Exhibit 10.17
AGREEMENT OF SUBLEASE
THIS AGREEMENT OF SUBLEASE is made as of the ___ day of April
1998, by and between REED ELSEVIER INC. a Massachusetts corporation
(hereinafter referred to as "Sublandlord") and, DIAMOND MULTIMEDIA
SYSTEMS, INC. a Delaware Corporation (hereinafter referred to as
"Subtenant").
W I T N E S S E T H:
WHEREAS, Sublandlord is presently the tenant of the premises
(hereinafter referred to as "Premises") in the building (hereinafter
referred to as "Building") located at 2885-2895 Zanker Road, San Jose
California pursuant to that certain Lease dated August 18, 1997 by and
between Silicon Valley Properties, L.L.C. (hereinafter referred to as
"Overlandlord") and Sublandlord (said lease is hereinafter called the
"Primary Lease"). A copy of the Primary Lease with certain provisions
excluded is attached hereto as Exhibit "A" and is by this reference
incorporated herein; and
WHEREAS, Sublandlord is desirous of subletting the entire
Premises (hereinafter referred to as "Sub-Premises") to Subtenant and
Subtenant is desirous of subletting same from Sublandlord.
WHEREAS, Landlord would not enter into this Sublease without
the guaranty of Guarantor.
NOW, THEREFORE, for and in consideration of TEN AND NO/100
($10.00) DOLLARS and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, and intending to be
legally bound, the parties hereto do hereby agree as follows:
1. Sub-Premises. Sublandlord hereby sublets the
Sub-Premises to Subtenant and Subtenant hereby sublets the Sub-Premises
from Sublandlord to be occupied for the uses permitted in the Primary
Lease and no other use.
2. Term. The term of this Sublease (hereinafter referred
to as the "Term") shall commence on the earlier to occur of: the
completion of improvements by Subtenant to the Sub-Premises necessary for
Subtenant's use and occupancy of same; and (ii) July 1, 1998 (said date
is hereinafter referred to as the "Commencement Date")and shall continue
up to and including 11:59 p.m. on the 31st day of January 2003, unless
sooner terminated due to the provisions hereof.
3. Rental.
A. Subtenant hereby agrees to pay to Sublandlord
the sum of TWO MILLION EIGHT HUNDRED TWENTY-FOUR THOUSAND NINE HUNDRED
SIXTY-FIVE AND 63/100 ($2,824,965.63) DOLLARS in monthly installments in
advance, on the first day of the term hereof and on the first day of each
month thereafter during the term of this Sublease (hereinafter referred
to as "Base Rent") in the following amounts:
Period
Monthly Base
Rent
Commencement Date - June 30, 1999
$46,903.00
July 1, 1999 - June 30, 2000
$49,248.15
July 1, 2000 - June 30, 2001
$51,710.56
July 1, 2001 - June 30, 2002
$54,296.09
July 1, 2002 - January 31, 2003
$57,010.29
B. Subtenant shall pay to Sublandlord as additional
rent, at least three (3) business days prior to the due date therefor
under the Primary Lease, the Tenant's Share of Common Operating Expenses,
as defined in the Primary Lease, payable with respect to the Term.
Sublandlord may, in the event it is so required or requested under the
Primary Lease by Overlandlord, require Subtenant to pay the aforesaid
sums due pursuant to the Primary Lease in equal monthly installments in
advance based upon Sublandlord's reasonable estimation of the amounts
that will be due at the end of the year, quarter or other period that
same is due under the Primary Lease. Once the final amount is
determined, Subtenant will pay Sublandlord any additional amount that may
be due within ten (10) days after demand thereof or in the case of
overpayment Sublandlord shall, as it receives from the Overlandlord,
refund the overpayment or credit same to the account of Subtenant.
C. Subtenant shall pay to Sublandlord as additional
rent, within ten (10) days of Sublandlord's written demand therefor,
Tenant's Pro Rata Share of any other sums due and payable by Sublandlord
under the Primary lease, except Monthly Base Rent and except for sums
payable pursuant to Section 14.1 of the Primary Lease.
D. All rental and other payments to be made by
Subtenant to Sublandlord shall be made without setoff, deduction or
reductions of any kind in any amount for any reason whatsoever. All
rental payments shall be made to Sublandlord at 275 Washington Street,
Newton, Massachusetts 02158 or such other place as Sublandlord may from
time to time designate.
4. Representations.
A. Sublandlord hereby warrants and represents that
the Primary Lease is presently in full force and effect and without
default on the part of the Sublandlord upon execution hereof and will so
be at the commencement of the Term, and that no condition is now existing
which would constitute a default under the Primary Lease with the giving
of notice or lapse of time or both.
B. Sublandlord warrants and represents that,
provided Subtenant is not in default hereunder, that it will continue to
observe and perform all its obligations under the Primary Lease not
assumed by Subtenant hereunder in order to prevent any default thereunder
or breach thereof during the term of this Sublease.
C. Sublandlord warrants and represents that
Exhibit "A" attached hereto is a true, correct and complete copy of the
Primary Lease and all amendments thereto.
5. Primary Lease.
A. All the obligations contained in the Primary Lease
imposed upon Sublandlord (as tenant therein) except the payment of
Monthly Base Rent are hereby imposed upon Subtenant with respect to the
Sub-Premises, provided that any duty or obligation therein required to be
performed for the benefit of Overlandlord or right therein granted for
the benefit of Overlandlord shall be deemed to be for the benefit of
Overlandlord and Sublandlord except as specifically set forth to the
contrary herein. Subtenant is hereby granted the right to receive all of
the services to be provided to Sublandlord under the Primary Lease.
Subtenant covenants and agrees to fully and faithfully perform the terms
and conditions of the Primary Lease and the Sublease on its part to be
performed. Subtenant shall not do or cause to be done or suffer or
permit any act to be done which would or might cause the Primary Lease,
or the rights of Sublandlord, as lessee, under the Primary Lease, to be
endangered, cancelled, terminated, forfeited or surrendered, or which
would or might cause Sublandlord to be in default thereunder or liable
for any damage, claim or penalty. Subtenant agrees, as an express
inducement for Sublandlord's executing this Sublease, that if there is
any conflict between the provisions of this Sublease and the provisions
of the Primary Lease which would permit Subtenant to do or cause to be
done or suffer or permit any act or thing to be done which is prohibited
by the Primary Lease, then, the provisions of the Primary Lease shall
prevail. If the Primary Lease terminates or is terminated for any reason
whatsoever, then this Sublease shall automatically terminate
simultaneously therewith. If Subtenant is not in default under the terms
and conditions hereof, any such termination shall be without liability
between Sublandlord and Subtenant, except such liability theretofore
accruing; however, if Subtenant is in default, the default provisions
hereof shall control as to Subtenant's liability.
B. Sublandlord shall have no duty to perform any
obligations of the Overlandlord and shall under no circumstances be
responsible for or liable to Subtenant for any default, failure or delay
on the part of the Overlandlord in the performance or observance of any
obligations or covenants under the Primary Lease, nor shall such default
of the Overlandlord affect this Sublease or waive or defer the
performance of any of Subtenant's obligations hereunder except as
expressly set forth in the Primary Lease.
C. All services to the Sub-Premises shall be furnished
by Overlandlord or the appropriate utility company pursuant to the
Primary Lease and Sublandlord shall in no event be obligated to furnish
any such services or utilities nor shall Sublandlord be liable for any
failure or deficiency in any such services or utility.
D. This Sublease and all the rights of the Subtenant
hereunder are subject and subordinate to the Primary Lease. Subtenant
covenants and agrees to observe and perform all of the covenants and
obligations of the Sublandlord as tenant under the Primary Lease, but
only the same related to the Sub-Premises. The failure of Subtenant to
observe and perform the covenants and obligations of the Primary Lease
shall be a default hereunder.
E. Provided Subtenant is not in default hereunder,
Sublandlord agrees not to do or cause to be done or suffer or permit any
act to be done which would or might cause the Primary Lease, or the
rights of Sublandlord, as lessee, under the Primary Lease, to be
endangered, cancelled, terminated, forfeited or surrendered, or which
would or might cause Sublandlord to be in default thereunder.
Sublandlord agrees to promptly deliver copies of notices, received by it
under the Primary Lease which allege a default by Sublandlord thereunder
and which are not cured by Sublandlord. Subtenant shall obtain all
necessary consents from the Overlandlord required under the Primary
Lease. Should the consent of the Overlandlord be required prior to the
taking or failure to take of any action, Subtenant shall, in addition to
the consent of the Overlandlord, obtain the consent of Sublandlord which
consent shall, provided the consent of the Overlandlord is granted, not
be unreasonably withheld.
6. Default.
A. If Subtenant defaults in the payment of any sums
payable hereunder when due, or if Subtenant defaults in the performance
of any of the other obligations imposed upon it hereunder and fails to
cure such default within three (3) days after written notice thereof to
Subtenant, then, in either event, Sublandlord may, at its option,
terminate this Sublease in which event neither the Subtenant nor any
person claiming through or under the Subtenant by virtue of any statute
or an order of any court shall be entitled to possession or to remain in
possession of the Sub-Premises but shall forthwith quit and surrender the
Sub-Premises.
B. Notwithstanding anything to the contrary contained
herein, Sublandlord may terminate this Sublease, without having given
prior notice of default hereunder, if the act or omission of Subtenant
would cause a default under the Primary Lease.
C. In the event that the Subtenant shall default under
this Sublease and such default shall entitle the Sublandlord to
possession of the Sub-Premises as hereinabove provided, the Sublandlord
shall have the right to enter the Sub-Premises by any legal means, remove
the Subtenant's property and effects, take and hold possession thereof,
without terminating this Sublease or releasing the Subtenant in whole or
in part, from Subtenant's obligations to pay rent and additional rent and
all its other obligations hereunder for the full term, relet the Sub-
Premises or any part thereof, either in the name or for the account of
the Subtenant, for such rent and for such term or terms as the
Sublandlord may see fit, which term may, at Sublandlord's option, extend
beyond the balance of the term of this Sublease. The Sublandlord shall
not be required to accept any tenant offered by the Subtenant, or to
observe any instructions given by the Subtenant about such reletting. In
any such case, the Sublandlord may make such repairs, alterations and
additions in and to the Sub-Premises and redecorate the same as it sees
fit. The Subtenant shall pay the Sublandlord any deficiency between the
rent hereby reserved and covenanted to be paid and the net amount of the
rents collected on such reletting, for the balance of the term of this
Sublease, as well as any reasonable expenses incurred by the Sublandlord
in such reletting including, but not limited to broker's fees, attorney's
fees, the expense of repairing, altering and redecorating the Sub-
Premises and otherwise preparing the same for re-rental. All such
expenses shall be paid by the Subtenant as additional rent upon demand by
the Sublandlord. Any deficiency in rental shall be paid in monthly
installments, upon statements rendered by the Sublandlord to the
Subtenant, provided that the Sublandlord shall have the right to
immediately declare the entire rental for the balance of the term due.
For the purpose of determining the deficiency in rent, whether payable in
installments or the entire rental for the balance of the term, the rent
reserved shall be deemed to be the fixed rent hereunder and all
additional rent to be paid by Tenant as herein provided for, as reduced
by any rent collected by reletting. Any suit brought to collect the
amount of the deficiency for any one or more months shall not preclude
any subsequent suit to collect the deficiency for any subsequent months.
D. If the Subtenant is in default of its obligations
under this Sublease, Sublandlord may cure the default and Subtenant shall
forthwith pay to Sublandlord, as additional rent, a sum of money equal to
all amounts expended by Sublandlord in curing such default. If suit is
brought by Sublandlord on account of any default of Subtenant and if such
default is established, Subtenant shall pay to Sublandlord all expenses
of such suit including without limitation reasonable attorney's fees.
Any payment by Subtenant of a sum of money less than the entire amount
due Sublandlord at the time of such payment shall be applied to the
obligations of Subtenant then furthest in arrears. No endorsement or
statement on any check or accompanying any payment shall be deemed an
accord and satisfaction and any payment accepted by Sublandlord shall be
without prejudice to Sublandlord's right to obtain the balance due or
pursue any other remedy available to Sublandlord both in law and in
equity.
E. If Subtenant defaults in any payment of rent or
additional rent, or any other payments to be made by Subtenant hereunder,
interest shall accrue thereon from the due date until paid at a
fluctuating rate equal to four percent (4%) over and above the Prime Rate
(as hereinafter defined). The term "Prime Rate" when used herein shall
mean the fluctuating annual rate of interest published by the Bank of
America, N.T.S.A. from time to time during the term of this Agreement.
Any change in such rate shall take effect on the date of such change.
F. If, at any time during the term of this Sublease,
there shall be filed by or against the Subtenant in any court pursuant to
any statute either of the United States or any state, a petition in
bankruptcy or insolvency or for the reorganization or for the appointment
of a receiver, trustee or liquidator of all or any portion of the
Subtenant's property or if the Subtenant makes an assignment for the
benefit of creditors, or if the Subtenant admits in writing its inability
to pay its debts, and if, within thirty (30) days thereafter, the
Subtenant fails to secure a discharge thereof, this Sublease, at the
option of the Sublandlord may be cancelled and terminated, in which event
neither the Subtenant nor any person claiming through or under the
Subtenant by virtue of any statute or an order of any court shall be
entitled to possession or to remain in possession of the Sub-Premises but
shall forthwith quit and surrender the Sub-Premises.
G. In addition to any and all remedies set forth
herein, Sublandlord shall have all remedies available at law or in equity
and any and all remedies shall be cumulative and nonexclusive.
7. No Representations. Sublandlord makes no
representations with respect to this transaction or the Sub-Premises,
except as specifically set forth herein, and Subtenant expressly
acknowledges that no such representations have been made.
8. Waiver and Indemnity.
A. To the extent not expressly prohibited by law
and except for those obligations which Sublandlord has expressly
undertaken pursuant to this Sublease, Subtenant hereby releases and
waives all claims against Sublandlord, its agents, employees and
servants, for injury or damage to person, property or business sustained
in or about the Sub-Premises by Subtenant, its agents, employees or
servants, other than by reason of the negligence or wilful misconduct of
Sublandlord or its respective agents or employees. Subtenant hereby
agrees to defend, indemnify and hold Sublandlord harmless from and
against any and all expense, loss, claims or liability including
reasonable attorneys' fees arising out of or in connection with any act
or omission of Subtenant, its agents, contractors or employees including,
but not limited to, claims as a result of injury to or death of any
person, property damage, claims of employees of Subtenant or arising out
of or in connection with Subtenant's use and possession of the
Sub-Premises, or its breach of this Sublease (including the terms of the
Primary Lease).
B. Sublandlord hereby agrees, provided Subtenant is
not in default hereunder, to defend, indemnify and hold Subtenant
harmless from and against any and all expense, loss, claims or liability,
including reasonable attorney's fees due to Sublandlord's breach of its
obligations hereunder or under the Primary Lease.
9. Notices. All notices, demands, submissions and
consents required hereunder shall be in writing and shall be deemed given
when received if sent by expedited courier services, personal delivery or
by certified mail, return receipt requested, postage prepaid, (a) to
Subtenant, at 2880 Junction Avenue, San Jose California 95134, Attention:
Michael Mead, or (b) to Sublandlord, at 275 Washington Street, Newton,
Massachusetts 02158-1630, with copies thereof to Reed Elsevier Inc.,
Attention: Henry Z. Horbaczewski, 275 Washington Street, Newton,
Massachusetts 02158-1630, and to Benjamin J. Randall, Katz Randall &
Weinberg, 333 West Wacker Drive, Suite 1800, Chicago, Illinois 60606, or
such other address as Subtenant may designate by notice to Subtenant.
10. Insurance. Subtenant shall carry insurance during the
entire Term hereof insuring Subtenant, and insuring, as additional named
insureds, Sublandlord, Overlandlord and their respective agents,
partners, beneficiaries and employees, as their interests may appear,
with terms, coverages and in companies as required under the Primary
Lease. Subtenant shall, prior to the commencement of the Term, and
during the Term, thirty (30) days prior to the expiration of the policies
of insurance, furnish to Sublandlord certificates evidencing such
coverage, which certificates shall state that such insurance coverage may
not be changed or cancelled without at least thirty (30) days' prior
written notice to Sublandlord and Subtenant.
11. Access. Subtenant shall afford Sublandlord access to
the Sub-Premises on the same terms as Overlandlord is entitled to access
to the Premises demised under the Primary Lease.
12. Broker. Each party represents and warrants to the
other party that it dealt with no broker or other person entitled to
claim fees for such services in connection with the negotiation,
execution and delivery of this Sublease, other than Colliers Parrish
International, Inc. and The Grubb & Ellis Company (whose commissions, if
any, shall be paid by Sublandlord). Each party agrees to defend,
indemnify and hold the other party harmless from and against any and all
claims for finders' fees or brokerage or other commission which may at
any time be asserted against the indemnified party founded upon the claim
that the substance of the aforesaid representation of the indemnifying
party is untrue, together with any and all losses, damages, costs and
expenses (including reasonable attorneys' fees) relating to such claims
or arising therefrom or incurred by the indemnified party in connection
with the enforcement of this indemnification provision.
13. Waiver. One or more waivers of any covenant or
condition by Sublandlord shall not be construed as a waiver of a
subsequent breach of the same or any other covenant or condition, and the
consent or approval by Sublandlord to or of any act by Subtenant
requiring Sublandlord's consent or approval shall not be construed to
waive or render unnecessary Sublandlord's consent or approval to or of
any subsequent similar act by Subtenant.
14. Effect. This Agreement shall be binding upon the
parties hereto, their heirs, executors, legal representatives, successors
and permitted assigns, and may not be altered, amended, terminated or
modified except by written instrument executed by each of the parties
hereto.
15. Headings. The headings for the various Paragraphs
herein are for reference only and are not part of this Agreement.
16. Separability of Provisions. If any term or provision
of this Agreement or any application thereof shall be invalid or
unenforceable, the remainder of this Agreement and any other application
of such term or provision shall not be affected thereby. All words used
shall be understood and construed of such gender or number as
circumstances may require.
17. Payments upon Execution.
A. As additional security for the faithful and
prompt performance of its obligation hereunder, Subtenant has
concurrently with the execution of this Sublease paid to the Sublandlord
the sum of FORTY-SIX THOUSAND NINE HUNDRED THREE AND NO/100 ($46,903.00)
DOLLARS. Said security deposit need not be segregated and may be applied
by Sublandlord for the purpose of curing any default or defaults of
Subtenant hereunder, in which event Subtenant shall replenish said
deposit in full by promptly paying to Sublandlord on demand the amount so
applied. Sublandlord shall not pay any interest on said deposit, except
as may be required by law. If Subtenant has not defaulted hereunder and
Sublandlord has not applied said deposit to cure a default or Sublandlord
has applied said deposit to cure a default and Subtenant has replenished
the same, then said deposit, or such remaining portion thereof, shall be
paid to Subtenant within thirty (30) days after the termination of this
Sublease. Said deposit shall not be deemed an advance payment of rent or
measure of Sublandlord's damages for any default hereunder by Subtenant.
B. Notwithstanding anything to the contrary herein
set forth, the Monthly Base Rent payable for the first month of the Term
shall be due and paid to Sublandlord concurrently upon the execution
thereof by Subtenant.
18. Physical Improvements. Subtenant acknowledges that it
has inspected the Sub-Premises and agrees to accept possession of the
Sub-Premises in their "as is" condition, it being understood and agreed
that Landlord shall have no obligation to construct tenant improvements
in the Sub-Premises or alter or improve in any way the present condition
of the Sub-Premises. Subtenant further acknowledges that no
representations as to the repair of the Sub-Premises, nor promises to
alter, remodel, or improve the Sub-Premises, have been made by
Sublandlord. Notwithstanding the forgoing, the Subtenant acknowledges
that the Sublandlord has expended not in excess of THIRTY-SIX THOUSAND
AND NO/100 ($36,000.00) DOLLARS of the Improvement Allowance as defined
in the Primary Lease and that all amounts of the Improvement Allowance in
excess of THIRTY-SIX THOUSAND AND NO/100 ($36,000.00) DOLLARS may be
expended by Subtenant to improve the Sub-Premises in accordance with the
provisions of the Primary Lease.
19. Damages from Certain Causes. Sublandlord shall not be
liable or responsible to Subtenant for any loss or damage to any property
or person occasioned by theft, fire, act of God, public enemy,
injunction, riot, strike, insurrection, war, court order, requisition or
order of governmental body or authority, or for any damage or
inconvenience which may arise through repair or alteration of any part of
the Sub-Premises by Overlandlord pursuant to the terms of the Primary
Lease, or failure to make any such repairs.
20. Sublet and Assignment. Subtenant shall not assign or
transfer this Sublease, nor sublet the Sub-Premises or any part thereof
without the prior consent of Sublandlord and the prior consent of
Overlandlord (with respect to Overlandlord in the manner provided by the
Primary Lease). Sublandlord's consent to any assignment or subletting
shall not release Subtenant of liability under this Sublease or permit
any subsequent prohibited act, unless specifically provided in such
written consent. Subtenant agrees to pay to Sublandlord, on demand, all
reasonable costs incurred by Sublandlord in connection with any request
by Subtenant of Sublandlord in connection with any consent to any
assignment or subletting by Subtenant. If Sublandlord consents to any
assignment or sublease, Subtenant shall pay Sublandlord, as Additional
Rent in the case of each and every assignment or sublease, fifty (50%)
per cent of all sums, including rents, additional charges or other
consideration whatsoever payable to Subtenant (and/or Sublandlord in the
case of an assignment) by the subtenant or assignee which exceed all rent
under this Sublease accruing during the term of the sublease or
assignment in respect of the subleased or assigned space (i.e., allocated
in proportion to the space demised, as reasonably computed by Subtenant's
fixtures, leasehold improvements, equipment, furniture or furnishings or
other personal property, less, in the case of a sale thereof, the then
net unamortized or undepreciated cost thereof determined on the basis of
Subtenant's federal income tax returns), less the actual costs expended
for brokerage commissions, lease preparation and negotiation and
improvements to the Sub-Premises.
21. Enforcement of Overlandlord Obligations. Subtenant
shall have no remedy against Sublandlord for the enforcement of any of
the terms, provisions or obligations of Overlandlord under the Primary
Lease. Whenever there shall be any right to enforce any rights against
Overlandlord under the Primary Lease with respect to the Sub-Premises,
including, without limitation, a default by Overlandlord under the
Primary Lease relating to the Sub-Premises, Subtenant shall promptly
notify Sublandlord thereof in writing and Subtenant may request
Sublandlord to attempt to enforce such rights (for the purpose of this
section, Sublandlord's "attempt to enforce" shall mean and be limited
solely to the transmission of notices which are contemplated to be given
under the Primary Lease). If such request is made and Sublandlord fails
to attempt to enforce such rights within a reasonable period thereafter,
then Subtenant shall have the right in its own name, or in Sublandlord's
name, to attempt to enforce any such rights of Subtenant. Such
enforcement shall be at the sole cost and expense of Subtenant and
Subtenant shall indemnify, defend and hold harmless Sublandlord from and
against any loss, cost, damage, claim, liability or expense (including
reasonable attorneys' fees and court costs) incurred by Sublandlord as a
result of Subtenant's attempted enforcement as aforesaid of any rights of
Subtenant. Notwithstanding anything contained herein to the contrary, in
no event shall Subtenant attempt to enforce such rights so as to either:
(i) create a default by Sublandlord, as Tenant, under the Primary Lease
or (ii) cause a termination or modification of the Primary Lease.
Subtenant shall promptly inform Sublandlord, in writing, from time to
time, of all developments in connection with any such claim, action or
proceeding and Sublandlord shall have the right, but not the duty, to
participate in any such proceedings.
22. Effective Date of Sublease. This Sublease shall only
be effective upon the execution and delivery hereof by each of the
undersigned and upon the acceptance hereof by the Overlandlord under the
Primary Lease.
IN WITNESS WHEREOF, the parties have hereunto affixed their
hands and seals the day and year first above written.
SUBLANDLORD: REED ELSEVIER INC. a
Massachusetts corporation
By:
Its:
SUBTENANT: DIAMOND MULTIMEDIA SYSTEMS,
INC., a Delaware Corporation
By:
Its: