Exhibit 10.17
SUBLEASE
1. PARTIES. This Sublease, dated for the reference purposes only, October
27, 1997, is made by and between Zycad Corporation, a Delaware Corporation
(herein called "Sublessor") and Xxxxxxx Technology, Inc., a Delaware
Corporation (herein called "Sublessee").
2. PREMISES. Sublessor hereby subleases to Sublessee and Sublessee hereby
subleases from Sublessor for the term, at the rental, and upon all of the
conditions set forth herein, that certain real property situated in the
County of Alameda, State of California, commonly known as 00000 Xxxxxxx
Xxxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 and described as approximately 30,231
square feet (as shown on Exhibit "A" attached hereto), a portion of a 61,454
[plus-minus sign] square foot, free-standing, research and development
building. Said real property, including the land and all improvements
thereon, is hereinafter called the "Premises".
3. TERM.
3.1 TERM. The term of this Sublease shall be for (See Addendum) unless
sooner terminated pursuant to any provision hereof.
3.2 DELAY IN COMMENCEMENT. Notwithstanding said commencement date, if for
any reason Sublessor cannot deliver possession of the Premises to Sublessee
on said date, Sublessor shall not be subject to any liability therefore, nor
shall such failure affect the validity of this Lease or the obligations of
Sublessee hereunder or extend the term hereof, but in such case Sublessee
shall not be obligated to pay rent until possession of the Premises is
tendered to Sublessee, provided, however, that if Sublessor shall not have
delivered possession of the Premises within sixty (60) days from said
commencement date. Sublessee may, at Sublessee's option, by notice in writing
to Sublessor within ten (10) days thereafter, cancel this Sublease, in which
event the parties shall be discharged from all obligations thereunder. If
Sublessee occupies the Premises prior to said commencement date, such
occupancy shall be subject to all provisions hereof, such occupancy shall not
advance the termination date and Sublessee shall pay rent for such period at
the initial monthly rates set forth below.
4. RENT. Sublessee shall pay to Sublessor as rent for the Premises equal
monthly payments of (See Addendum) in advance, on the 1st day of each month
of the term hereof. Sublessee shall pay Sublessor upon the execution hereof
(See Addendum) as rent for (See Addendum). Rent for any period during the
term hereof which is for less than one month shall be a prorata portion of
the monthly installment. Rent shall be payable in lawful money of the United
States to Sublessor at the address stated herein or to such other persons or
at such other places as Sublessor may designate in writing.
5. SECURITY DEPOSIT. Sublessee shall deposit with Sublessor upon execution
hereof $39,300.00 as security for Sublessee's faithful performance of
Sublessee's obligations hereunder. If Sublessee fails to pay rent or other
charges due hereunder, or otherwise defaults with respect to any provision of
this Sublease, Sublessor may use, apply or retain all or any portion of said
deposit for the payment of any rent or other charge in default or for the
payment of any other sum to which Sublessor may become obligated by reason of
Sublessee's default, or to compensate Sublessor for any loss or damage which
Sublessor may suffer thereby. If Sublessor so uses or applies all or any
portion of said deposit, Sublessee shall within ten (10) days after written
demand therefore deposit cash with Sublessor in an amount sufficient to
restore said deposit to the full amount hereinabove stated and Sublessee's
failure to do so shall be a material breach of this Sublease. Sublessor shall
not be required to keep said deposit separate from its general accounts. If
Sublessee performs all of Sublessee's obligations hereunder, said deposit, or
so much thereof as has not theretofore been applied by Sublessor, shall be
returned, without payment of interest or other increment for its use to
Sublessee (or at Sublessor's option to the last assignee, if any, of
Sublessee's interest hereunder) at the expiration of the term hereof, and
after Sublessee has vacated the Premises. No trust relationship is created
herein between Sublessor and Sublessee with respect to said Security Deposit.
6. USE.
6.1 USE. The Premises shall be used and occupied only for light
manufacturing, office, distribution, sales and related functions, and
research and development and for no other purpose.
6.2 COMPLIANCE WITH LAW.
(a) Sublessor warrants to Sublessee that the Premises in its existing state
but without regard to the use for which Sublessee will use the Premises does
not violate any applicable building code regulation or ordinance at the time
that this Sublease is executed. In the event that it is determined that this
warranty has been violated, then it shall be the obligation of the Sublessor,
after written notice from Sublessee, to promptly, at Sublessor's sole cost
and expense rectify any such violation. In the event that Sublessee does not
give to Sublessor written notice of the violation of this warranty within 1
year from the commencement of the term of this Sublease, it shall be
conclusively deemed that such violation did not exist and the correction of
the same shall be the obligation of the Sublessee.
(b) Except as provided in the attached Addendum paragraph 6.2(a), Sublessee
shall, at Sublessee's expense, comply promptly with all applicable statutes,
ordinances, rules, regulations, orders, restrictions of record, and
requirements in effect during the term or any part of the term hereof
regulating the use by Sublessee of the Premises. Sublessee shall not use or
permit the use of the Premises in any manner that will tend to create waste
or a nuisance or if there shall be more than one tenant of the building
containing the Premises, which shall tend to disturb such other tenants.
6.3 CONDITION OF PREMISES. Except as provided in paragraph 6.2(a) Sublessee
hereby accept the Premises in their condition existing as of the date of the
execution hereof subject to all applicable zoning, municipal, county and
state laws, ordinances, and regulations governing and regulating the use of
the Premises, and accept this Sublease subject thereto and to all matters
disclosed hereby and by any exhibits attached hereto. Sublessee acknowledges
that neither Sublessor nor Sublessor's agents have made any representation or
warranty as to the suitability of the Premises for the conduct of Sublessee's
business.
7. MASTER LEASE.
7.1. Sublessor is the lessee of the Premises by virtue of a lease,
hereinafter referred to as the "Master Lease", a copy of which is attached
hereto marked Exhibit 1 dated March 6, 1992, wherein Renco Equities IV, a
general partnership is the lessor hereinafter referred to as the "Master
Lessor".
7.2. This Sublease is and shall be at all times subject and subordinate to
the Master Lease.
7.3. The terms, conditions and respective obligations of Sublessor and
Sublessee to each other under this Sublease shall be the terms and conditions
of the Master Lease except for those provisions of the Master Lease which are
directly contradicted by this Sublease in which event the terms of this
Sublease document shall control over the Master Lease. Therefore, for the
purposes of this Sublease, wherever in the Master Lease the word "Lessor" is
used it shall be deemed to mean the Sublessor herein and wherever in the
Master Lease the word "Lessee" is used it shall be deemed to mean the
Sublessee herein.
7.4. During the term of this Sublease and for periods subsequent for
obligations which have arisen prior to the termination of this Sublease,
Sublessee does hereby expressly assume and agree to perform and comply with,
for the benefit of Sublessor and Master Lessor, each and every obligation of
Sublessor under the Master Lease except for the following paragraphs which
are excluded therefrom Article 1.1E, 1.1F, 1.1G, 1.1I, 1.1K, 1.1N, 1.1S. 2.7,
13.2, 13.10, 14.2, First Addendum to Lease Xxxxxxxxxx 0, 0, 0, 00, Xxxxxxx
"C", Exhibit "D", Option to Renew Lease.
7.5. The obligations that Sublessee has assumed under paragraph 7.4 hereof
are hereinafter referred to as the "Sublessee's Assumed Obligations". The
obligations that Sublessee has NOT assumed under paragraph 7.4 hereof are
hereinafter referred to as the "Sublessor's Remaining Obligations."
7.6. Sublessee shall hold Sublessor free and harmless of and from all
liability, judgments, costs, damages, claims or demands, including reasonable
attorneys fees, arising out of Sublessee's failure to comply with or perform
Sublessee's Assumed Obligations.
7.7. Sublessor agrees to maintain the Master Lease during the entire term of
this Sublease, subject, however, to any earlier termination of the Master
Lease without the fault of the Sublessor, and to comply with or perform
Sublessor's Remaining Obligations and to hold Sublessee free and harmless of
and from all liability, judgments, costs, damages, claims or demands arising
out of Sublessor's failure to comply with or perform Sublessor's Remaining
Obligations.
7.8. Sublessor represents to Sublessee that the Master Lease is in full
force and effect and that no default exists on the part of any party to the
Master Lease.
8. ASSIGNMENT OF SUBLEASE AND DEFAULT.
8.1. Sublessor hereby assigns and transfers to Master Lessor the Sublessor's
interest in this Sublease and all rentals and income arising therefrom,
subject however to terms of Paragraph 8.2 hereof.
8.2. Master Lessor, by executing this document, agrees that until a default
shall occur in the performance of Sublessor's Obligations under the Master
Lease, that Sublessor may receive, collect and enjoy the rents accruing under
this Sublease. However, if Sublessor shall default in the performance of its
obligations to Master Lessor then Master Lessor may, at its option, receive
and collect, directly from Sublessee, all rent owing and to be owned under
this Sublease. Master Lessor shall not, by reason of this assignment of the
Sublease nor by reason of the collection of the rents from the Sublessee, be
deemed liable to Sublessee for any failure of the Sublessor to perform and
comply with Sublessor's Remaining Obligations.
8.3. Sublessor hereby irrevocably authorizes and directs Sublessee, upon
receipt of any written notice from the Master Lessor stating that a default
exists in the performance of Sublessor's obligations under the Master Lease,
to pay to Master Lessor the rents due and to become due under the Sublease.
Sublessor agrees that Sublessee shall have the right to rely upon any such
statement and request from the Master Lessor and that Sublessee shall pay
such rents to Master Lessor without any obligation or right to inquire as to
whether such default exists and notwithstanding any notice from or claim from
Sublessor to the contrary and Sublessor shall have no right or claim against
Sublessee for any such rents so paid by Sublessee.
8.4. No changes or modifications shall be made to this Sublease without the
consent of Master Lessor.
9. CONSENT OF MASTER LESSOR.
9.1. In the event that the Master Lease requires that Sublessor obtain the
consent of Master Lessor to any subletting by Sublessor then this Sublease
shall not be effective unless within 30 days of the date hereof. Master
Lessor signs this Sublease thereby giving its consent to this Subletting.
9.2. In the event that the obligations of the Sublessor under the Master
Lease have been guaranteed by third parties then this Sublease, nor the
Master Lessor's consent, shall not be effective unless, within 10 days of the
date hereof, said guarantors sign this Sublease thereby giving guarantors
consent to this Sublease and the terms thereof.
9.3. In the event that Master Lessor does give such consent then
(a) Such consent with not release Sublessor of its obligations or after the
primary liability of Sublessor to pay the rent and perform and comply with
all of the obligations of Sublessor to be performed under the Master Lease.
(b) The acceptance of rent by Master Lessor from Sublessee or any one else
liable under
the Master Lease shall not be deemed a waiver by Master Lessor of any
provisions of the Master Lease.
(c) The consent to this Sublease shall not constitute a consent to any
subsequent subletting or assignment.
(d) In the event of any default of Sublessor under the Master Lease, Master
Lessor may proceed directly against Sublessor, any guarantors or any one else
liable under the Master Lease or this Sublease without first exhausting
Master Lessor's remedies against any other person or entity liable thereon to
Master Lessor.
(e) Master Lessor may consent to subsequent sublettings and assignments of
the Master Lease or this Sublease or any amendments or modifications thereto
without notifying Sublessor nor any one else liable under the Master Lease
and without obtaining their consent and such action shall not relieve such
persons from liability.
(f) In the event that Sublessor shall default in its obligations under the
Master Lease, then Master Lessor, at its option and without being obligated
to do so, may require Sublessee to attorn to Master Lessor in which event
Master Lessor shall undertake the obligations of Sublessor under this
Sublease from the time of the exercise of said option to termination of this
Sublease but Master Lessor shall not be liable for any prepaid rents nor any
security deposit paid by Sublessee, nor shall Master Lessor be liable for any
other defaults of the Sublessor under the Sublease.
9.4 The signatures of the Master Lessor and any Guarantors of Sublessor at
the end of this document shall constitute their consent to the terms of this
Sublease.
9.5. Master Lessor acknowledges that, to the best of Master Lessor's
knowledge, no default presently exists under the Master Lease of obligations
to be performed by Sublessor and that the Master Lease is in full force and
effect.
9.6. In the event that Sublessor defaults under its obligations to be
performed under the Master Lease by Sublessor, Master Lessor agrees to
deliver to Sublessee a copy of any such notice of default. Sublessee shall
have the right to cure any default of Sublessor described in any notice of
default within 10 days after service of such notice of default on Sublessee.
If such default is cured by Sublessee then Sublessee shall have the right of
reimbursement and offset from and against Sublessor.
10. BROKERS FEE.
10.1. Upon execution hereof by all parties, Sublessor shall pay to Colliers
Xxxxxxx International, a licensed real estate broker, (herein called
"Broker"), a fee as set forth in a separate agreement between Sublessor and
Broker, or in the event there is no separate agreement between Sublessor and
Broker, the sum of $n/a for brokerage services rendered by Broker to
Sublessor in this transaction.
10.2. Sublessor agrees that if Sublessee exercises any option or right of
first refusal granted by Sublessor herein, or any option or right
substantially similar thereto, either to extend the terms of this Sublease,
to renew this Sublease, to purchase the Premises, or to lease or purchase
adjacent property which Sublessor may own or in which Sublessor has an
interest, or if Broker is the procuring cause of any lease, sublease, or sale
pertaining to the Premises or any adjacent property which Sublessor may own
or in which Sublessor has an interest, then as to any of said
transactions Sublessor shall pay to Brokers a fee, in cash, in accordance
with the schedule of Broker in effect at the time of the execution of this
Sublease. Notwithstanding the foregoing, Sublessor's obligation under this
Paragraph 10.2 is limited to a transaction in which Sublessor is acting as a
sublessor, lessor, or seller.
10.3 Master Lessor agrees, by it consent to this Sublease, that if Sublessee
shall exercise any option or right of first refusal granted to Sublessee by
Master Lessor in connection with this Sublease, or any option or right
substantially similar thereto, either to extend the Master Lease, to renew
the Master Lease, to purchase the Premises or any part thereof, or to lease
or purchase adjacent property which Master Lessor may own or in which Master
Lessor has an interest, or if Broker is the procuring cause of any other
lease or sale entered into between Sublessee and Master Lessor pertaining to
the Premises, any part thereof, or any adjacent property which Master Lessor
owns or in which it has an interest, then as to any of said transactions
Master Lessor shall pay to Broker a fee, in cash, in accordance with the
schedule of Broker in effect at the time of its consent to this Sublease.
10.4. Any fee due from Sublessor or Master Lessor hereunder shall be due and
payable upon the exercise of any option to extend or renew, as to any
extension or renewal, upon the execution of any new lease, as to a new lease
transaction or the exercise of a right of first refusal to lease, or at the
close of escrow, as to the exercise of any option to purchase or other sale
transaction.
10.5. Any transferee of Sublessor's interest in this Sublease, or of Master
Lessor's interest in the Master Lease, by accepting an assignment thereof,
shall be deemed to have assumed the respective obligations of Sublessor or
Master Lessor under this Paragraph 10. Broker shall be deemed to be a
third-party beneficiary of this paragraph 10.
11. ATTORNEY'S FEES. If any party or the Broker named herein brings an
action to enforce the terms hereof or to declare right hereunder, the
prevailing party in any such action, on trial and appeal, shall be entitled
to his reasonable attorney's fees to be paid by the losing party as fixed by
the Court. The provision of this paragraph shall inure to the benefit of the
Broker named herein who seeks to enforce a right hereunder.
12. ADDITIONAL PROVISIONS. [If there are no additional provisions draw a line
from this point to the next printed word after the space left here. If there
are additional provisions place the same here].
13. ADDENDUM. Attached hereto and made a part hereof.
IF THIS SUBLEASE HAS BEEN FILLED IN IT HAS BEEN PREPARED FOR SUBMISSION TO
YOUR ATTORNEY FOR HIS APPROVAL. NO REPRESENTATION OR RECOMMENDATION IS MADE
BY THE REAL ESTATE BROKER OR ITS AGENTS OR EMPLOYEES AS TO THE LEGAL
SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS SUBLEASE OR THE
TRANSACTION RELATING THERETO.
ZYCAD CORPORATION, A DELAWARE CORPORATION
By: /s/ XXXXXXX X. XXXXX
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By: XXXXXXX X. XXXXX, VP, SEC. & GENERAL COUNSEL
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(print name and title)
"Sublessor" (Corporate Seal)
XXXXXXX TECHNOLOGY, INC., A DELAWARE CORPORATION
By: /s/ XXX PLOSNAY
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By: XXX PLOSNAY - Director, Ops.
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(print name and title)
"Sublessee" (Corporate Seal)
RENCO EQUITIES IV, A GENERAL PARTNERSHIP
By: /s/ Xxxxxx X. Vermeil
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By: Xxxxxx X. Vermeil - General Partner
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(print name and title)
"Master Lessor" (Corporate Seal)
