices at 0000 X-00 Xxxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxx, Xxxxxxxx 00000 ("Subtenant").
RECITALS
A. Pursuant to a Single-Tenant Lease dated October 26, 2005, as amended by
a First Amendment to Single-Tenant Lease dated December 1, 2005 (collectively,
the "Master Lease"), and attached hereto as Exhibit A, Sublandlord, as tenant,
leased from First Industrial Development Services, Inc., a Maryland corporation
("Master Landlord"), as landlord, premises commonly known as 0000 X-00 Xxxx
Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000, as more particularly described in the
Master Lease (the "Facility").
B. The Master Lease commenced December 22, 2005, and is scheduled to expire
at midnight on May 21, 2011.
C. For purposes of this Sublease, the Facility shall be deemed to include
One Hundred Twenty Six Thousand Three Hundred Eighty-Four (126,384) square feet
and Subtenant's pro rata share of the costs of the Facility will be calculated
using this amount as the denominator.
D. Subtenant desires to sublease a portion of Sublandlord's space in the
Facility on the terms set forth in this Sublease.
ACCORDINGLY, in consideration of the mutual covenants set forth in this
Sublease, the parties agree as follows:
1. PREMISES. Sublandlord leases to Subtenant and Subtenant leases from
Sublandlord the portion of the Facility shown on attached Exhibit B (the
"Premises"). For purposes of this Sublease, the Premises shall be deemed to
include approximately Forty Thousand Nine Hundred One (40,901) square feet and
"Subtenant's Pro Rata Share" shall be equal to Thirty-Two and 36/100ths percent
(32.36%) and shall increase to reflect any additional square footage subleased
by Subtenant at the Facility in the future. The Premises includes its own
entrance and restrooms. The Premises includes only those areas within the
perimeter of Subtenant's portion of the Facility as shown on Exhibit B and does
not include the use of any of Sublandlord's restrooms, hallways, lobbies, break
room, cafeteria or other areas outside of the perimeter shown on Exhibit B. The
Premises shall include ten (10) parking spaces on the west side of the Facility
and available parking on the south side of the Facility which shall be shared in
common with Sublandlord.
2. COMPLIANCE WITH MASTER LEASE. Subtenant leases the Premises from
Sublandlord subject to the terms, covenants and conditions contained in the
Master Lease, except as modified by this Sublease, including the following
changes:
(a) The following sections and paragraphs in the Master Lease are deleted
in their entirety: Section 1.2 (The Premises); Section 1.4 (Parking); Section
1.5 (Term), Section 1.6 (Estimated Delivery Date); Section 1.7 (Base Rent);
Section 1.8 (Rentable Area); Section 1.9 (Tenant's Share of Common Area
Operating Expenses); Section 1.12 and Article 37 (Guarantor); Section 2.5
(Parking); Article 3 (Term); Section 8.1 (Maintenance); Section 16 (Brokers);
Section 50 (Termination of Existing Lease); Section 51 (Acquisition
Contingency); and Exhibit A (Depiction of Premises);
(b) The addresses set forth in Section 24 (Notices) are deleted and
replaced with the addresses set forth in the first paragraph of this Sublease;
and
(c) The amount of the Security Deposit set forth in Section 1.10 and
Article 5 (Security Deposit) is deleted and replaced with Twenty Thousand Nine
Hundred Sixty-Two Dollars ($20,962), which is covered by Subtenant's current
deposit with Sublandlord.
Subtenant covenants that it shall perform and observe all of the terms and
covenants of the Master Lease and this Sublease and that it shall do nothing to
create a breach on the part of Sublandlord of any of the terms or covenants of
the Master Lease. Except where inconsistent with this Sublease, wherever the
word "Landlord" appears in the Master Lease, the word "Sublandlord" shall be
substituted; wherever the word "Tenant" appears in the Master Lease, the word
"Subtenant shall be substituted; and wherever the word "Lease" appears in the
Master Lease, the word "Sublease" shall be substituted; provided however,
wherever the Master Lease imposes a duty or affirmative obligation on Lessor,
the duty of Sublandlord under this Sublease shall be limited solely to
requesting, using Sublandlord's reasonable efforts to cause, and cooperating to
permit Subtenant to take action to cause, the Master Landlord to perform such
duty or undertake such obligation, including, but not limited to, the obligation
to pay taxes, maintain insurance and perform repairs or replacements.
3. TERM. The term of this Sublease (the "Term") shall begin on April 1,
2006 (the "Commencement Date") and shall terminate September 30, 2006. Subtenant
shall have the option to renew the Term of this Sublease for Two (2) additional
periods of three (3) months each with the first renewal term commencing October
1, 2006 and terminating December 31, 2006, and the second renewal term
commencing January 1, 2007 and terminating March 31, 2007. Subtenant may not
exercise any renewal periods if at the time of such exercise there exists an
Event of Default by Subtenant under this Sublease. In no event shall Sublandlord
be obligated to exercise any renewal or purchase option under the Master Lease.
Each renewal shall be on the same terms and conditions as contained in this
Sublease. Subtenant shall notify Sublandlord in writing of its intention to
renew the Term of this Sublease no later than June 30, 2006 for the first
renewal period and no later than September 30, 2006 for the second renewal
period. Notwithstanding anything else to the contrary set forth in this Section,
this Section only governs the relationship between Sublandlord and Subtenant,
and shall not be deemed to modify or limit the rights and remedies of Master
Landlord under the Master Lease, or to obligate Master Landlord to comply with
any of the notice periods set forth in this Section.
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4. RENT.
(a) Subtenant agrees to pay Sublandlord as basic rent for the Premises
("Basic Rent") as follows: during the initial Term and any renewal Term annual
rent of Six and 15/100 Dollars ($6.15) per square foot, equal to Two Hundred
Fifty-One Thousand Five Hundred Forty One and 15/100 Dollars ($251,541.15)
annually, payable in equal monthly installments of Twenty Thousand Nine Hundred
Sixty-One and 76/100 Dollars ($20,961.76) on the first day of every calendar
month during the Term of this Sublease. If the Term of this Sublease begins on a
date other than on the first day of a month, Basic Rent from such date until the
first day of the following month shall be prorated at the rate of one-thirtieth
(1/30th) of the monthly installment of Basic Rent for each day, payable in
advance.
(b) As additional rent, Subtenant shall also pay to Sublandlord, at the
same time Subtenant pays Basic Rent, Subtenant's Pro Rata Share of Operating
Costs (as defined below). Such payments shall be based on amounts estimated by
Sublandlord in writing to be one-twelfth (1/12th) of Subtenant's Pro Rata Share
of Operating Costs for the current calendar year. Sublandlord may, based upon
reasonably anticipated costs, adjust such amount at any time by a written notice
to Subtenant.
(c) Sublandlord shall send Subtenant a statement within sixty (60) days
following the end of each Lease Year ("Annual Statement") showing (i) Operating
Costs, (ii) the amount of Subtenant's Pro Rata Share of them, and (iii) the
total monthly payments made by Subtenant toward Subtenant's Pro Rata Share of
them, all for the past Lease Year. If Subtenant's total monthly payments toward
Operating Costs for such Lease Year are greater than Subtenant's Pro Rata Share
of them, Sublandlord shall promptly pay Subtenant the difference. If Subtenant's
total monthly payments toward Operating Costs are less than Subtenant's Pro Rata
Share of them, Subtenant shall promptly pay Sublandlord the difference.
(d) Sublandlord shall make its records relating to Operating Costs
available for Subtenant's inspection within thirty (30) days after receiving a
written request from Subtenant with such request being made no later than ninety
(90) days following Subtenant's receipt of the Annual Statement.
(e) "Operating Costs" means all of Sublandlord's costs of insurance,
property taxes, unmetered utility and security costs and management fees with
respect to the Facility under Sections 4.2, 9 and 11 of the Master Lease, the
General Maintenance Costs (as defined in Section 10 below) and depreciation
expenses for leasehold improvements in the Facility. "Operating Costs" shall not
include: (i) expenses which are peculiar to Sublandlord's and Subtenant's
respective businesses or operations at the Facility; (ii) personal property
taxes attributable to personal property owned and used solely by Sublandlord or
Subtenant; (iii) basic rent payable by Sublandlord under the Lease; (iv) costs
of insurance maintained by Sublandlord under Section 9.4 of the Master Lease
with respect to the fixtures, equipment, furniture and other personal property
of Sublandlord; and (v) the cost of any repairs or replacements occasioned by
the negligence or willful acts of Sublandlord, its agents, employees, invitees
or licenses. Operating Costs for any partial Lease Year shall be prorated to the
termination date of the Sublease. Operating Costs that were paid by Sublandlord
in advance or will be paid by Sublandlord in arrears and pertain to periods
prior to the Commencement Date shall be prorated to the
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Commencement Date and paid or credited, as appropriate, to Sublandlord or
Subtenant. For example, insurance premiums included in Operating Costs and paid
in advance by Sublandlord for a period extending after the Commencement Date
shall be prorated to the Commencement Date, and Subtenant shall pay to
Sublandlord Subtenant's Pro Rata Share of the prepaid insurance premiums
applying to periods during the Term.
(f) Subtenant's security deposit of Twenty Thousand Nine Hundred Sixty-Two
Dollars ($20,962) has already been paid to Sublandlord upon execution of this
Sublease and shall be subject to the terms of Section 5 of the Master Lease.
5. MASTER LEASE. Sublandlord's interest in the Premises is subject to the
terms of the Master Lease. Sublandlord represents, warrants and agrees that: (a)
attached to this Sublease as Exhibit A is a true, correct and complete copy of
the Master Lease; (b) Sublandlord has good and marketable title to the tenant's
interest under Master Lease; (c) no default exists under the Master Lease that
has not been cured and no event has occurred under the Master Lease that upon
the giving of notice and/or the passage of applicable grace periods would
constitute a default under the Master Lease; and (d) Sublandlord has performed
and, subject to Section 3 above, shall continue to perform all of its
obligations as tenant under the Master Lease, in accordance with the terms and
conditions of the Master Lease. In no event shall Sublandlord be obligated to
exercise any renewal or purchase option under the Master Lease.
6. INTENTIONALLY DELETED.
7. INTENTIONALLY DELETED.
8. INTENTIONALLY DELETED.
9. INDEMNIFICATION AND INSURANCE. In addition to any indemnification
provisions contained in the Master Lease, Subtenant agrees to indemnify
Sublandlord and Master Landlord and shall hold Sublandlord and Master Landlord
harmless from and against any and all claims, actions, damages, liabilities and
expenses (including costs and reasonable attorneys' fees) (a) in connection with
death or injury to person(s) or loss or damage to property occurring in, on or
about, or arising out of the Premises, the use or occupancy thereof, or the
conduct or operation of Subtenant's business, except to the extent caused by the
negligence of Master Landlord, Sublandlord, or their agents, invitees or
employees; or (b) arising out of a default by Subtenant in the performance of
any of its obligations under this Sublease.
The comprehensive general liability insurance policy maintained by
Subtenant under Section 9.2 (Insurance), of the Master Lease shall also name
Sublandlord as an insured, and Subtenant shall furnish Sublandlord with
certificates evidencing the coverage required by Section 9 of the Master Lease,
as modified by this Sublease. Subtenant shall also provide all risk casualty and
property damage insurance on the equipment, furniture and all other personal
property of Subtenant in the Premises in an amount not less than the full
insurable replacement cost.
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10. MAINTENANCE.
Subtenant agrees to keep the Premises neat and clean and shall be
responsible for all repairs or replacements to the Premises or Facility
occasioned by the negligence or willful acts of Subtenant, its agents,
employees, invitees or licensees. Subtenant shall obtain Subtenant's own
janitorial service.
Sublandlord shall perform and pay all the costs (subject to timely
reimbursement by Subtenant for Subtenant's Pro Rata Share) related to any
reasonably necessary maintenance, alterations, repairs, replacements or
improvements ("General Maintenance Costs") made to the Facility generally
benefiting all those using the Facility during the Sublease Term or any renewal
period. General Maintenance Costs generally benefiting all those using the
Facility include, without limitation: the maintenance, repair and replacement of
heating, ventilating and air conditioning systems, parking areas, driveways,
sidewalks, lawns, the roof, and sewer and water systems.
Subtenant shall pay all of the costs related to any reasonably necessary
maintenance, alterations, repairs, replacements or improvements solely relating
to the Premises.
Sublandlord shall be responsible for all of the costs related to any
maintenance, alterations, repairs, replacements or improvements solely relating
to an area in the Facility other than the Premises.
At the termination of this Sublease, Subtenant shall deliver the Premises
to Sublandlord in good condition, ordinary wear and tear and insured damage
excepted. To the extent any maintenance or repairs are the responsibility of
Master Landlord under the Master Lease, Sublandlord's obligations herein shall
be limited to requesting, using Sublandlord's reasonable efforts to cause, and
cooperating to permit Subtenant to take action to cause, Master Landlord to
perform its obligations under the Master Lease. Subtenant shall provide
Sublandlord with reasonable access to the Premises as may be necessary and
appropriate to maintain the Facility.
11. ACCEPTANCE OF PREMISES. Subtenant accepts the Premises in their current
"as is" condition. Subtenant may not make any material alterations or
improvements without Sublandlord's prior written consent, which will not be
unreasonably withheld.
12. UTILITIES; PHONE. Subtenant shall pay all charges for gas, electric,
water and other utilities serving the Premises. To the extent any utilities are
not separately metered, Subtenant shall reimburse Sublandlord for Subtenant's
Pro Rata Share of all costs of said utilities. Subtenant shall supply and pay
for its own telephone and data systems.
13. TAXES. Sublandlord and Subtenant shall each pay all taxes on their
respective personal property located at the Facility, prior to delinquency.
14. ASSIGNMENT; SUBLEASE. Notwithstanding anything in this Sublease or the
Master Lease to the contrary, Subtenant shall have the right during the Term, as
it may be renewed, subject only to the prior consent of the Master Landlord, if
any, required under the Master Lease, to (a) assign and transfer this Sublease
to another entity to which Subtenant has sold substantially
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all of its assets, or (b) to merge or consolidate with another entity with the
result that the merged or consolidated entity shall have substantially all of
the assets of Subtenant, provided that: (1) Subtenant shall not at the time of
such assignment be in default under any of the terms, covenants and conditions
of this Sublease, (2) such assignee or merged entity shall agree in writing to
perform all of Subtenant's unperformed terms, covenants and conditions of this
Lease, and (3) Subtenant and the guarantor shall at all times remain primarily
obligated for the performance of all of the terms, covenants and conditions of
this Lease. Within twenty (20) days after the effective date of any such
assignment or transfer, Subtenant shall provide Sublandlord with a copy of the
fully signed and dated assignment, merger or consolidation documents.
15. BROKERS. Sublandlord and Subtenant represent and warrant to one another
that no real estate brokers are involved in the transaction giving rise to this
Sublease. Each party indemnifies and agrees to hold harmless the other party,
and at the other party's option defend the other party, from and against any and
all liabilities, including, without limitation, reasonable attorneys' fees,
arising from a claim by any broker claiming through the indemnifying party.
16. EXPENSES OF ENFORCEMENT. Notwithstanding any provision of this Sublease
or the Master Lease to the contrary, the losing party shall pay all reasonable
attorneys' fees and expenses incurred by the winning party in enforcing any
provision of this Sublease.
17. SUBTENANT'S REMEDIES. Subtenant may bring an action against Sublandlord
for any claim Subtenant may have against Sublandlord under this Sublease, but
Subtenant shall first give written notice of the claim to Sublandlord and shall
afford Sublandlord a period of thirty (30) days following written notice of such
claim (except that if such default cannot reasonably be cured within the thirty
(30) day period, Subtenant shall grant Sublandlord additional period of time to
cure such default, so long as Sublandlord has promptly commenced to cure such
default and is diligently pursuing such cure). Alternatively, if Sublandlord
fails to perform any of Sublandlord's obligations under this Lease, Subtenant
may with further notice to Sublandlord perform such obligations. In an emergency
involving imminent danger of material harm to persons or property (e.g., a
leaking roof materially and adversely affecting Subtenant's operations),
Subtenant may perform such obligation of Sublandlord after notifying
Sublandlord, but without first affording Sublandlord any opportunity to cure. If
Subtenant incurs any costs in connection with its performance, Sublandlord shall
pay them to Subtenant upon demand, provided such costs are reasonable.
18. OBLIGATION TO MITIGATE DAMAGES. Notwithstanding any provision of this
Sublease or the Master Lease to the contrary, Sublandlord and Subtenant
acknowledge that they each have a responsibility to act reasonably to mitigate
their respective damages in the event of a default by the other party under this
Sublease.
19. LIABILITY LIMITATION. Subtenant agrees that in no event shall the
directors, officers, employees or stockholders of Sublandlord ever be personally
liable for any liability under this Sublease. In no event shall Sublandlord be
obligated to pay to Subtenant any consequential damages, including, but not
limited to, lost profits to Subtenant.
20. SIGNAGE. Sublandlord shall cooperate with Subtenant, at Subtenant's
sole cost and expense, to permit Subtenant to place one or more signs on or
around the exterior of the Facility
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advertising Subtenant's presence in the Facility, which sign(s) shall comply
with all applicable zoning or other laws. If authorities will not permit
Subtenant to add additional exterior signs to the exterior of the Facility then
Sublandlord will equitably share with Subtenant existing sign space at the
Facility. All signage shall be subject to all consents or approvals required
under the Master Lease or under applicable zoning or other laws. Upon
termination of this Sublease, Subtenant shall remove all of its signage and
repair any damage to the Facility caused by said removal.
21. INTERPRETATION. The terms of this Sublease shall control to the extent
of any inconsistencies between it and the Master Lease.
22. SUBORDINATION. This Sublease shall in all respects be subject and
subordinate to the Master Lease. Notwithstanding anything else to the contrary
set forth in this Sublease, this Sublease only governs the relationship between
Sublandlord and Subtenant, and shall not be deemed to modify or limit the rights
and remedies of Master Landlord under the Master Lease.
23. EXISTING SUBLEASE. Upon the Commencement Date, the parties acknowledge
and agree that the Sublease dated September 24, 2002, entered into between the
parties with respect to the Premises shall be deemed terminated and that the
parties shall be released from any liabilities thereunder except to the extent
those liabilities accrued prior to the Commencement Date.
24. RETURN OF PREMISES. Upon termination of this Sublease, Subtenant shall
surrender the Premises and deliver them to Sublandlord in accordance with the
terms and conditions of the Master Lease, including Section 8.4 and Exhibit D.
The parties have signed this Sublease as of the day and year set forth
above.
SUBLANDLORD
APPLIED FILMS CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxxxxx
------------------------------------
Its: CFO
SUBTENANT
OPTERA COLORADO, INC.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxx
Its: President
[SIGNATURE PAGE TO THE SUBLEASE]
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GUARANTY
As an inducement to the Sublandlord to enter into the foregoing Sublease
with Subtenant, the undersigned, jointly and severally, unconditionally
guarantee payment to Sublandlord when due, or upon demand thereafter, without
deduction for any claim of offset or counterclaim of the Subtenant, the full
amount of all rental and other obligations or indebtedness due the Sublandlord
from the Subtenant under the terms of the Sublease throughout its initial Term
and any renewal Term, together with all expenses of collection and reasonable
counsel fees incurred by the Sublandlord by reason of default of the Subtenant.
The undersigned also unconditionally guarantee the Subtenant's performance of
each and every covenant under the terms of the Sublease throughout its initial
Term and any renewal Term.
The undersigned, without affecting their liability hereunder in any
respect, consent to and waive notice of all changes of terms of the Sublease,
any extension or renewal of the Sublease, any assignment of the Sublease, the
extension of time to pay, the release of the whole or any part of the
Subtenant's obligations by the Sublandlord, the settlement or compromise of
differences, the acceptance or release of security, the acceptance of notes or
any other form of obligation for the Subtenant's indebtedness, and the demand,
protest and notice of protest of such instruments or their endorsements. The
undersigned also consent to and waives notice of any arrangements or settlements
made in or out of court in the event of receivership, liquidation, readjustment,
bankruptcy, reorganization, arrangement or assignment for the benefit of
creditors of the Subtenant and anything whatsoever, whether or not herein
specified, which may be done or waived by or between the Sublandlord and the
Subtenant and any other person whose claims against the Subtenant have been or
shall be assigned or transferred to the Sublandlord. The obligation of the
undersigned is a primary and unconditional obligation and covers all
indebtedness and liabilities of the Subtenant to the Sublandlord arising under
the terms of the Sublease. This guaranty shall be enforceable before or after
proceeding against the Subtenant or against any security held by the Sublandlord
and shall be effective regardless of the solvency or insolvency of the Subtenant
at any time, or the extension or modification of the Sublease or the
indebtedness or obligations of the Subtenant to the Sublandlord by operation of
law or otherwise.
All liabilities of the Subtenant and of the undersigned shall mature
immediately upon the insolvency of the Subtenant or the undersigned, the
commission of an act of bankruptcy by the Subtenant or the undersigned, the
appointment of a receiver for the Subtenant or the undersigned for any of the
property of Subtenant or the undersigned, the filing of a voluntary or
involuntary petition in bankruptcy, reorganization or arrangement by or against
Subtenant or the undersigned, or the making of an assignment for the benefit of
creditors or the calling of a meeting of creditors by the Subtenant or the
undersigned.
This guaranty shall for all purposes be deemed to be made in, and shall be
governed by the laws of the state of Colorado. This guaranty shall be binding
upon the undersigned and their respective successors and assigns and shall inure
to the Sublandlord's benefit and to the benefit of its successors and assigns.
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Dated this 21st day of April, 2006.
OPTERA, INC.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxx
Its: President
[SIGNATURE PAGE TO THE GUARANTY]
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