EXHIBIT 10.75
SUBLEASE
1. PARTIES. This Sublease, dated June 30, 2003, is made
between MTI Technology Corporation ("Sublessor"), and Xyratex International Inc.
("Sublessee").
2. MASTER LEASE. Sublessor is the lessee under a written
lease dated February 9, 1999, wherein BankOne ("Lessor") leased to Sublessor the
real property located in the City of Westmont, County of Dupage, State of
Illinois, described as 0000 Xxxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx ("Master
Premises"). Said lease has been amended by the following amendments: AMENDMENTS;
said lease and amendments are herein collectively referred to as the "Master
Lease" and are attached hereto as Exhibit "A."
3. PREMISES. Sublessor hereby subleases to Sublessee on
the terms and conditions set forth in this Sublease the following portion of the
Master Premises ("Premises"): 6000 Sq Ft at 0000 Xxxxxxxxxxx Xxxxx, Xxxxxxxx,
Xxxxxxxx, as shown on the attached plan that has been initialled by Sublessor
and Sublessee.
4. WARRANTY BY SUBLESSOR. Sublessor warrants and
represents to Sublessee that the Master Lease has not been amended or modified
except as expressly set forth herein, that Sublessor is not now, and as of the
commencement of the Term hereof will not be, in default or breach of any of the
provisions of the Master Lease, and that Sublessor has no knowledge of any claim
by Lessor that Sublessor is in default or breach of any of the provisions of the
Master Lease.
5. TERM, The Term of this Sublease shall commence on
July 7,. 2003 or when Lessor consents to this Sublease (if such consent is
required under the Master Lease), whichever shall last occur, and end on June
30, 2005 ("Termination Date"), unless otherwise sooner terminated in accordance
with the provisions of this Sublease. Sublessor and Sublessee are in agreeance
that this is a month-to-month lease with a 30-day termination notice provided by
Sublessee. Sublessor agrees to notify the Sublessee 90 days prior to its intent
to terminate or modify its lease agreement with the Lessor. In the event the
Term commences on a date other than the Commencement Date, Sublessor and
Sublessee shall execute a memorandum setting forth the actual date of
commencement of the Term. Possession of the Premises ("Possession") shall be
delivered to Sublessee on the commencement of the Term. If for any reason
Sublessor does not deliver Possession to Sublessee on the commencement of the
Term, Sublessor shall not be subject to any liability for such failure, the
Termination Date shall not be extended by the delay, and the validity of this
Sublease shall not be impaired, but rent shall xxxxx until delivery of
Possession. Notwithstanding the foregoing, if Sublessor has not delivered
Possession to Sublessee within thirty (30) days after the Commencement Date,
then at any time thereafter and before delivery of Possession, Sublessee may
give written notice to Sublessor of Sublessee's intention to cancel this
Sublease. Said notice shall set forth an effective date for such cancellation
which shall be at least ten (10) days after delivery of said notice to
Sublessor. If Sublessor delivers Possession to Sublessee on or before such
effective date, this Sublease shall remain in full force and effect. If
Sublessor fails to deliver Possession to Sublessee on or before such effective
date, this Sublease shall be cancelled, in which case all consideration
previously paid by Sublessee to Sublessor on account of this Sublease shall be
returned to Sublessee, this Sublease shall thereafter be of no further force or
effect, and Sublessor shall have no further liability to Sublessee on account of
such delay or cancellation. If Sublessor permits Sublessee to take Possession
prior to the commencement of the Term, such early Possession shall not advance
the Termination Date and shall be subject to the provisions of this Sublease,
including without limitation the payment of rent. Sublessee shall have the right
to terminate sublease with 30 days advanced written notice, but is obligated to
remain in space for a minimum of six months.
6. RENT.
6.1 Minimum Rent. Sublessee shall pay to Sublessor as minimum rent, without
deduction, setoff, notice, or demand, at Sublessor's address or at such other
place as Sublessor shall designate from time to time by notice to Sublessee, the
sum of four thousand Dollars ($4000) per month, in advance on the first day of
each month of the Term.
Sublessee shall pay to Sublessor upon execution of this Sublease the sum of
eight thousand Dollars ($8000) as rent for the first month's rent and one month
rent security deposit ($4000 in base rent, + one month security deposit).
Subtenant shall also pay 32.25% or approx. $2500 of the C.A.M./Operating
expenses and 50% of all energy, electrical, gas and water in addition to the
base rent on a monthly basis. If the Term begins or ends on a day other than the
first or last day of a month, the rent for the partial months shall be prorated
on a per diem basis.
7. SECURITY DEPOSIT. One Month Rent of $4000
8. USE OF PREMISES. The Premises shall be used and
occupied only for office and various related legal uses, and for no other use or
purpose.
9. ASSIGNMENT AND SUBLETTING. Sublessee shall not
assign this Sublease or further sublet all or part of the Premises without the
prior written consent of Sublessor (and the consent of Lessor, if such is
required under the terms of the Master Lease).
10. ATTORNEYS' FEES. If Sublessor or Sublessee, shall
commence an action against the other arising out of or in connection with this
Sublease, the prevailing party shall be entitled to recover its costs of suit
and reasonable attorney's fees.
11. NOTICES. All notices and demands which may or are to
be required or permitted to be given by either party on the other hereunder
shall be in writing. All notices and demands by the Sublessor to Sublessee shall
be sent by United States Mail, postage prepaid, addressed to the Sublessee at
the Premises, and to the address herein below, or to such other place as
Sublessee may from time to time designate in a notice to the Sublessor. All
notices and demands by the Sublessee to Sublessor shall be sent by United States
Mail, postage prepaid, addressed to the Sublessor at the address set forth
herein, and to such other person or place as the Sublessor may from time to time
designate in a notice to the Sublessee.
To Sublessor: MTI Technology Corporation
00000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
To Sublessee: Xyratex International Inc.
Riverside Business Center
000 Xxxxxxxxxxx Xxxxx, Xxxxx 00
Xxxx Xxxxxxxxxx, XX 00000-0000
15. CONSENT BY LESSOR. THIS SUBLEASE SHALL BE OF NO FORCE
OR EFFECT UNLESS CONSENTED TO BY LESSOR WITHIN 10 DAYS AFTER EXECUTION HEREOF,
IF SUCH CONSENT IS REQUIRED UNDER THE TERMS OF THE MASTER LEASE.
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16. COMPLIANCE. The parties hereto agree to comply with
all applicable federal, state and local laws, regulations, codes, ordinances and
administrative orders having jurisdiction over the parties, property or the
subject matter of this Agreement, including, but not limited to, the 1964 Civil
Rights Act and all amendments thereto, the Foreign Investment in Real Property
Tax Act, the Comprehensive Environmental Response Compensation and Liability
Act, and The Americans With Disabilities Act.
Sublessor: MTI TECHNOLOGY CORPORATION Sublessee: XYRATEX TNTERNATIONAL INC.
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxxx Xxxxxx
----------------------------- ------------------------------
Title: Chief Financial Officer Title: CEO.
By: _____________________________ By: ______________________________
Title: __________________________ Title: ___________________________
Date: August 4, 2003 Date: August 13, 2003
LESSOR'S CONSENT TO SUBLEASE
The undersigned ("Lessor"), Lessor under the Master Lease, hereby consents to
the foregoing Sublease without waiver of any restriction in the Master Lease
concerning further assignment or subletting. Lessor certifies that, as of the
date of Lessor's execution hereof, Sublessor is not in default or breach of any
of the provisions of the Master Lease, and that the Master Lease has not been
amended or modified except as expressly set forth in the foregoing Sublease.
Lessor: BANKONE
By: _______________________________
Title: _______________________________
Date: _______________________________
CONSULT YOUR ADVISERS - This document has been prepared for approval by your
attorney. Colliers, Xxxxxxx & Xxxxxxxxxx makes no representation or
recommendation as to the legal sufficiency or tax consequences of this document
or the transaction to which it relates. These are questions for your attorney.
In any real estate transaction, it is recommended that you consult with a
professional, such as a civil engineer, industrial hygienist or other person,
with experience in evaluating the condition of the property, including the
possible presence of asbestos, hazardous materials and underground storage
tanks.
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