EXHIBIT 10.75
SUBLEASE
THIS SUBLEASE (this "SUBLEASE"} is dated for reference purposes as of
December 23, 2002, and is made by and between Leadis Technology, Inc., a
Delaware corporation ("SUBLESSEE"), and MTI, a Delaware corporation
("SUBLESSOR").
RECITALS:
This Sublease is made with reference to the following facts:
A. Xxxx Xxxxxxxxx, Trustee, or his Successor Trustee, UTA dated
7/23/77 (Xxxx Xxxxxxxxx Separate Property Trust) as amended, and Xxxxxxx X.
Xxxxx, Trustee, or his Successor Trustee, UTA dated 7/20/77 (Xxxxxxx X. Xxxxx
Separate Property Trust) as amended, as landlord (the "MASTER LESSOR"), and MTI,
Inc., a Delaware corporation, as tenant, entered into that certain Lease
Agreement, dated as of September 8, 1994 (the "ORIGINAL MASTER LEASE") with
respect to a portion ("ORIGINAL MASTER PREMISES") of that certain one story
office building located at 000 Xxxxxxx Xxxxx, Xxxxxxxxx California which portion
consisted of approximately 12,696 square feet of space. The Original Master
Lease was amended by Amendment No. 1 to Lease dated as of October 25, 1996
("FIRST AMENDMENT") which added to the Original Master Premises an additional
9,032 square feet for a total of 21,728 square feet of space which 21,727 square
feet are hereinafter called the "MASTER PREMISES." The Original Master Lease was
further amended by Amendment No. 2 to Lease dated as of March 10, 1998 ("SECOND
AMENDMENT"). The Original Master Lease, the First Amendment and the Second
Amendment are hereinafter collectively called the "MASTER LEASE." A true,
correct and complete copy of the Master Lease is attached hereto as Exhibit A
and incorporated by reference herein. Sublessor is currently the original tenant
under the Master Lease.
B. Sublessee wishes to sublease a portion of the Master Premises
consisting of approximately 4,450 square feet which portion is identified on
Exhibit B attached hereto and incorporated herein by this reference ("SUBLEASED
PREMISES"). Sublessor wishes to sublease the Subleased Premises to Sublessee on
the terms and conditions contained herein.
Accordingly, in consideration of the mutual promises contained herein
and for other good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereto agree as follows:
1. Subleased Premises: Sublessor hereby subleases to Sublessee,
and Sublessee hereby subleases from Sublessor the Subleased Premises on the
terms and conditions contained herein. All capitalized terms in this Sublease
shall have the meaning ascribed to them in the Master Lease unless otherwise
defined herein.
2. Term:
2.1 Term: The term (the "TERM") of this Sublease shall be
for a period commencing on January 26, 2003 if Sublessor has delivered
possession of the Subleased Premises to Sublessee on or before such date (the
"COMMENCEMENT DATE"). The Term shall end, without notice, on June 14, 2006 (the
"EXPIRATION DATE"), unless this Sublease is sooner
-1 of 7-
terminated pursuant to its terms or unless the Master Lease is sooner terminated
pursuant to its terms. If for any reason delivery of possession of the Subleased
Premises has not occurred on or before January 26, 2003, then this Sublease
shall automatically be void and of no force or effect. On any such termination,
neither Sublessor nor Sublessee shall have any rights against or obligations to
the other, provided that Sublessor shall return to Sublessee any monies
previously paid by Sublessee to Sublessor hereunder.
2.2 No Option to Extend: Sublessee hereby acknowledges
that: (i) the expiration date of the Master Lease is June 14, 2006, (ii)
Sublessor has no option whatsoever to extend the Term of the Master Lease, and
(iii) Sublessee must vacate the Subleased Premises fully and completely on or
before June 14, 2006.
3. Rent:
3.1 Base Rent: Sublessee shall pay to Sublessor the rent
("BASE RENT") for the Subleased Premises in the following monthly amounts
payable on the 15th of each month:
Months Amount
------ -----------
1 ($2,580.00)
2-41 ($4,000.00)
Sublessor and Sublessee agree that for all purposes under this Sublease, the
Subleased Premises contains approximately Four Thousand Four Hundred Fifty
(4,450) square feet of rentable area. Base Rent shall be paid in advance prior
to occupancy.
3.2 Additional Rent: This Sublease is a Gross lease and
it is the intent of the parties hereto that Sublessee shall have no costs,
expenses or payments whatsoever in connection with the Subleased Premises or the
Master Lease, and that all such costs, expenses and payments shall be the
responsibility of Sublessor including utilities. Sublessee shall be responsible
for Janitorial.
4. Master Lease:
4.1 Incorporation of Master Lease: The terms, conditions
and respective obligations of Sublessor and Sublessee to each other under this
Sublease shall be the terms of the Master Lease, except as modified in this
Section 4, or as otherwise set forth in this Sublease, or as otherwise
inconsistent with the terms or intent of this Sublease and except that: (a)
wherever in the Master Lease the word "Tenant" appears, for the purposes of this
Sublease, the word "Sublessee" shall be substituted; (b) wherever in the Master
Lease the word "Lease" appears, for the purposes of this Sublease, the word
"Sublease" shall be substituted; and (c) wherever in the Master Lease the word
"Landlord" appears, for the purposes of this Sublease, the word "Sublessor"
shall be substituted. Sublessee hereby acknowledges that it has read and is
familiar with the terms of the Master Lease and agrees that this Sublease is
subordinate and
-2 of 7-
subject to the Master Lease, and that any termination of the Master Lease shall
likewise terminate this Sublease. In the event of any conflict between an
express term of this Sublease and an incorporated term, the express term shall
take precedence and govern.
Termination of Master Lease: If Master Lessor and
Sublessor jointly and voluntarily elect, for any reason whatsoever, to terminate
the Master Lease prior to the scheduled Master Lease termination date, then this
Sublease (if then still in effect) shall terminate concurrently with the
termination of the Master Lease given 365 days written notice with no changes to
the monthly rental. In the event of the Master Lease termination, Sublessee
shall be compensated by Sublessor for the unused portion of prepaid rental.
4.2 Time Allowances; Consents: With respect to any obligation
of Sublessee to be performed under this Sublease, wherever the Master Lease
grants to Sublessor a specified number of days to perform its obligations under
the Master Lease, except as otherwise provided herein, Sublessee shall have the
same number of days to perform the obligation, including, without limitation,
curing any defaults.
4.3 Use: Sublessee may use the Subleased Premises only for
those uses permitted under the Master Lease, and in no event for any use
prohibited or restricted by the Master Lease or by law. Sublessee shall not
commit or permit to be committed on the Subleased Premises any act or omissions
which shall violate any term or condition of the Master Lease.
5. Right to Cure Defaults:
5.1 Sublessee's Rights: If Sublessor fails to perform any
act on its part to be performed by Sublessor hereunder, then Sublessee may, but
shall not be obligated to, after thirty (30) days after the date of Sublessee's
written notice to Sublessor identifying the failure, and after the passage of
any notice and cure periods, and subject to the terms of the Master Lease,
perform such act. All such sums paid, and all reasonable costs and expenses of
performing any such act, shall be payable promptly by Sublessor to Sublessee,
together with interest thereon at the Interest Rate from the date of the
expenditure until repaid.
6. Deposit: Sublessee shall pay Sublessor a security deposit in
the amount of $4,000.00 upon execution of this Sublease agreement. In addition,
the first month rent is due upon execution of this lease.
7. Broker: Sublessor and Sublessee each represent to the other
that they have dealt with no real estate brokers other than Vandermade. Each
party agrees to hold the other party harmless from and against all claims for
brokerage commissions, finder's fees or other compensation made by any other
agent, broker, salesman or finder as a consequence of said party's actions or
dealings with such agent, broker, salesman, or finder.
8. Authority to Execute: Sublessee and Sublessor each represent
and warrant to the other that each person executing this Sublease on behalf of
each party is duly authorized to execute and deliver this Sublease on behalf of
that party.
9. Commencement Date Violations: Notwithstanding anything
contained herein to the contrary, Sublessee shall have no duty, liability or
obligation whatsoever (financial
-3 of 7-
or otherwise) for or with respect to any violation, breach or non-compliance of
the Subleased Premises or Sublessor with respect to the Master Lease, any law,
regulation, ordinance, statute rule or other governmental order that existed on
the Commencement Date.
10. Intentionally Deleted
11. As-Is: Sublessor hereby represents and warrants that as of the
"Sublease Commencement Date" (i) to the best of Sublessor's knowledge, the roof
and building systems (for example, HVAC, mechanical, electrical, plumbing, water
and gas) are in good working order and repair, and (ii) to the best of
Sublessor's knowledge, the Subleased Premises are not in violation of any
ordinance, rule, code or regulation of any governmental agency and Sublessor has
not received any notice of a possible violation. Except for the foregoing
representations, warranties and covenants by Sublessor, Sublessee hereby
subleases the Subleased Premises "as is" and "where is" with no other
representation or warranty being made by Sublessor with respect to condition of
the Subleased Premises, nor any other promise by Sublessor to repair same.
Sublessor shall demise the space.
12. Sublease and Assignment: Pursuant to the restrictions of the
Master Lease, Sublessee may not sublease or assign all or any portion of this
Sublease. Any such Sublease or assignment shall be null, void and of no force or
effect. Sublessor and Sublessee acknowledge that this prohibition on subleasing
and assignment is required specifically by Master Lessor. Sublessor and
Sublessee recognize the difficulties that such a prohibition by Master Lessor
could cause if Sublessee desires to consolidate or merge. Therefore, if: there
shall occur (1) any assignment, merger or consolidation or other reorganization
of or affecting Sublessee and if Sublessee is not the surviving corporation; or
(2) any involuntary assignment or sublease by reason of corporate
reorganization, assignment, merger, consolidation, or for any other reason, then
unless Master Lessor's and Sublessor's advance written consents are obtained
(which consents may be withheld at their sole discretions), then this Sublease
shall terminate on the occurrence of any of the foregoing events.
13. Furniture: The Subleased Premises shall be delivered to
Sublessee with the assets listed on Exhibit C attached hereto which may be used
by Sublessee for no additional consideration throughout the Term. During the
Sublease Term, none of the assets listed on Exhibit C may be removed by
Sublessee from the Subleased Premises at any time and at the end of the term
said assets shall be delivered by Sublessee to Sublessor in the condition in
which they were delivered to Sublessee, reasonable wear and tear excepted.
14. Company Logo Sign. The Sublessee has the right to put signage
bearing the name and logo of the Sublessee at the roadside.
15. Surrender: Notwithstanding the incorporation of Section 8 of
the Master Lease, on expiration of the Term of this Sublease, or on any other
termination of this Sublease, Sublessee shall not be required to remove any
tenant improvements in or alterations to the Subleased Premises that were
installed in the Subleased Premises prior to the Commencement Date.
-4 of 7-
16. Termination Payment. If Master Lessor and Sublessor jointly
and voluntarily elect to terminate the Master Lease and this Sublease as
described in Section 4.2, above, then as of the termination, then Sublessor
shall pay to Sublessee a termination payment equal to the unused rental as of
the date of termination. If the Master Lease is terminated by reason of
Sublessor's breach thereof, and if such breach is in no way related to or
connected with a breach of this Sublease by Sublessee, and if after Master Lease
termination the Master Lessor requires Sublessee to continue its tenancy under
this Sublease at the Basic Rent paid by Sublessor under the Master Lease, then
Sublessor shall pay to Master Lessor on a monthly basis, as and when due, the
difference between the Basic Rent under the Master Lease and the Base Rent under
this Sublease for the remaining term of this Sublease (or if earlier, its
termination for any reason).
17. Miscellaneous:
17.1 Entire Sublease; Amendment: This Sublease (which
includes all exhibits hereto) embodies the entire Sublease and understanding
between the parties relating to the subject matter hereof, and all prior
negotiations, agreements and understandings, oral or written, are hereby
revoked, cancelled and rescinded and are all merged herein and superseded
hereby. Any amendment to this Sublease, including, without limitation, any oral
modification supported by new consideration, must be reduced to writing and
signed by both parties in order to be effective.
17.2 Counterparts: Waiver: This Sublease may be executed
in two or more counterparts, each of which shall be deemed to be an original,
but all of which together shall constitute one and the same instrument. Any
waiver of the performance of any covenant, condition or promise by either party,
in order to be effective, must be in a writing signed by the party who has
allegedly waived the covenant, condition or promise in question.
17.3 Severability: Should any part, term or provision of
this Sublease or any document required herein to be executed or delivered be
declared invalid, void or unenforceable, all remaining parts, terms and
provisions hereof shall remain in full force and effect and shall in no way be
invalidated, impaired or affected thereby.
17.4 Interpretation: The neuter gender includes the
feminine and masculine, and vice-versa, and the singular number includes the
plural. The word "person" includes, in addition to any natural person, a
corporation, partnership, firm, trust, association, governmental body or other
entity. Whether expressly stated or not in this Sublease, any indemnification,
release, waiver, hold harmless, covenant to protect or covenant to defend made
in this Sublease by one party in favor of the other party shall benefit not only
such other party but each and all of its officers, directors, agents, employees,
successors and assigns. The captions of the sections of this Sublease are for
convenience and reference only, and the words contained therein shall in no way
be held to explain, modify, or aid in the interpretation, construction or
meaning of the provisions of this Sublease.
17.5 Attorneys' Fees: In the event that any suit in law or
equity, arbitration or other formal proceeding is instituted by either party to
enforce or interpret any part of this Sublease, or to recover damages for breach
thereof, the prevailing party shall be entitled
-5 of 7-
to recover costs of suit incurred therein, and to also recover as an element of
such costs (or as damages, only if not allowed as costs), a reasonable attorney
fee to be fixed by the presiding tribunal. A party not entitled to recover costs
shall not recover attorney fees. No sum of attorney fees shall be included in
any computation of the amount of judgment or award for purposes of determining
whether a party is entitled to recover costs of attorney fees.
17.6 Construction: The parties hereto agree that each
party and its counsel or advisor have reviewed and revised this Sublease and
that any rule of construction to the effect that ambiguities are to be resolved
against the drafting party shall not apply in the interpretation of this
Sublease or any amendments or exhibits hereto.
17.7 Notice: Any notice, demand, request, consent,
approval, or communication that either party desires or is required to give to
the other party or any other person shall be in writing and served personally,
sent by certified first-class mail, return receipt requested or sent by a
commercial overnight courier service (e.g. FedEx). Any notice, demand, request,
consent, approval or communication that either party desires or is required to
give to the other party shall be addressed to the other party at the address set
forth below:
If to Sublessee:
Prior to Commencement Date:
Leadis Technology, Inc.
0000 X. Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxx, CFO
After Commencement Date:
Leadis Technology, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxx, CFO
If to Sublessor:
MTI Corporation
0000 X. Xx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Either party may change its address by notifying the other party of the change
of address. Notices shall be effective when received or refused, as evidenced by
return receipt or courier's receipt slip.
17.8 Limitation of Liability: No personal liability or
personal responsibility is assumed by, or shall at any time be asserted or
enforceable against, Sublessor's or Sublessee's respective directors, officers,
employees, consultants or advisors on account of
-6 of 7-
this Sublease or on account of any covenant, undertaking or agreement of
Sublessor or Sublessee contained in this Sublease.
17.9 Sublessor's Covenants: Notwithstanding anything to
the contrary in this Sublease, so long as Sublessee is not in default under this
Sublease, Sublessor shall: (1) not modify, amend or waive any provisions thereof
or make any election, exercise any option, right or remedy, or grant any consent
or approval thereunder which would affect Sublessee's interests under this
Sublease without, in each instance, Sublessee's prior written consent; and (2)
pay the rent due and perform all of Sublessor's obligations under the Master
Lease, except to the extent that Sublessee is obligated to perform such
obligations under this Sublease. Sublessor shall (a) upon Sublessee's written
request, notify Master Lessor of its nonperformance under the Master Lease and
request that Master Lessor perform its obligations under the Master Lease.
17.10 Sublessor's Additional Representations and
Warranties: Sublessor represents and warrants that to the best of its actual
knowledge as of Sublessor's signing of this Sublease: (i) the Master Lease is in
full force and effect, and that it has received no written notice that there
exists under the Master Lease any default or event of default by either Master
Lessor or Sublessor or that there has occurred any event which, with the giving
of notice or the passage of time or both, could constitute such a default or
event of default; and (ii) it has received no written notice of any pending or
threatened actions, suits or proceedings before any court or administrative
agency against Sublessor, Master Lessor or third parties which could, in the
aggregate, adversely affect the Subleased Premises or any part thereof or the
ability of Master Lessor or Sublessor to perform their respective obligations
under the Master Lease or of Sublessor to perform its obligations under the
Sublease and (iii) in all material respects, a true correct and complete copy of
the Master Lease is attached hereto as Exhibit A. As used in this Section 17.10,
Sublessor's "actual knowledge" shall mean the conscious knowledge of Xxxxx
Xxxxxxx, in-house real estate counsel for Sublessor, with no duty to
investigate.
IN WITNESS WHEREOF, the parties have executed this Sublease as
of the day and year first above written.
SUBLESSEE: Leadis Technology. Inc., a Delaware corporation
By: /s/ Xxxxxx X. Xxx
------------------------------------------
Xxxxxx X. Xxx
------------------------------------------
Its: CFO
------------------------------------------
SUBLESSOR: MTI, a Delaware corporation
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
------------------------------------------
Its: CFO
------------------------------------------
-7 of 7-
ADDENDUM TO SUBLEASE
This addendum to the sublease dated 12/23/02 made by and between Leadis
Technology a Delaware corporation, hereinafter referred to as the
("Sublessee") and MTI Technologies, Corporation, a Delaware Corporation
hereinafter referred to as the ("Sublessor").
Whereas:
3. Rent
The rent is due on or before the 16th day of each month. A six percent
(6%) Late payment penalty will be charged for any rental payment that is not
received within five (5) working days from the date the rent is due. This
includes any additional amounts that may become due under 3.2 of this agreement.
3.2 Additional Rent:
The Sublease is a Gross lease with the additional exception. Sublessee
shall be responsible for it's prorated share of the utility cost for
electricity over the allowed building usage of $4,133 per month. Any usage
above this base amount will be charged on a quarterly basis to the Sublessee in
the amount equal to 20%. percent of the total xxxxxxxx above the base amount
charged to the Sublessor by the utility company.
Sublessee shall have the right on any twelve month basis to audit at
it's own expense the utility costs for electricity for the entire building and
it's prorated share should Sublessee so choose to do so. Sublessor agrees to
make these records available upon the Sublessee's written request within fifteen
(15) working days at it's offices in Anaheim or wherever the home office of the
corporation may be at the time the demand for records is made.
IN WITNESS WHEREOF, the parties have executed this addition to the
original Sublease and it has become a part thereof as of the day and year first
above written.
SUBLESSEE: Leadis Technology
By: /s/ Xxxxxx X. Xxx
------------------------------------------
Xxxxxx X. Xxx
------------------------------------------
Its: CFO
------------------------------------------
SUBLESSOR: MTI Technologies, Corporation
By: /s/ Xxxx X. Xxxxxxx
------------------------------------------
------------------------------------------
Its: CFO
------------------------------------------
[FLOOR PLAN]
