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EXHIBIT 10.9
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT ("Sublease") is made and entered into this ___ day
of August, 1997, by and between PARADYNE CORPORATION, a Delaware corporation,
whose address is 0000 000xx Xxxxxx Xxxxx, X.X. Xxx 0000, Xxxxx, Xxxxxxx
00000-0000, Attn: Real Estate Manager ("Sublandlord"), and GLOBESPAN
TECHNOLOGY, INC., a Delaware corporation whose address is 000 Xxxxxxx Xxxxx,
Xxx Xxxx, Xxx Xxxxxx 00000 ("Subtenant").
WITNESSETH:
Sublandlord did, on the 8th day of October, 1996, enter into this certain
Lease Agreement, with SHAV ASSOCIATES ("Landlord"), a copy of which Lease
Agreement is attached hereto and marked "Exhibit A" (the "Xxxxxxxxx").
The Subtenant herein does hereby sublease the premises consisting of
approximately twenty-one thousand six hundred (21,600) rentable square feet
(the "Subleased Premises"), consisting of the First Floor in the building
located at 000 Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxxxx. The Subleased Premises
shall be leased on an exclusive basis except for the lunch room and video
conference room located on the First Floor which shall be used on a
non-exclusive basis with Sublandlord . The Subleased
Premises shall be leased on exactly the same terms and conditions stated in the
Xxxxxxxxx, with the following exceptions, to wit:
1. Xxxxxxxxx. The rights of Subtenant under this Sublease are subject and
subordinate in all respects to the Xxxxxxxxx. The provisions of the Xxxxxxxxx
(including any provisions in the Xxxxxxxxx that are incorporated by reference
from other documents) are incorporated by reference in this Sublease with the
same effect as if they were set forth in this Sublease, except as follows:
(a) The term of this Sublease is as provided in Section 2 of this
Sublease;
(b) Subtenant shall pay to Sublandlord the Rent and Additional Rent
pursuant to Section 3 of this Sublease.
(c) Subtenant will be responsible for all expenses related to the
retrofit and buildout of the Subleased Premises except for the costs to
divide the lunch room constituting a part of the Subleased Premises.
Sublandlord and Subtenant shall each pay one-half (1/2) of the cost to
divide the lunchroom. In addition Sublandlord and Subtenant shall pay the
cost of the contract facilities engineer engaged by Sublandlord to manage
and oversee the retrofit and buildout of the Subleased Premises with
Sublandlord paying fifty-five percent (55%) of such cost and Subtenant
paying forty-five percent (45%) of such cost.
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Subtenant shall use the Subleased Premises in accordance with the
provisions of the Xxxxxxxxx. Except as otherwise provided in this
Sublease, Subtenant shall perform and satisfy all the covenants and
conditions of "Tenant" under the Xxxxxxxxx, and shall not do or suffer
anything that constitutes a "Default" under the Xxxxxxxxx. Sublandlord
grants to Subtenant all rights and privileges granted to "Tenant" under
the Xxxxxxxxx. Sublandlord does not purport to grant to Subtenant any
better rights or remedies under the Xxxxxxxxx than are possessed by
Sublandlord, and Sublandlord is not obligated to compel Landlord to
perform any of its obligations under the Xxxxxxxxx.
2. Commencement. The Sublease shall commence on September 1, 1997. The
Sublease shall expire on April 30, 2002 at Noon, Edison, New Jersey time.
3. Rent. The Subtenant shall pay to the Sublandlord as rent for the
Subleased Premises the sum of $628,596.00 per year, which equates to $52,383.00
per month (the "Rent"), payable in advance on the first day of each month
without deduction, abatement, counterclaim or offset whatsoever, throughout the
term of the Sublease plus forty-five percent (45%) of (i) any additional
payments due Landlord under the Xxxxxxxxx and (ii) any cost of security
including, but not limited to security systems and guards (collectively the
"Additional Rent") which Additional Rent shall include but shall not be limited
to Tenant's Proportionate Share of Increase in Taxes, and Tenant's
Proportionate Share of Increase in Operating Expenses. Subtenant shall also be
responsible for the cost of its own utilities including but not limited to
electricity, telephone, HVAC system and I/S expenses together with all
applicable sales tax. The current sublease account includes ??? ???? ????.
Sublandlord does not warrant that it will be providing any security services
and shall not be liable for the failure to provide such services. In addition,
sublandlord shall not be liable if the security services are provided in a
negligent manner.
4. Notices. The Subtenant shall pay the Rent and Additional Rent and shall
forward all notices to Sublandlord at the following address (or such other place
as Sublandlord may hereafter designate in writing):
Paradyne Corporation
0000 000xx Xxxxxx Xxxxx
X.X. Xxx 0000
Xxxxx, Xxxxxxx 0000-0000
Attn: Real Estate Manager
The Sublandlord shall forward all notices to Subtenant at the following
address (or at such other place as Subtenant may hereafter designate in
writing):
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(a) Any notice by either party to the other shall be valid only if in
writing and shall be deemed to be duly given only if delivered personally or
sent by registered or certified, postage prepaid, mail addressed (i) if to
Subtenant, at:
Globespan Technology, Inc.
000 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxxxx 00000
and (ii) if to Sublandlord, at Sublandlord's address as set forth above, or
at such other address for either party as that party may designate by notice
to the other; notice shall be deemed given, if delivered personally, upon
delivery thereof, or if mailed upon the posting thereof.
(b) Subtenant hereby appoints as its agent to receive service of all
dispossessory or distraint proceedings, the person in charge of the
Subleased Premises at the time of occupying the Subleased Premises; and if
there is no person occupying same, then such service may be made by
attachment thereof on the main entrance of the Subleased Premises.
Notwithstanding the changes in the name and place of notice, all of the
other provisions and conditions contained in the Xxxxxxxxx described above shall
remain in full force and effect.
5. ACCESS. Sublandlord and Sublandlord's agents shall have the right to
enter the Subleased Premises at all times subsequent to giving Subtenant
reasonable notice except in the case of an emergency, for which such notice is
not required, to examine the Subleased Premises, to survey the Subleased
Premises, to show the Subleased Premises to prospective mortgagees or lessees,
and to make such decoration, repairs, or alterations, improvements or additions
as Sublandlord may deem necessary and desirable to the Subleased Premises.
Sublandlord shall be allowed to take all material into and upon the Subleased
Premises that may be required in connection with such activity without the same
constituting an eviction or constructive eviction of Subtenant in whole or in
part and the Rent and Additional Rent shall in no way xxxxx while said
activities are being conducted, by reason of loss or interruption of business of
Subtenant or otherwise. If Subtenant shall not be personally present to open and
permit an entry into the Subleased Premises, at any time, when for any reason an
entry therein shall be necessary and permissible, Sublandlord and Sublandlord's
agents may enter the same by a master key or may forcibly enter the same without
rendering Sublandlord or such agents liable therefore (if during such entry
Sublandlord or Sublandlord's agents shall accord reasonable care to Subtenant's
property), and without in any manner affecting the obligations and covenants of
the Sublease. Nothing herein contained, however, shall be deemed or construed to
impose upon Sublandlord any obligation, responsibility, or liability
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whatsoever, for the care, supervision, repair of the building or any part
thereof.
6. Assignment. Subtenant shall not assign, sublease, transfer, pledge
or encumber this Sublease or any interest therein without the prior written
consent of Sublandlord which consent may be withheld in Sublandlord's sole
discretion and any attempted assignment, sublease or other transfer or
encumbrance of this Sublease shall be in violation of the terms and conditions
of this Sublease.
7. Warranties and Representations. Subtenant shall lease the Subleased
Premises in "AS IS, WHERE IS" condition and without any warranties or
representations whatsoever either expressed or implied. Subtenant shall not
make any alterations to the Subleased Premises without the prior written
consent of Sublandlord which consent may be withheld in Sublandlord's sole
discretion. Upon expiration of the term, Subtenant shall leave the Subleased
Premises in good condition, normal wear and tear excepted.
8. Services. Referencing Article 16, Heating, Ventilation, and
Air-Conditioning of the Xxxxxxxxx, Subtenant shall be responsible for all costs
associated with "after hours" air conditioning services requested by Subtenant.
9. Indemnity. Subtenant shall indemnify and hold harmless Sublandlord
and Landlord from all cost, loss, expense or liability incurred by Sublandlord
in connection with its sublease to Subtenant of the Subleased Premises or
otherwise arising from Subtenant's use of Sublandlord and Landlord's property
or any portion of the Subleased Premises. Without limitation, indemnified
losses shall include Sublandlord's loss of all or part of its security deposit
under the Sublease and any other expense or liability incurred by Sublandlord
as a result of a default under the Sublease that is caused by any act or
omission of the Subtenant. Subtenant shall fully reimburse Sublandlord and
Landlord for any indemnified loss within thirty (30) days following the date
Sublandlord or Landlord gives Subtenant notice of the loss. Subtenant shall
make all indemnity payments to Sublandlord at its addresses set forth in
Section 4 of this Sublease or such other address or addresses as Subtenant may
designate in its notice to Sublandlord. The Subtenant's indemnity obligation
under this Sublease is absolute and not subject to any setoff, defense,
deduction, or counterclaim based on a claim that Subtenant may have against
Sublandlord. The obligation of Subtenant under this section will survive the
expiration or termination of this Sublease.
10. Default. Any breach of any covenant, obligation, or representation
by a party under this Sublease, or any "Default" described in the Xxxxxxxxx
constitutes a default under this Sublease. Upon the occurrence of a "Default"
as defined under the Lease, Sublandlord shall have all the rights and remedies
of
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Landlord under the Lease. Additionally, any breach by Subtenant of any
covenant, condition or obligation set forth in this Sublease that is not cured
in the event of a monetary default within three (3) days and in the event of a
non-monetary default within ten (10) days after Subtenant receives from
Sublandlord written notice of the breach will constitute a default hereunder.
Upon the occurrence of a default by Subtenant, Sublandlord may elect to
exercise any one of the following remedies, without prior notice or demand:
(a) Sublandlord may re-let the Subleased Premises for and on
behalf of Subtenant and apply all payments received from said third
party against the Rent payable by Subtenant under this Sublease for the
balance of its stated term, without any obligation to account to
Subtenant for any excess payments received, and Sublandlord may xxx to
recover any damage, deficiency, or loss of Rent and Additional Rent
suffered by Sublandlord because of its re-entry and re-letting of the
Subleased Premises; or
(b) Sublandlord may terminate this Sublease and xxx Subtenant
to recover all unpaid Rent and Additional Rent through the effective
date of the termination, but the parties otherwise will not have any
further rights or obligations under this Sublease; or
(c) Sublandlord, monthly or at such longer intervals as it
elects, may xxx Subtenant to recover any accrued, unpaid Rent and
Additional Rent without any obligation to wait until the end of the
stated term of this Sublease for a final determination of Subtenant's
account; or
(d) Sublandlord may accelerate the Rent and Additional Rent
for the remaining term of this Sublease and xxx Subtenant to recover
the total amount of unpaid Rent and Additional Rent.
The rights given to Sublandlord herein are in addition to any rights that may be
given to Sublandlord by a statute or under law. Pursuit of any of the foregoing
remedies shall not preclude pursuit of any of the other remedies herein provided
or other remedies provided by law. If any provision of this Sublease, or its
application to any situation shall be invalid or unenforceable to any extent,
the remainder of this Sublease, or the application thereof to situations other
than that as to which it is invalid or unenforceable, shall be affected thereby,
and every provision of this Sublease shall be valid and enforceable to the
fullest extent permitted by law.
11. Insurance. During the term of the Sublease, Subtenant shall
maintain at its expense and for the mutual benefit of Sublandlord and Subtenant
such casualty insurance and liability
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insurance on the Subleased Premises as is required pursuant to Article 10 of the
Xxxxxxxxx.
12. Consent to Sublease. This Sublease is subject to Landlord's approval.
If Landlord fails to give its prior written approval then this Sublease shall
be null and void with no further obligation between parties.
13. Attorney's Fees. If any Rent or Additional Rent owing under this
Sublease is collected by or through an attorney at law, Subtenant shall pay all
attorney's fees incurred by Sublandlord as a result of any breach or default by
Subtenant under this Sublease.
14. Miscellaneous. All of the other provisions and conditions contained
in the Xxxxxxxxx described above shall remain in full force and effect.
15. Time of Essence. Time is of the essence of this Sublease.
IN WITNESS WHEREOF, Sublandlord and Subtenant have executed this Sublease
Agreement dated as of the date set forth above.
Witness: SUBLANDLORD:
PARADYNE CORPORATION, a
Delaware corporation
By: /s/
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Name: Name:
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Title:
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Name: Date: 1/15/98
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SUBTENANT:
GLOBESPAN TECHNOLOGY, INC., a
Delaware corporation
By: /s/
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Name: Name:
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Title:
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Date:
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Name:
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