EXHIBIT 10.8
SUBLEASE
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THIS SUBLEASE, made and entered into this 30 day of June, 2003, between Newport
Corporation, a Nevada corporation ("SUBLESSOR") and APA Optics, Inc., a
Minnesota corporation ("SUBLESSEE").
RECITALS:
A. A lease ("PRIME LEASE") dated December 22, 1995, was made and
entered into between Bass Lake Properties Partnership, L.L.P., as Landlord, and
Newport Corporation, as Tenant, and whereas Bass Lake Properties Realty has
succeeded to interest of the Landlord pertaining to Premises described as 5480
Nathan Lane, City of Plymouth, County of Hennepin, State of Minnesota and which
Prime Lease and all Amendments are attached hereto as Exhibit A.
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B. The parties hereto desire that the Sublessor sublet to the Sublessee
and that the Sublessee take from the Sublessor the portion of the Premises
leased under the Prime Lease containing approximately 37,020 square feet of
rentable area (hereinafter referred to as the "Sublet Area") as depicted on
Exhibit B, attached hereto and made a part hereof.
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NOW, THEREFORE, in consideration of the foregoing premises and of the
mutual covenants hereinafter contained, but subject to the consent thereto by
Landlord, the Sublessor does hereby sublet to the Sublessee and the Sublessee
does hereby rent and take from Sublessor, the Sublet Area, subject to the
following terms and conditions:
1. Sublease Term. The term of this Sublease shall commence on that date (the
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"Commencement Date") which is the earlier of (a) September 1, 2003 and (b)
the date Sublessee takes possession of the Sublet Area, and shall terminate
June 30, 2006 (the "Sublease Term"). Sublessee may take possession of the
Premises at any time after approval of this Sublease by Landlord, at
Sublessee's option. Without the further act or deed of the Landlord or of
either party hereto the term of this Sublease shall terminate and be of no
further force or effect on the date set forth above and upon such
termination the Sublessee shall immediately vacate the Sublet Area leaving
it in the condition which, under the terms of the Prime Lease, the Tenant
thereunder is obligated to leave the same.
2. Rent and Utilities.
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(a) Gross Rent. The Sublessee shall pay to the Sublessor Gross Rent for
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the Sublet Area in the amount of Eighteen Thousand Twenty-Five Dollars
($18,025.00) per month (the "Gross Rent"), in advance, on the first
day of each month during the Sublease Term commencing September 1,
2003, without deduction, abatement, set-off, prior notice or demand of
any kind. Except as set forth in subparagraph 2(b) below, such Gross
Rent includes all taxes, operating expenses and common area
maintenance charges relating to the Sublet Area.
(b) Utilities. From and after the Commencement Date, the Sublessee shall
be responsible for all costs of "Utilities" (as hereinafter defined)
provided to or used by the Sublet Area. As soon as practicable,
Sublessee shall transfer all accounts relating to Utilities into
Sublessee's name, and shall pay all costs of Utilities directly to the
Utility companies. Sublessor shall cooperate with Sublessee in
effecting such transfer. Pending such transfer, Sublessee shall pay to
Sublessee, as additional rent, an amount equal to all Utility charges
billed directly to Sublessor. As used herein, the term "Utilities"
shall mean all services generally considered to be utilities,
including but not limited to electricity, gas, [water,] trash/waste
disposal, janitorial, phone service, and Internet service.
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(c) Payment. All rent shall be paid to the Sublessor at the address set
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forth in Paragraph 7 hereof or at such other address and/or to such
other party as the Sublessor may from time to time elect by giving not
less than ten (10) days advance written notice thereof to the
Sublessee.
3. Use. The Sublessee may use the Sublet Area for general office, warehouse
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and light manufacturing purposes and for no other purposes whatsoever. The
Sublessee will not use the Sublet Area or permit the Sublet Area or any
part of the Property of which it is a part, to be used in violation of (a)
any of the terms, covenants or conditions of the Prime Lease, or (b) any
laws, ordinances, regulations or requirements of any governmental or
quasi-governmental authority having jurisdiction over the Sublet Area.
4. Prime Lease.
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(a) Incorporation of Prime Lease. Except as expressly provided to the
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contrary herein, all of the terms, covenants, conditions, and
restrictions of the Prime Lease (including Exhibits A and D through H
thereto) are incorporated herein by this reference as though fully set
forth at length. Sublessee takes the Sublet Area, and this Sublease is
expressly made, subject to all of the terms, covenants, conditions,
and restrictions of the Prime Lease. Except as modified by this
Sublease, Sublessee shall comply with and be bound by all of the
terms, covenants, conditions, and restrictions contained in the Prime
Lease, and shall perform all of Sublessor's obligations under the
Prime Lease. When the context requires, each reference in the Prime
Lease to Lessor shall be deemed to refer to Sublessor, and each
reference therein to Lessee shall be deemed to refer to Sublessee. As
between Sublessor and Sublessee, any inconsistency between the terms
of the Prime Lease and the terms of this Sublease shall be governed by
the terms of this Sublease. Sublessee acknowledges and represents that
it has received and reviewed the Prime Lease. If the Prime Lease is
terminated, this Sublease shall terminate simultaneously and any
unearned rent paid in advance shall be refunded to Sublessee.
Sublessee shall be bound to Sublessor (in addition to Landlord) under
the same terms and conditions of the Prime Lease as if the Prime Lease
had been an instrument executed between Sublessor and Sublessee, but
subject to the terms and conditions of this Sublease.
(b) Variations from Prime Lease. Sections 4, 5, 6, 9 and 25 of the Prime
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Lease, Exhibit E to the Prime Lease and Sections 1-5, 7 and 8 of
Exhibit H to the Prime Lease shall not apply to this Sublease.
(c) Performance Under Prime Lease. Sublessor's performance under this
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Sublease shall be subject to the following provisions:
(i) Sublessee recognizes that Sublessor is not in a position to
render any of the services or to perform any of the obligations
required of the Landlord by the terms of the Prime Lease.
Therefore, notwithstanding anything to the contrary contained in
this Sublease, Sublessee agrees that performance by Sublessor of
its obligations hereunder are conditional upon due performance by
the Landlord of its corresponding obligations under the Prime
Lease, and Sublessor shall not be liable to Sublessee for any
default of the Landlord under the Prime Lease. Sublessee shall
not have any claim against Sublessor by reason of the Landlord's
failure or refusal to comply with any of the provisions of the
Prime Lease unless such failure or refusal is a result of
Sublessor's act or failure to act. This Sublease shall remain in
full force and effect notwithstanding Landlord's failure or
refusal to comply with any such provisions of the Prime Lease and
Sublessee shall pay rent and additional rent and all other
charges provided for herein without any abatement, deduction or
setoff whatsoever. Sublessee covenants and warrants that it fully
understands and agrees to be subject to, and bound by, all of the
covenants, agreements, terms, provisions and conditions of the
Prime Lease, except as modified herein. Furthermore, Sublessee
and Sublessor further covenant not to take any action or do or
perform any act or fail to perform any act which would result in
the failure or breach of any of the covenants, agreements, terms,
provisions or conditions of the Prime Lease on the part of the
Lessee thereunder.
(ii) Whenever the consent of Landlord shall be required by, or
Landlord shall fail to perform its obligations under, the Prime
Lease, Sublessor agrees to use commercially reasonable efforts to
obtain, at Sublessee's sole cost and expense, such consent and/or
performance on behalf of Sublessee.
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(iii) To its actual knowledge, Sublessor represents and warrants to
Sublessee that the Prime Lease is in full force and effect, and
Sublessor has neither given nor received a notice of default
pursuant to the Prime Lease.
(iv) Sublessor agrees not to terminate the Prime Lease voluntarily, or
modify the Prime Lease in a manner that adversely affects
Sublessee's rights under this Sublease. Sublessee and Sublessor
shall each refrain from any act or omission that would result in
the failure or breach of any of the covenants, provisions or
conditions of the Prime Lease on the part of the Lessee under the
Prime Lease.
(d) Indemnity. Sublessee shall indemnify and hold Sublessor harmless from
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any and all liability, cost, expense, action or claim of nature
(including defaults under Prime Lease) arising out of or related to
Sublessee's use and occupancy of the Sublet Area.
(e) Landlord's Approval. Landlord's written consent to this Sublease in
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accordance with the terms of the Prime Lease is a condition subsequent
to the validity of this Sublease.
5. Hazardous Materials.
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(a) The term "Hazardous Material" as used in this Sublease shall mean any
product, substance, chemical, material or waste whose presence,
nature, quantity and/or intensity of existence, use, manufacture,
disposal, transportation, spill, release or effect, either by itself
or in combination with other materials expected to be on the premises,
is either: (i) potentially injurious to the public health, safety or
welfare, the environment, or the Property; (ii) regulated or monitored
by any governmental authority; or (iii) a basis for potential
liability of Sublessor to any governmental agency or third party under
any applicable statute or common law theory. Hazardous Materials shall
include, but not be limited to, hydrocarbons, petroleum, gasoline,
crude oil or any products or by-products thereof. "Reportable Use"
shall mean (i) the installation or use of any above or below-ground
storage tank(s), (ii) the generation, possession, storage, use,
transportation, or disposal of a Hazardous Material that requires a
permit from, or with respect to which a report, notice, registration
or business plan is required to be filled with, any governmental
authority, and (iii) the presence in, on, over, under or about the
Sublet Area of Hazardous Materials with respect to which any
applicable laws require that a notice be given to persons entering or
occupying the Sublet Area or neighboring properties.
(b) Sublessee shall not engage in any activity in or about the Sublet Area
which constitutes a Reportable Use of Hazardous Materials without the
express prior written consent of Sublessor. Notwithstanding the
foregoing, Sublessee may, without Sublessor's prior consent, but upon
notice to Sublessor and in compliance with all applicable
requirements, use any ordinary and customary materials reasonably
required to be used by Sublessee in the normal course of the permitted
use, so long as such use is not a Reportable Use and does not expose
the Sublet Area, the Property or neighboring properties to any
meaningful risk of contamination or damage or expose Sublessor to any
liability therefor. Prior to bringing Hazardous Materials upon the
Sublet Area or the Property, Sublessee shall submit a list of proposed
Hazardous Materials to the attention of Sublessor's Safety Officer.
Sublessor shall have a period of fifteen (15) days in which to review
and either approve or disapprove of such Hazardous Materials.
Sublessor may (but without any obligation to do so) condition its
consent to any Reportable Use of any Hazardous Materials by Sublessee
upon Sublessee's giving Sublessor such additional assurances as
Sublessor, in its reasonable discretion, deems necessary to protect
itself, the public, the Sublet Area, the Property and the environment
against damage, contamination or injury and/or liability therefor,
including but not limited to the installation (and, at Lessor's
option, removal on or before Sublease expiration or earlier
termination) of reasonably necessary protective modifications to the
Sublet Area (such as concrete encasements) and/or the deposit of an
additional Security Deposit.
(c) If Sublessee knows, or has reasonable cause to believe, that Hazardous
Materials have come to be located in, on, under or about the Sublet
Area or the Property, other than as previously consented to by
Sublessor, Sublessee shall immediately give Sublessor written notice
thereof, together with a copy of any statement, report, notice,
registration, application, permit, business plan, license, claim,
action, or proceeding given to, or received from, any governmental
authority or private party concerning the presence, spill, release,
discharge of, or exposure to, such Hazardous Materials, including, but
not limited to, all such documents as may be involved
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in any Reportable Use involving the Sublet Area. Sublessee shall not
cause or permit any Hazardous Materials to be spilled or released in,
on, under or about the Sublet Area (including, without limitation,
through the plumbing or sanitary sewer system).
(d) Sublessee shall indemnity, protect, defend and hold Sublessor, its
agents, employees, lenders and ground lessor, if any, the Property and
the Sublet Area, harmless from and against any and all damages,
liabilities, judgments, costs, claims, liens, expenses, penalties,
loss of permits and attorneys' and consultants' fees arising out of or
involving any Hazardous Materials brought onto the Sublet Area by or
for Sublessee of by anyone under Sublessee's control. Sublessee's
obligations under this Article shall include, but not be limited to,
the effects of any contamination or injury to person, property or the
environment created or suffered by Sublessee, and the cost of
investigation (including consultants' and attorneys' fees and
testing), removal, remediation, restoration and/or abatement thereof,
or of any contamination therein involved, and shall survive the
expiration or earlier termination of this Sublease. No termination,
cancellation or release agreement entered into by Sublessor and
Sublessee shall release Sublessee from its obligations under this
Sublease with respect to Hazardous Materials, unless specifically so
agreed by Sublessor in writing at the time of such agreement.
(e) Sublessee shall be solely responsible for instructing its employees
with respect to laws relating to Hazardous Materials compliance.
(f) The requirements of this paragraph are in addition to and not in lieu
of those set forth in the Prime Lease.
6. Notices to Landlord. The Sublessee will notify the Landlord forthwith in
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the event of any default that occurs under the provisions of this Sublease
which comes to the attention of the Sublessee, such notice to be given to
the Landlord by United States Mail, registered or certified, postage
prepaid, at the address provided for Landlord in the preamble to the Prime
Lease or as such other address as Tenant shall be advised to use by
Landlord.
7. Notices. Any notice provided for herein shall be deemed to be duly given if
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made in writing and delivered in person to an office of such party or
mailed by first class registered or certified mail, postage prepaid,
addressed as follows:
If to Sublessor: Newport Corporation
C/O Vice President Finance and Treasurer
1791 Deere Avenue
Irvine, CA 92606
If to Sublessee: APA Optics
C/O President
5480 Nathan Lane N
Plymouth, MN 55447
or to such other address with respect to either party hereto as such party
shall notify the other party hereto in writing. Any notice so given, if
mailed as aforesaid, shall be deemed received the second (2nd) day after it
is deposited in the United States Mail.
8. Limitation of Liability. Neither Sublessor or Landlord shall be liable to
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Sublessee, or those claiming through or under Sublessee, for injury, death
or property damage occurring in, on or about the Sublet Area to Sublessee
or an employee, customer or invitee of the Sublessee and Sublessee shall
indemnify Sublessor and Landlord and hold them harmless from any claim or
damage arising out of any injury, death or property damage occurring in, on
or about the Sublet Area to Sublessee or an employee, customer or invitee
of the Sublessee.
9. Insurance.
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(a) Sublessee shall, at its expense, maintain general commercial liability
insurance during the term of this Sublease as required by the Prime
Lease (See Exhibit A, Article II) in one or more companies acceptable
to Sublessor and Landlord, naming Sublessor, Landlord and Sublessee as
insureds, in form and substance reasonably
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acceptable to Sublessor and Landlord (such insurance to insure
performance by Sublessee or its obligations under paragraph 10
hereof), such insurance to be in those amounts as set forth under said
Article of the Prime Lease. Such insurance shall not relieve Sublessee
of its obligations under paragraph 8. Such insurance shall
specifically insure the performance by Sublessee of the indemnity
obligations contained in paragraph 8. If Sublessee fails to maintain
the insurance required to be obtained by Sublessee under this
paragraph and as provided in the Prime Lease, Sublessor may, without
any obligation to do so, obtain the same at Sublessee's expense.
(b) No policy of insurance obtained by the Sublessee under the provisions
of this paragraph 9 may be canceled or terminated except upon not less
than twenty (20) days written notice to Sublessor and Landlord, and
each policy shall contain a provision to that effect that the rights
of the Sublessor and Landlord thereunder will not be affected by any
defense which the insurer may have against the Sublessee or any other
party. True and correct copies of each policy of insurance, and
renewals thereof, obtained by the Sublessee under the provisions of
this paragraph 9, forthwith after issuance thereof, shall be delivered
to the Sublessor and to Landlord.
(c) The parties, on behalf of their respective insurance companies
insuring such losses, waive any right of subrogation that one may have
against the other.
10. Right of Entry. The Sublessor and Landlord, their authorized agents or
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attorneys, may at any reasonable time, enter the Sublet Area to inspect,
make repairs, improvements and/or changes in the Sublet Area or other
premises in the Property of which the Sublet Area is a part as the
Sublessor and/or Landlord may deem proper; and there shall be no diminution
of rent or liability on the part of the Sublessor or Landlord by reason of
inconvenience, annoyance, or injury to business.
11. Default; Remedies.
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(a) If the Sublessee defaults in the observance or performance of any of
the Sublessee's covenants, agreements or obligations hereunder wherein
the default can be cured by the expenditure of money, either the
Sublessor or Landlord may, but without obligations and without
limiting any other remedies which they may have by reason of such
default, cure the default, charge the cost thereof to the Sublessee
and the Sublessee shall pay the same forthwith upon demand, together
with interest thereon at the highest permissible rate of interest
allowed under the usury statutes of the State of Minnesota or in case
no such maximum rate of interest is provided, at the rate of 12% per
annum.
(b) If the Sublessee shall default as defined in Article 26 of the Prime
Lease, in the payment of any installment of rent or in the observance
or performance of any of the Sublessee's covenants, agreements or
obligations hereunder, or if any proceeding is commenced by or against
the Sublessee for the purpose of subjecting the assets of the
Sublessee to any law relating to bankruptcy or insolvency or for an
appointment of a receiver of Sublessee or of any of Sublessee's
assets, of if Sublessee makes a general assignment of Sublessee's
assets for the benefit of creditors, then, in any such event, the
Sublessor may, without process, re-enter immediately into the Sublet
Area and remove all persons and property therefrom, and at its option,
nullify and cancel this Sublease with respect to all future rights or
the Sublessee and have, regain, repossess and enjoy the Sublet Area,
anything herein to the contrary notwithstanding. Sublessee hereby
expressly waives the service of any notice in writing of intention to
re-enter as aforesaid, and also all right of restoration to possession
of the Sublet Area after re-entry or after judgment for possession
thereof. In the case of any such termination, the Sublessee will
indemnify the Sublessor against all loss of rents and other damages,
which it may incur by reason of such termination during the residue of
the term of this Sublease, and also against all attorney's fees and
expenses incurred in enforcing any of the terms of this Sublease.
(c) Neither Sublessee's interest in this Sublease, nor any interest herein
of Sublessee nor any estate hereby created in Sublessee shall pass to
any trustee or receiver or assignee for the benefit of creditors or
otherwise by operation of law. In the event Sublessee shall become
bankrupt or insolvent, or make a transfer in fraud of creditors, or
make an assignment for the benefit of creditors, or take or have taken
against Sublessee, or any proceeding of any kind under the provision
of the Federal Bankruptcy Code or under any other federal or state
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insolvency, bankruptcy, reorganization or similar act or if a receiver
or trustee is appointed for a substantial portion of Sublessee's
assets, this Sublease shall immediately terminate and be of no further
force or effect whatsoever, without the necessity for any further
action by Sublessor, except that Sublessee shall not be relieved of
obligations which have accrued prior to the date of such termination.
Upon such termination, the provisions herein relating to the
expiration or earlier termination of this Sublease shall control and
Sublessee shall immediately surrender the Sublet Area in the condition
required by the provisions of this Sublease. Additionally, Sublessor
shall be entitled to all relief, including recovery of damages from
Sublessee, which may from time to time be permitted, or recoverable,
under the Federal Bankruptcy Code or any other applicable laws.
12. Notwithstanding anything in this Sublease to the contrary, nothing
herein shall relieve any of the Sublessor's responsibilities to
Landlord and said responsibilities derived from the heretofore
described Prime Lease.
13. Assignment and Subleasing. The Sublessee shall not have the right to assign
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this Sublease or sublet all or any part of the Sublet Area without the
prior written consent of the Sublessor and of the Landlord which consent
shall not be unreasonably withheld.
14. Condition of Premises. Sublessee acknowledges and agrees that, as
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consideration for the reduced rental rate being provided to Sublessee
hereunder, Sublessee accepts the Sublet Area in its "as-is" condition,
without Sublessor providing or making any alterations, modifications or
refurbishment. Sublessee has made, or shall make, such independent
investigation as it deems necessary or appropriate concerning the Sublet
Area and the use thereof for Sublessee's intended purposes. Sublessor has
not made, and does not make any representations, warranties or agreements
as to any matters concerning the Sublet Area or the physical condition
thereof, including, but not limited to, square footage, compliance with
existing law, utilities, present or future zoning, the purposes for which
the Sublet Area are to be used, environmental condition, covenants,
conditions and restrictions, the heating, ventilating and air conditioning
systems, plumbing, electrical and other mechanical systems used in the
operation of the Sublet Area, roofs, walls and floors of the improvements,
and all other matters which, in Sublessee's judgment, may bear upon the
value and suitability of the Sublet Area for Sublessee's purposes. Neither
party is relying upon any statement or representation made by the other not
embodied in this Sublease. Except as expressly otherwise set forth in this
Sublease, Sublessor hereby specifically disclaims any warranty, guaranty or
representation, oral or written, past, present or future, of, as to or
concerning (i) the nature and condition of the Sublet Area, including
environmental conditions or the presence or absence of any Hazardous
Materials, (ii) the suitability thereof for any and all activities and uses
which Sublessee may elect to conduct thereon; and (iii) the compliance of
the Sublet Area or its operation with any laws, ordinances or regulations
of any government or other body (including without limitation, the
Americans with Disabilities Act ("ADA")).
15. Security Deposit. Sublessee agrees to deposit with Sublessor, on the date
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hereof, a Security Deposit in the amount of $18,025.00 which shall be held
by Sublessor, without interest, as security for the performance of
Sublessee's covenants and obligations under this Sublease. Upon the
occurrence if any event of default by Sublessee, Sublessor may from time to
time without prejudice to any other remedy provided herein or provided by
law, apply such Security Deposit to any arrears of rent or other payments
due Sublessor under this Sublease, and any other damage, injury, expense or
liability caused by such event of default without waiving such event of
default and Sublessee shall pay to Sublessor on demand the amount to
implied in order to restore the Security Deposit to its original amount of
$18,025.00. Although the Security Deposit shall be deemed the property of
the Sublessor, any remaining balance of such Security Deposit shall be
returned by Sublessor to Sublessee at such time after termination of this
Sublease, that all of Sublessee's obligations under this Sublease have been
fulfilled.
16. Additional Agreements by Sublessor. The Sublessor acknowledges and agrees
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to the following:
(a) It has the right to sublease the Sublet Area to Sublessee upon the
terms herein stated;
(b) Subject to the terms of this Sublease and the Prime Lease, Sublessee,
upon paying the rent and all other charges herein provided for and
observing and keeping the covenants, agreements, and condition of this
Sublease on its part to be kept, shall at all times during the term
and the extension term, if exercised, peaceably and quietly
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hold, occupy and enjoy the Premises, without any disturbance from
Sublessor or from the Owner or from any person claiming through them.
(c) It has observed and kept and, subject to the terms of this Sublease,
will continue to observe and keep all covenants, agreements and
conditions of the Prime Lease and has paid the rent and all other
charges therein provided, and shall not modify or surrender the Prime
Lease without the prior written consent of Sublessee (which shall not
be unreasonably withheld, conditioned or delayed) so long as this
Sublease is in effect.
(d) It shall provide to Sublessee copies of any and all notices Sublessor
receives from the Owner, or any third party, regarding the Premises or
the Lease as soon as reasonably practicable following receipt thereof.
(e) Sublessee shall have the option to terminate this Sublease Agreement
in the event Sublessor's total cash equivalency falls below one
million dollars ($1,000,000).
17. Use of Sublessor's Personal Property. During the Sublease Term, Sublessee
shall have the right to use the furniture, cubicles and phone system
located in the Sublet Area (the "Personal Property") at no charge. Exhibit
B contains a list of the Personal Property and outlines the areas of the
Sublet Area in which the Personal Property is located. Upon the expiration
or earlier termination of this Sublease, Sublessee shall leave the Personal
Property in the Sublet Area in the same condition as on the date of this
Sublease, normal wear and tear excepted. Sublessee acknowledges that the
Personal Property is being made available for Sublessee's use on an "as-is"
basis, without any warranty whatsoever. Sublessee agrees to protect,
defend, indemnify and hold Sublessor harmless from and against any and all
liabilities, claims, expenses, losses and damages, including, without
limitation, reasonable attorneys' fees, costs and disbursements, resulting
from use of the Personal Property.
18. Miscellaneous Provisions.
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a. Waiver. No purported waiver by Sublessor of any default by Sublessee
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of any term, condition or covenant contained herein shall be deemed to
be a waiver of such term, condition or covenant unless the waiver is
in writing and signed by Sublessor. No such waiver shall in any event
be deemed a waiver of any subsequent default under the same or any
other term, condition or covenant contained herein. Sublessor's
acceptance of rent or other charges following a default hereunder by
Sublessee shall not be deemed a waiver of such default or of any
earlier default by Sublessee of any term, condition or covenant of
this Sublease, other than the failure of Sublessee to pay the
particular rental so accepted, regardless of Sublessor's knowledge of
such default at the time of such acceptance. The consent or approval
by Sublessor to or of any act by Sublessee requiring Sublessor's
consent or approval shall not be deemed to waive the requirement of
Sublessor's consent or approval to or of any subsequent or similar
acts by Sublessee.
(b) Accord and Satisfaction. No payment by Sublessee or receipt by
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Sublessor of a lesser amount than rent and other charges herein
stipulated shall be deemed to be other than on account of the earliest
stipulated rent or other charge, nor shall any endorsement or
statement on any check or any letter accompanying a check or payment
of rent or other charges be deemed an accord or satisfaction.
Sublessor may accept such check or payment without charge or pursue
any other remedy in this Sublease.
(c) Entire Agreement. This Sublease sets forth the entire understanding
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between Sublessor and Sublessee concerning the Sublet Area and
incorporates all prior negotiations and understandings. The parties
hereto agree that there are no covenants, promises, agreements,
conditions or understandings, either oral or written, whatsoever
between the parties hereto with respect to any subject covered by this
Sublease other than those set forth herein. No alteration, amendment,
change or addition to this Sublease shall be binding upon Sublessor or
Sublessee unless in writing and signed by the party to be charged.
(d) No Partnership. Nothing contained in this Sublease shall be deemed or
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construed by the parties hereto or by any third person to create the
relationship of principal and agent or of partnership or of joint
venture, and neither the method of computation of rent nor any other
provision contained in this Sublease nor any act of the
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parties hereto shall be deemed to create any relationship between
Sublessor and Sublessee other than the relationship of Sublessor and
Sublessee.
(e) Captions and Section Numbers. The captions, article numbers, and
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indices appearing in this Sublease are inserted only as a matter of
convenience. They do not define, limit, construe, or describe the
scope or intent of the provisions of this Sublease.
(f) Partial Invalidity. If any term, covenant or condition of this
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Sublease or the application thereof to any person or circumstances
shall be invalid or unenforceable, the remainder of this Sublease, or
the application of such term, covenant or condition to persons or
circumstances other than those as to which it is held invalid shall
both be unaffected thereby, and each term, covenant or condition of
this Sublease shall be valid and be enforced to the fullest extent
permitted by law.
(g) Authority. Sublessee does hereby represent and warrant that Sublessee
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is duly organized, validly existing and in good standing under the
laws of the State in which it was organized and has all required power
and authority to own, sublease, hold and operate properties and
conduct business in the State of Minnesota, and concurrently with the
execution and delivery of this Sublease, Sublessee shall submit to
Sublessor a resolution of Sublessee's directors (or shareholders)
(certified by Sublessee's secretary) confirming Sublessee's authority
to enter into this Sublease.
(h) Governing Law. This Sublease is deemed to have been made in the State
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of Minnesota, and its interpretation, its construction and the
remedies for its enforcement or breach are to be applied pursuant to,
and in accordance with the laws of the State of Minnesota for
contracts made and to be performed therein.
(i) Capitalized Terms. All terms spelled with initial capital letters in
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this Sublease that are not expressly defined in this Sublease shall
have the respective meaning given such terms in the Prime Lease.
(j) Counterparts. This Sublease may be executed in facsimile and in any
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number of counterparts, each of which shall be deemed to be an
original and all of which together shall be deemed to be one and the
same instrument.
(k) Attorneys' Fees. If any dispute, action, lawsuit or proceeding
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relating to this Sublease, or any default thereunder, whether or not
any action, lawsuit or proceeding is commenced, the non-prevailing
party shall reimburse the prevailing party for its attorneys' fees and
all fees, costs and expenses incurred in connection with such dispute,
action, lawsuit or proceeding, including, without limitation, any
post-judgment fees, costs or expenses incurred on any appeal, in
collection of any judgment or in appearing in any bankruptcy
proceeding.
IN WITNESS WHEREOF, each of the parties hereto has caused their presence to
be duly executed as of the day and year first above written.
SUBLESSOR: SUBLESSEE:
Newport Corporation APA Optics, Inc.
By: By:
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William R. Abbott, Anil Jain,
Vice President of Finance and Treasurer President
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