Exhibit 10.1
ZARLINK SEMICONDUCTOR INC.
(formerly Mitel Corporation)
-and-
METASOLV SOFTWARE CANADA INC.
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S U B L E A S E
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Osler, Hoskin & Harcourt LLP
TABLE OF CONTENTS
Page
1. Capitalized Terms ..................................................... 2
2. Definitions ........................................................... 2
3. Demise and Subterm .................................................... 2
4. Subtenant's Right to Extend the Subterm ............................... 2
5. Early Access .......................................................... 3
6. Basic Rent ............................................................ 4
7. Additional Rent and Escalation Payments ............................... 4
8. Rights of First Refusal ............................................... 5
9. Rights of Expansion ................................................... 5
10. Payments .............................................................. 5
11. Subtenant's Covenants ................................................. 5
12. Subtenant's Breach .................................................... 7
13. Sublandlord's Covenants ............................................... 7
14. Use and Access ........................................................ 10
15. Parking ............................................................... 10
16. Insurance ............................................................. 10
17. Subtenant's Assigning, Subletting, Etc. ............................... 10
18. Other Terms of Head Lease Incorporated ................................ 11
19. Exercise of Rights .................................................... 11
20. Notices and Consents, Etc. ............................................ 11
21. Successors and Assigns ................................................ 12
22. Further Assurances .................................................... 12
23. Governing Law ......................................................... 13
SCHEDULE A HEAD LEASE ................................................. 1
SCHEDULE B FLOOR PLAN SHOWING SUBLET PREMISES SHADED .................. 1
schedule c form of subtenant letter of credit ......................... 1
THIS SUBLEASE is made as of this 4th day of June, 2002
Pursuant to the Short Forms of Leases Act of Ontario
BETWEEN:
Zarlink Semiconductor Inc.,
(formerly Mitel Corporation, the "Sublandlord")
- and -
MetaSolv Software Canada Inc.
(the "Subtenant").
RECITALS:
A. By a lease (the "Head Lease") made as of March 27, 2001, a copy of
which is attached hereto as Schedule A, Mitel Research Park Corporation
(the "Head Landlord")leased to Mitel Corporation (a predecessor company
of the Sublandlord), for a term commencing on March 27, 2001 and
terminating on March 26, 2011, upon and subject to the terms of the
Head Lease, certain office space and laboratory space in the building
complex municipally known as 400 March Road and 340, 350 and 360 Legget
Drive, in the City of Ottawa, in the Province of Ontario (the
"Building"), which premises are more particularly described in the Head
Lease including, inter alia, those portions of the first and second
floors of the Building which portions contain approximately 31,358
square feet and are shown shaded on the floor plans attached hereto as
Schedule B (the "Sublet Premises).
B. The Sublet Premises are comprised of approximately 6,000 square feet of
Rentable Area on the ground floor of 360 Legget Drive and 25,358 square
feet of Rentable Area on the second floor of 360 Legget Drive. The
Sublet Premises includes certain office (the "Office Space") and
certain laboratory space (the "Laboratory Space"), both as shown shaded
on Schedule B.
C. Subject to the Head Landlord's consent, the Sublandlord and Subtenant
have agreed to sublet the Sublet Premises on the terms set forth
herein.
THEREFORE in consideration of the rents, covenants and agreements hereinafter
set forth and other good and valuable consideration and the sum of $10.00 paid
by each party to each other party, the receipt and sufficiency of which are
hereby acknowledged by each party, the parties covenant and agree as follows:
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1. Capitalized Terms
Each capitalized term used herein shall have the meaning ascribed to it herein
and if not herein then in the Head Lease.
2. Definitions
"Business Day" means any day, other than a Saturday or Sunday, on which the
chartered banks in Ottawa, Ontario are open for commercial banking business
during normal banking hours;
"Rent" means Basic Rent and any other monthly payments to be made by the
Subtenant to the Sublandlord hereunder; and
"Rentable Area" means the rentable area of the Sublet Premises as evidenced by a
Certificate of Measurement prepared by the Sublandlord in accordance with the
"Standard Method for Measuring floor Area in Office Buildings" published by the
Buildings Owners and Managers Association ("BOMA") International (An American
National Standard, approved June 7, 1996 by American National Standards
Institute, Inc.)
3. Demise and Subterm
Subject to the consent of the Head Landlord, the Sublandlord demises and
subleases the Sublet Premises to the Subtenant and the Subtenant subleases the
Sublet Premises from the Sublandlord, for a term (hereinafter called the
"Subterm") commencing on July 1, 2002 (hereinafter called the "Commencement
Date") and terminating on June 30, 2007 upon and subject to the terms of this
Sublease.
4. Subtenant's Right to Extend the Subterm
Provided that, at the end of the Subterm, the Sublandlord does not require the
Sublet Premises for the purposes of carrying on its business, the Subtenant
shall have the right to extend this Sublease (the "Extension Term") commencing
on the day following the last day of the Subterm and extending until March 25,
2011, subject to the following terms and conditions:
(a) the Subtenant's right to extend shall not enure to the benefit of
or be exercisable by any subtenant of the Subtenant, and shall
only enure to the benefit of and be exercisable by an assignee of
the Subtenant if:
(i) the assignee is an affiliate (as defined in Section 12.2 of
the Head Lease) of the Subtenant in respect of whom the
consent of the Sublandlord is not required in order to assign
this Sublease, or
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(ii) at the time the consent of the Sublandlord to the assignment
of this Sublease to the assignee is obtained, the Sublandlord
also consents to the assignment of such right to extend to
the assignee, which consent the Sublandlord agrees shall not
be unreasonably or arbitrarily withheld, conditioned or
delayed.
(b) the Subtenant shall not be entitled to any right of extension if,
at the time of the giving of the notice of exercise thereof, the
Subtenant is in material default hereunder and such default is not
cured within the time permitted by this Sublease, or if prior
thereto the Subtenant has been in default hereunder on a
consistent basis and has been given prior written notice of such
event of default or events of default by the Sublandlord;
(c) the Sublandlord shall provide the Subtenant with written notice at
least 6 months prior to the expiration of the Subterm stating
whether it requires the use of the Sublet Premises at the end of
the Subterm for the purpose of carrying on its business (and if
such is the case then paragraph 13(f) shall apply) and if the
Sublandlord shall fail to give such notice it shall be deemed not
to require the Sublet Premises for the purpose of carrying on its
business;
(d) the right of extension shall be exercisable by written notice by
the Subtenant to the Sublandlord at least 4 months and not more
than 6 months prior to the expiration of the Subterm;
(e) if the Subtenant has properly exercised its right of extension,
this Sublease shall be extended for the Extension Term on the same
terms and conditions as are contained in this Sublease
supplemented as follows: (i) all references to the Subterm shall
be deemed to include the Extension Term, (ii) the Basic Rent
during the Extension Term will be as stipulated in subsection (f)
below, (iii) there shall be no further right to extend and (iv)
there shall be no Subtenant inducements; and
(f) the annual Basic Rent during the Extension Term shall be CDN$20.00
per square foot of Rentable Area in the Sublet Premises.
5. Early Access
Immediately upon execution of this Sublease by the Sublandlord and the
Subtenant, but subject to the following conditions precedent:
(a) payment by the Subtenant to the Sublandlord of the first monthly
instalment of Basic Rent (as defined below) and the Security
Deposit (as defined below); and
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(b) the Subtenant obtaining all insurance required under the Head
Lease and this Sublease,
the Subtenant may access the Sublet Premises without any obligation to pay Rent
until the Commencement Date. If the Head Landlord does not consent to this
Sublease then the first monthly instalment of Basic Rent and the Security
Deposit shall be refunded to the Subtenant.
6. Basic Rent
The Subtenant covenants to pay as Basic Rent commencing on the Commencement Date
the sum of CDN$18.00 per square foot of Rentable Area per annum in equal monthly
instalments payable in advance on the first day of each and every month during
the Subterm. The Sublandlord, at its expense, prior to the Commencement Date or
as soon as possible thereafter, shall provide a Certificate prepared by a
certified Ontario Land Surveyor (OLS) as to the Rentable Area of the Sublet
Premises. The Subtenant agrees to pay a pro-rated amount of Basic Rent for any
part month during the Subterm. The Subtenant agrees to pay upon execution hereof
the first monthly instalment of Basic Rent and the last monthly instalment of
Basic Rent (the "Security Deposit"). If the Subtenant is not in default under
this Sublease the Security Deposit shall be credited to the Basic Rent payable
for the last month of the Subterm.
7. Additional Rent and Escalation Payments
(a) The Subtenant shall not pay any Additional Rent as defined in the
Head Lease except as set out herein. Commencing on July 1, 2003
and during the remainder of the Subterm, the Subtenant agrees to
pay in equal monthly instalments payable in advance on the first
day of each and every month (an "Escalation Payment") the amount
by which the annual Additional Rent payable by the Sublandlord to
the Landlord under the Head Lease for the Sublet Premises
increases over and above the amount of annual Additional Rent paid
by the Sublandlord to the Landlord under the Head Lease for the
Sublet Premises during the year ending on December 31, 2002 (the
"Base Year").
(b) If the Subtenant exercises its right to extend the Subterm, then
during such Extension Term, the monthly Escalation Payments shall
be calculated using a Base Year of 2007.
(c) In addition to the Escalation Payments set out above, the
Subtenant agrees to pay to the Sublandlord on a monthly basis the
cost of all electrical power consumed in the Laboratory Space as
charged to the Sublandlord by the Head Landlord and including any
administrative fees of the Head Landlord.
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8. Rights of First Refusal
If, at any time and from time to time, the Sublandlord receives a bona fide
third party offer to sublet any space adjoining the Sublet Premises which the
Sublandlord is prepared to accept, the Sublandlord shall first notify the
Subtenant in writing of this fact and of the terms of such offer to sublet such
space. The Subtenant shall then have the right, exercisable by notice in writing
to the Sublandlord within five Business Days after receipt by the Subtenant of
the written notice from the Sublandlord, to sublet such space on the same terms
as those contained in such third party offer. If the Subtenant does not exercise
such right within such period, the Sublandlord shall be free to sublet such
space on the terms set out in such third party offer.
9. Rights of Expansion
If, at any time and from time to time, space within Phase III of the Leased
Premises becomes available to be sublet, whether adjoining the Sublet Premises
or not, the Sublandlord shall notify the Subtenant in writing of this fact prior
to advertising the availability of such space or seeking or entertaining any
offer to sublet such space. Such notice shall set out the approximate amount of
space available to be sublet. The Subtenant shall then have the right,
exercisable by notice in writing to the Sublandlord within five Business Days
after receipt by the Subtenant of the written notice from the Sublandlord, to
make an offer to the Sublandlord to rent a portion of or all such space on terms
identical to those set out in this Sublease, provided that, if the Subtenant
wishes to sublet only a portion of such space, the remaining portion of such
space shall be of a size which is commercially viable for subletting to a third
party. If such right to expand is not exercised by the Subtenant within such
period, the Sublandlord shall be free to sublet such space on such terms or
substantially such terms to any other person.
10. Payments
All payments provided for in this Sublease shall be in Canadian currency and
shall be made by the Subtenant to the Sublandlord at its address provided in
section 21 hereof or as the Sublandlord otherwise directs by notice.
11. Subtenant's Covenants
The Subtenant also covenants and agrees with the Sublandlord:
(a) to perform all of the obligations of the Tenant under the Head
Lease and to be bound by the terms of the Head Lease as such
obligations and terms relate to the Sublet Premises only, and in
each case as such obligations and terms may be qualified by
another provision of this Sublease, and except as to Rent and
other monetary obligations, the obligations of the Subtenant in
that respect being limited to the Rent and the other amounts which
are payable under this Sublease;
(b) to perform all of the obligations of the Subtenant under this
Sublease;
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(c) not to do or omit to do any act in or around the Sublet Premises
which would cause a breach of the Sublandlord's obligations as
Tenant under the Head Lease;
(d) to indemnify and save harmless the Sublandlord against and from
any and all expenses, costs, damages, suits, actions or
liabilities ("Costs") arising out of the failure of the Subtenant
to perform any of its obligations hereunder and from all claims
and demands of every kind and nature ("Claims") made by any person
or persons to or against the Sublandlord for all and every manner
of Costs incurred by or injury or damage to such person or persons
or his, her or their property, if such Claims arise out of the use
and occupation of the Sublet Premises, the cafeteria or the
fitness centre (i.e., Zarfit) by the Subtenant or any other person
authorized by the Subtenant, and from all Costs incurred in and
about any such Claim or any action or proceeding brought thereon,
except to the extent such Costs or Claims arise out of or are
caused by or attributable to an act or omission of the Sublandlord
or those for whom it is at law responsible;
(e) notwithstanding subsection (a) above:
(i) the Sublandlord shall, at its expense, provide all
maintenance services (except for janitorial services which
shall be provided and paid for by the Subtenant) to the
Sublet Premises and shall be responsible, at its sole cost
and expense, to repair the roof, structural components,
Leasehold Improvements, equipment, heating, cooling,
ventilating, air-conditioning, plumbing and other electrical
and mechanical installations of and serving the Sublet
Premises, in accordance with sections 7.1 and 7.8 of the
Head Lease;
(ii) the Subtenant shall pay any costs incurred by the
Sublandlord as a result of the Subtenant operating the
Sublet Premises beyond normal business hours (i.e., 8am to
6pm) or operating the Sublet Premises other than as set out
in section 14 below;
(iii) the Sublandlord shall reimburse the Head Landlord for any
and all costs incurred by the Head Landlord in completing
any Leasehold Improvements, work or repairs requested by the
Subtenant whether such charges are passed on to the
Sublandlord by the Head Landlord or not;
(iv) for the initial Subterm, the Subtenant shall not be
obligated, as required under section 2.5 of the Head Lease
to remove any Leasehold Improvements, trade fixtures,
furniture and equipment or make good, at its expense, any
damage caused by removal of its Leasehold Improvements,
trade fixtures, furniture and equipment; and
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(v) the Subtenant shall not be obligated, as required under
section 11.5 of the Head Lease to, at its expense, cause an
environmental engineering firm or environmental consultant
to conduct a Phase II Environmental Assessment of the Sublet
Premises, unless the Subtenant brings onto the Complex any
materials or substances of a hazardous nature.
(f) to program and maintain, at its sole cost, certain segments of the
Intrusion Detection/Access Control System to be designated by the
Sublandlord as such relate to the Sublet Premises; and
(g) that it has dealt with no broker, finder, agent or other person in
connection with the Sublease other than The Staubach Ontario Inc.
(the "Subtenant Brokers"), and it agrees to indemnify and hold the
Sublandlord harmless from and against any claims or causes of
action for a commission or other form of compensation arising from
this Sublease, whether advanced by the Subtenant Brokers or any
other person or entity. The provisions of this paragraph shall
survive the termination of the Head Lease, this Sublease and any
renewal or extension of either or both of them.
12. Subtenant's Breach
If the Subtenant fails to perform any of its obligations herein, the Sublandlord
shall have all of the remedies against the Subtenant which the Head Landlord has
under the Head Lease for a breach thereof.
13. Sublandlord's Covenants
Subject to the due performance by the Subtenant of its obligations herein, the
Sublandlord covenants and agrees with the Subtenant:
(a) for quiet enjoyment of the Sublet Premises, and the Sublandlord
represents and warrants to the Subtenant (and acknowledges that
the Subtenant, in entering into this Sublease, is relying
thereon), that the Head Lease is in full force and effect and is
unamended and the Sublandlord has fulfilled all of its obligations
to date under the Head Lease and is not in default thereunder;
(b) to enforce against the Head Landlord for the benefit of the
Subtenant, its permitted successors and assigns and other lawful
occupants of the Sublet Premises the covenants and obligations of
the Head Landlord under the Head Lease with the intent that the
benefit of such covenants and obligations shall extend to the
Sublet Premises and be enjoyed by the Subtenant, its permitted
successors and assigns and other lawful occupants;
-8-
(c) to observe and perform all of the obligations of the Sublandlord
under this Sublease;
(d) to pay all Rent and other amounts payable under the Head Lease and
to duly observe and perform all of the obligations of the Tenant
under the Head Lease except to the extent such obligations are to
be observed and performed by the Subtenant under this Sublease;
(e) to immediately notify the Subtenant in writing of any default in
the payment of Rent by the Sublandlord to the Head Landlord or any
other default of the Sublandlord under the Head Lease which is not
or which cannot be remedied in accordance with the terms of the
Head Lease and which default, may or does result in the Head
Landlord terminating the Head Lease;
(f) Contemporaneously with the delivery of the Head Landlord's consent
to this Sublease by the Head Landlord, the Sublandlord agrees to
post an irrevocable standby demand letter of credit from a
Canadian chartered bank in favour of the Subtenant in the amount
of CDN$250,000 in the form attached as Schedule C, (the "Subtenant
Letter of Credit") for the whole of the Subterm. The Subtenant
Letter of Credit may be for a term of not less than one (1) year
and shall provide for successive automatic one (1) year
extensions. If the Subtenant receives notice from the issuing bank
or otherwise becomes aware that the Subtenant Letter of Credit
will not be extended in accordance with its terms, the Subtenant
shall be entitled to immediately draw down the full amount of the
Subtenant Letter of Credit and hold and apply the amount so drawn
as provided below in substitution for the Subtenant Letter of
Credit, and the Sublandlord will not be entitled to any interest
on the amount so held by the Subtenant. The Subtenant may only
draw down the Subtenant Letter of Credit if: (i) the Tenant
defaults in its payment of Rent under the Head Lease and does not
remedy such default in accordance with the terms of the Head Lease
and which default results in the Head Landlord terminating the
Head Lease; (ii) the Head Lease is terminated due to the default
or insolvency of the Sublandlord or for any other reason except
condemnation, fire or other casualty; or (iii) the Sublandlord
notifies the Subtenant that it requires the Sublet Premises at the
end of the Subterm for the purpose of carrying on its business,
pursuant to section 5(c) above. Upon receiving from the Landlord
or Tenant written notice of an event set out in (i) or (ii) above,
the Subtenant may immediately draw down the entire amount of the
Subtenant Letter of Credit and may retain the proceeds thereof for
its sole benefit as compensation for the estimated liquidated
damages and costs (and not as a penalty) which may be suffered or
incurred by the Subtenant due to the termination of the Head
Lease. Upon receiving from the Sublandlord written notice as set
out in (iii) above, then, not later than thirty (30) days prior to
the expiry of the Subterm, the Sublandlord will either make a cash
payment to the Subtenant in the amount of $250,000, or if
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it shall fail to do so, the Subtenant may immediately draw down
the entire amount of the Subtenant Letter of Credit, and it may
retain the cash payment or the proceeds of the Subtenant Letter of
Credit for its sole benefit as agreed compensation for the
estimated additional costs which the Subtenant may incur to lease
premises at another location, relocate its business, and for the
disruption of its business and consequent loss of profit, whether
or not any or all of such additional costs or loss are actually
suffered or incurred. For greater certainty, the Sublandlord
agrees that the Subtenant Letter of Credit and the Subtenant's
rights under this paragraph will not be released, discharged or
affected in any way by the bankruptcy, receivership or insolvency
of the Sublandlord, by a disclaimer of the Head Lease or this
Sublease by any trustee in bankruptcy, or by the Sublandlord
ceasing to exist (whether by winding up, forfeiture, cancellation
or surrender of its charter, merger or any other circumstances);
(g) to permit the use by the Subtenant of certain segments of the
Intrusion Detection/Access Control System to be designated by the
Sublandlord as such relate to the Sublet Premises, at no cost to
the Sublandlord. However, the Sublandlord makes no representations
or warranties regarding the fitness of such system for use by the
Subtenant or the ongoing performance of such system for the use of
the Subtenant;
(h) to permit the use by the Subtenant of the cafeteria in the
Building under the same terms and conditions as the Sublandlord
for so long as the Sublandlord shall occupy the Building;
(i) to permit the use by the Subtenant of the fitness centre (i.e.,
Zarfit) under the same terms and conditions as offered to
employees of the Sublandlord;
(j) to provide fifteen tons of cooling to the Laboratory Space;
(k) to indemnify and save harmless the Subtenant against and from any
and all expenses, costs, damages, suits, actions or liabilities
("Costs") arising out of the failure of the Sublandlord to perform
any of its obligations hereunder and from all claims and demands
of every kind and nature ("Claims") made by any person or persons
to or against the Subtenant for all and every manner of Costs
incurred by or injury or damage to such person or persons or his,
her or their property, if such Claims arise out of any act or
omission of the Sublandlord or any other person authorized by the
Sublandlord and from all Costs incurred in and about any such
Claim or any action or proceeding brought thereon, except to the
extent such Costs or Claims arise out of or are caused by or
attributable to an act or omission of the Subtenant or those for
whom it is at law responsible;
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(l) that it has dealt with no broker, finder, agent or other person in
connection with the Sublease other than Colliers Macaulay Nicolls
(Ontario) Inc. (the "Sublandlord Brokers"), and it agrees to
indemnify and hold the Subtenant and Head Landlord harmless from
and against any claims or causes of action for a commission or
other form of compensation arising from this Sublease, whether
advanced by the Sublandlord Brokers or any other person or entity.
The provisions of this paragraph shall survive the termination of
the Head Lease, this Sublease and any renewal or extension of
either or both of them.
14. Use and Access
Notwithstanding the definitions of "Permitted Use" and "Business" contained in
the Head Lease, the Head Landlord and the Sublandlord agree that the Subtenant
shall be permitted to use the Sublet Premises for the purposes of general
business offices, which may include without limitation software sales (it being
agreed and understood, however, that the Sublet Premises may not be used for
commercial sales to the general public), marketing and development, and a
software development computer laboratory in the Laboratory Space. The Sublet
Premises may be accessed by the Subtenant and its directors, officers, employees
and invitees on a 24 hour per day, 7 days per week basis.
15. Parking
The Subtenant shall have the right, free of charge, to use 3.5 parking spaces
located at the Complex per 1,000 square feet of Sublet Premises.
16. Insurance
The Subtenant shall take out and maintain throughout the Subterm insurance with
respect to the Sublet Premises upon the terms required of the Sublandlord in the
Head Lease and both the Head Landlord and the Sublandlord shall be shown as
additional insureds on all such policies. In addition to the foregoing
obligations, the Subtenant shall obtain liability insurance in an amount
satisfactory to the Sublandlord, acting reasonably, to cover any possible claims
arising from the use of the Sublandlord's cafeteria or fitness centre (i.e.,
Zarfit).
17. Subtenant's Assigning, Subletting, Etc.
The Subtenant agrees that with respect to any assigning or subletting by it, the
provisions of the Head Lease apply with the following amendments thereto:
(a) each reference to the Landlord, the Tenant, the Lease and the
Leased Premises shall become, respectively, the Sublandlord, the
Subtenant, the Sublease and the Sublet Premises; and
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(b) the Sublandlord shall have the additional right to withhold and/or
delay its consent if it has not received the consent of the Head
Landlord.
18. Other Terms of Head Lease Incorporated
Subject to the provisions of this Sublease, the specific sections of the Head
Lease which are incorporated elsewhere in this Sublease and subject to the
exceptions to subsection 112(a), all of the terms of the Head Lease are also
incorporated, mutatis mutandis, into and apply to this Sublease with each
reference to the Landlord in the Head Lease being deemed to include both the
Head Landlord and the Sublandlord and with each reference therein to the Tenant
being deemed to mean the Subtenant. If any term of this Sublease is inconsistent
with any term of the Head Lease, the term of this Sublease shall prevail.
19. Exercise of Rights
Subject to the provisions of this Sublease, the exercise by the Head Landlord of
any of its rights contained in the Head Lease shall, upon written notice by the
Head Landlord to the Subtenant of such exercise, be binding upon the Subtenant.
Notwithstanding the exercise by the Head Landlord of any of its rights contained
in the Head Lease, the Sublandlord may also exercise its rights hereunder in the
same manner as the Head Landlord.
20. Termination of Head Lease
Subject to the provisions of this Sublease, the Subtenant acknowledges and
agrees that it has no greater interest in the Sublet Premises than the
Sublandlord under the Head Lease.
21. Notices and Consents, Etc.
Except as otherwise specifically provided herein, any notice or consent
including any invoice, statement or request or other communication (a "Notice")
herein required or permitted to be given by either party to the other shall be
in writing and shall be delivered by hand or sent by double registered mail
(except during a postal disruption or threatened postal disruption) or by
facsimile to the applicable address (and facsimile number, if applicable) set
forth below:
(a) in the case of the Sublandlord, to:
Zarlink Semiconductor Inc.
400 March Road
Ottawa, Ontario K2K 3H4
Attention: General Counsel
Facsimile: (613) 592-1010
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with a copy to:
Zarlink Semiconductor Inc.
400 March Road
Ottawa, Ontario K2K 3H4
Attention: Mr. Kevin Jones, Manager, Facilities, Engineering and
Real Estate
Facsimile: (613) 592-1010
(b) in the case of the Subtenant:
MetaSolv, Inc.
5560 Tennyson Parkway
Plano, Texas 75024
Attention: General Counsel, with a copy to Purchasing Department
Facsimile: (972) 403-8989
Any Notice delivered by hand shall be deemed to have been validly and
effectively given on the day of such delivery if delivered before 4:00 p.m. on a
Business Day or on the next Business Day if delivered on a non-Business Day or
after 4:00 p.m. on the previous Business Day. Any Notice sent by double
registered mail (except during a postal disruption or threatened postal
disruption) shall be deemed to have been validly and effectively given on the
third Business Day following the date of mailing. Any Notice sent by facsimile
shall be deemed to have been validly and effectively given on the day it was
sent if sent before 4:00 p.m. on a Business Day or on the next Business Day if
sent on a non-Business Day or after 4:00 p.m. on the previous Business Day.
Any party may from time to time by Notice to the other parties change its
address for service hereunder.
22. Successors and Assigns
Except as otherwise provided herein, all of the rights and obligations of a
party hereto, including any rights of a personal nature, enure to the benefit of
and are binding upon the successors and assigns of that party.
23. Further Assurances
Each of the parties hereto agrees to do, make and execute all such further
documents, agreements, assurances, acts, matters and things and take such
further action as may be reasonably required by any other party hereto in order
to more effectively carry out the true intent of this Sublease. This Sublease
(except paragraph 6) shall not be effective until the Head
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Landlord has delivered its consent to this Sublease. Paragraph 6 shall be
effective as between the Sublandlord and the Subtenant when this Sublease has
been executed by them.
24. Governing Law
This Agreement is a contract made under and shall be governed by and construed
in accordance with the law of the Province of Ontario and the federal laws of
Canada applicable in the Province of Ontario.
The remainder of this page intentionally left blank. Signature page follows.
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IN WITNESS OF WHICH the parties have duly executed this Sublease.
ZARLINK SEMICONDUCTOR INC.
By: /s/ Tim Saunders
----------------------------------
Name: Tim Saunders
Title: V.P. & Corporate Controller
By: /s/ Dan MacIntyre
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Name: Dan MacIntyre
Title: Sr.V.P.
I/We have authority to bind the corporation.
METASOLV SOFTWARE CANADA, INC.
By: /s/ Jonathan K. Hustis
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Name: Jonathan K. Hustis
Title: Secretary
By:
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Name:
Title:
I/We have authority to bind the corporation.
SCHEDULE A
HEAD LEASE
SCHEDULE B
FLOOR PLAN SHOWING SUBLET PREMISES SHADED
[FLORR PLAN]
SCHEDULE C
FORM OF SUBTENANT LETTER OF CREDIT
LETTER OF CREDIT
Letter of Credit Reference No. ______________
Beneficiary: MetaSolv Software Canada Inc.
c/o MetaSolv, Inc.
5560 Tennyson Parkway
Plano, Texas 75024
Attention: General Counsel
Applicant: Zarlink Semiconductor Inc.
Amount: CAD $250,000.00 (Two Hundred and Fifty Thousand Canadian Dollars)
Date of Expiry: _______ (at ____ p.m. at the Bank's counters at the address
noted below)
1. Pursuant to the request of Zarlink Semiconductor Inc. (the "Applicant"),
_________________________________ (the "Bank") through its branch or office
located at the address noted below hereby establishes an irrevocable
standby letter of credit in favour of MetaSolv Software Canada Inc. and its
assigns (collectively, the "Beneficiary") for the maximum amount of CAD
$250,000.00 (Two Hundred and Fifty Thousand Canadian Dollars).
2. This letter of credit is available for payment against receipt by the Bank
at the above address of the following documents:
(a) the Beneficiary's certificate signed by an officer or director of the
Beneficiary, referencing this letter of credit number and date and the
amount claimed, and stating that the Beneficiary is entitled to
payment of the amount claimed in accordance with the terms of a
Sublease made as of the 4th day of June, 2002 made between the
Applicant and the Beneficiary (the "Sublease"); and
(b) this original letter of credit for the Bank's endorsement of any
payment thereon.
3. Partial drawings are not permitted.
4. This letter of credit will not be released, discharged or affected by the
bankruptcy, receivership or insolvency of the Applicant, by any disclaimer
of the Sublease by any trustee in bankruptcy or by the Applicant ceasing to
exist (whether by winding-up, forfeiture, cancellation or surrender of its
charter, merger or any other circumstances).
5. The Bank agrees that a demand presented to the Bank in compliance with the
terms of this letter of credit will be duly honoured without enquiring
whether the Beneficiary has the right as between itself and the Applicant
to make such demand and without recognizing any claim of the Applicant.
6. It is a condition of this letter of credit that it will be deemed to be
automatically extended, without amendment, for one (1) year from the
present or any future expiration date hereof, unless at least thirty (30)
days prior to any such date the Bank notifies the Beneficiary in writing by
registered mail or courier that the Bank elects not to consider this letter
of credit extended for any such additional period.
-2-
7. This letter of credit is subject to the "Uniform Customs and Practice for
Documentary Credits (1993 Revision) International Chamber of Commerce,
Publication No. 500" and engages the Bank in accordance with the terms
thereof.
_____________________________
(name of the Bank)
_______________________________ _____________________________
Counter Signature Authorized Signature
Address of Bank:
_____________________________
_____________________________