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EXHIBIT 10.17
SUBLEASE
[CB XXXXXXX XXXXX LOGO]
CB XXXXXXX XXXXX, INC.
BROKERAGE AND MANAGEMENT
LICENSED REAL ESTATE BROKERS
1. PARTIES.
This Sublease dated November 2, 1998 is made between DATAWORKS
CORPORATION ("Subleasor"), and FIREPOND, INC. a Minnesota Corporation
("Subleassee").
2. MASTER LEASE.
Subleassor is the leasee under a written lease dated September 6, 1996,
wherein INTERACTIVE GROUP, INC. ("Lessor") leased to Subleesor the real
property located in the City of Bloomington, County of Henneyln, State
of Minnesota described as Riverview Office Tower 0000 00xx Xxxxxx Xxxxx
("Master Premises"). Said lease has been amended by the following
amendments: None. Said lease and amendments are herein collectively
referred to as the "Master Lease" and are attached hereto Exhibit "A".
3. PREMISES.
Subleasee hereby subleeses to Subleasor on the terms and conditions set
forth in this Sublease the following portion of the Master Premises
("Premises"): Suite 1000, an approximate 12,113 square foot office
suite on the 10th floor of Riverview Office Tower.
4. WARRANTY BY SUBLEASOR.
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 be in default or breach of any of the provisions
of the Master Lease.
5. TERM.
The term of this Sublease shall commence on December 1, 1998
("Commencement Date"), or when Lessor consents to this Sublease (if
such consent is required under the Master Lease), whichever shall last
occur, and end on January 31, 2002 ("Termination Date"), unless
otherwise sooner terminated in accordance with the provisions of this
Sublease. 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 Subleasor does not deliver
Possession to Sublessee on the actual commencement of the Term,
Subleesor 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 Subleasor. If Sublessor
delivers Possession to Sublessee on or before such effective date, this
Sublease shall remain in full force and effect. If Subleasor fails to
deliver Possession to Sublessee on or before such effective date, this
Sublease shall be canceled, in which case all consideration previously
paid by Sublessee to Subleasor 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 in
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
hesitation the payment of rent.
6. RENT.
6.1 Minimum First. Sublessee shall pay to Sublessor as minimum
rent, without deduction, setoff, notice, or demand, at
Dataworks Corporation, 0000 Xxxxxxx Xxxxxx Xxxxxxxxx, Xxx
Xxxxx, XX 00000 or at such other place as Subleasor shall
designate from time to time by notice to Sublessee, the sum of
Eight Thousand Seven Hundred Seventy-One and 83/100 Dollars
($8,771.83) 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 Seven
Hundred Seventy-One and 83/100 Dollars ($8,771.83) as rent for
December 1998. If the Term begins or ends on a day other than
the first or last day of a month, the rent for the partial
month shall be prorated on a par diem basis. Additional
provisions:
6.2 Operating Costs. If the Master Lease required Sublessor to pay
to Lessor all or a portion of the expenses of operating the
building and/or project of which the Premises are a part
("Operating Cost"), including but
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not limited to taxes, utilities, or insurance, then Sublessee
shall pay to Sublessor as additional rent one hundred percent
(100%) of the amounts payable by Sublessor for Operating Costs
incurred during the Term. Such additional rent shall be
payable as and when Operating Costs are payable to Sublessor
to Lessor. If the Master Lease provides for the payment of
Sublessor of Operating Costs on the basis of an estimate
thereof, then as and when adjustments between estimated and
actual Operating Costs are made under the Master Lease, the
obligations of Sublessor and Sublessee hereunder shall be
adjusted in a like manner, and if any such adjustment shall
occur after the expiration or earlier termination of the term,
then the obligations of Sublessor and Sublessee under this
Subsection 6.2 shall survive such expiration or termination.
Sublessor shall, upon request by Sublessee, furnish Sublessee
with copies of all statements submitted by Lessor of actual or
estimated Operating Costs during the Term. The 1998 estimated
Tax and Operating Expenses total $10.31 per rentable square
foot which equates to $10,407.08 per month.
7. SECURITY DEPOSIT.
Sublessee shall deposit with Sublessor upon execution of this Sublease
the sum of Eight Thousand Seven Hundred Seventy-One and 83/100 Dollars
($8,771.83) as security for Sublessee's faithful performance of
Sublessee's obligation hereunder ("Security Deposit"). If Sublessee
fails to pay rent or other charges when due under this Sublease, or
fails to perform any of its other obligations hereunder, Sublessor may
use or apply all or any portion of the Security Deposit for the payment
of any rent or other amount then due hereunder and unpaid, for the
payment of any other sum for which Sublessor may become obligated by
reason of Sublessor's default or breach, or for any loss or damage
sustained by Sublessor as a result of Sublessee's default or breach. If
Subleasor so uses any portion of the Security Deposit, Sublessee shall
within ten (10) days after written demand by Sublessor, restore the
Security deposit to the full amount originally deposited, and
Sublessee's failure to do so shall constitute a default under this
Sublease. Sublessor shall not be required to keep the Security Deposit
deposited from its general accounts, and shall have no obligation or
liability for payment of interest on the Security Deposit. In the event
Sublessor assigns its interest in the Sublease, Sublessor shall deliver
to its assignee so much of the Security Deposit as is then held by
Sublessor. Within ten (10) days after the Term has expired, or
Sublessee has vacated the Premises, or any final adjustment pursuant to
Subsection 6.2 hereof has been made, whichever shall last occur, and
provided Sublessee is not then in default of any of its obligation
hereunder, the Security Deposit or so much hereof as had not therefore
been applied by Sublesssor, shall be returned to Sublessee or to the
last assignee, if any, of Sublessee's interest hereunder.
8. USE OF PREMISES.
The Premises shall be used and occupied only for general office use to
include the development, sales and support of enterprise
sales/marketing software, and for no other use or purpose.
9. ASSIGNMENT AND SUBLETTING.
Sublessee shall not assign this Sublease or further sublet all or any
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. OTHER PROVISIONS OF SUBLEASE.
All applicable terms and conditions of this Master Lease are
incorporated into and made a part of this Sublease as if Sublessor were
the xxxxxx thereunder, Sublessee the leasee thereunder, and the
Premises the Master Premises, except for the following: (See attached
Addendum). Sublessee assumes and agrees to perform the lessee's
obligations under the Master Lease during the Term of the extent that
such obligations are applicable to the Premises, except that the
obligation to pay rent to Lessor under the Master Lease shall be
considered performed by Sublessee in the extent and in the amount rent
is paid to Sublessor in accordance with Section 6 of this Sublease.
Sublessee shall not commit or suffer any act or omission that will
violate any of the provisions of the Master Lease. Sublessor shall
exercise due diligence in attempting to cause Lessor to perform its
obligations under the Master Lease for the benefit of Sublessee. If the
Master Lease terminates, this Sublease shall terminate and the parties
shall be relieved of any further liability or obligation under this
Sublease, provided however, that if the Master Lease terminates as a
result of a default or breach by Sublessor or Sublessee under this
Sublease and/or the Master Lease, then the defaulting party shall be
liable to the nondefaulting party for the damages suffered as a result
of such termination. Notwithstanding the foregoing, if the Master Lease
gives Sublessor any right to terminate the Master Lease in the event of
the partial or total damage, destruction, or condemnation of the Master
Premises or the building or project of which the Master Premises are a
part, the exercise of such right by Subleasor shall not constitute a
default or breach hereunder.
11. ATTORNEY'S FEES.
If Sublessor, Sublessee, or Broker 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.
12. AGENCY DISCLOSURE.
Subleassor and Sublessee each warrant that they have dealt with no
other real estate broker in connection with this transaction except:
Xxxxx X. Marsohinke of CB Xxxxxxx Xxxxx, Inc. who represents DATAWORKS
CORPORATION and Xxxx McCarv of CB XXXXXXX XXXXX, INC., who represents
FIREPOND, INC. In the event that CB XXXXXXX XXXXX, INC., represents
both Sublessor and Sublessee, Sublessor and Sublessee hereby confirm
that they were timely advised of the dual representation and that they
consent to the same, and that they do not expect said broker to
disclose to either of them the confidential information of the other
party.
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13. COMMISSION.
Upon execution of this Sublease, and consent thereto by Lessor (if such
consent is required under the terms of the Master Lease), Sublessor
shall pay Broker a real estate brokerage commission in accordance with
Sublessor's contract with Broker for the subleasing of the Premises, if
any, and otherwise in the amount of Fifty-Four Thousand Five Hundred
Eight and 50/100 Dollars ($54,508.50) for services rendered in
effecting this Sublease. Broker is hereby made a third party
beneficiary of the Sublease for the purpose of enforcing its right to
said commission.
14. NOTICES.
All notices and demands which may or are to be required or permitted to
be given by either party on the 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 hereinbelow, 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 Subleasor 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 Subleassor: Xx. Xxx X. Xxxxxxx
Director of Corp. Facilities
Dataworks Corp.
0000 Xxxxxxx Xxxxxx Xxxx.
Xxx Xxxxx, XX 00000
To Sublessee: Xx. Xxx Xxxxxxxx
General Counsel
Firepond, Inc.
Riverview Office Tower #1000
0000 00xx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
15. CONSENT BY LESSOR.
THIS SUBLEASE SHALL BE OF NO FORCE OR EFFECT UNLESS CONSENTED TO BY
LESSOR IN ACCORDANCE WITH SECTION 14C OF THE MASTER LEASE.
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 198a Civil
Rights Act and all amendments thereof, the Foreign Investment in the
Property Tax Act, the Comprehensive Environmental Response Compensation
and Liability Act, and Americans With Disabilities Act.
SUBLESSOR: DATAWORKS CORPORATION SUBLESSEE: FIREPOND, INC.
By: /s/ [Signature Illegible] By: /s/ Xxxxx X. Xxxxxx
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Title: EVP and CFO Title: President and CEO
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By: By:
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Title: Title:
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Date: 11-9-98 Date: 11-4-98
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LESSOR'S CONSENT TO SUBLEASE (See separate document)
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CONSULT YOUR ADVISORS - This document has been prepared for approval by your
attorney. No representation or recommendation is made by CB Xxxxxxx Xxxxx, Inc.
as to the legal sufficiency or tax consequences of this document or the
transaction for which it relates. These are questions for your attorney or
account.
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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