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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, who 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.
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
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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.
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 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
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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
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
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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 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 the 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:
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PARADYNE CORPORATION, a
Delaware corporation
____________________________ By:_____________________________
Name:_______________________ Name:___________________________
Title:__________________________
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Name:_______________________ Date:___________________________
SUBTENANT:
GLOBESPAN TECHNOLOGY, INC., a
_______________ corporation
____________________________ By:_____________________________
Name:_______________________ Name:________________________
Title:_______________________
____________________________ Date:___________________________
Name:_______________________
