EXHIBIT 10.25
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SUBLEASE
1. PARTIES. This Sublease, dated October 18, 1996, is made between
Dialogic Corporation, a New Jersey corporation ("Sublessor"), and DSP Group,
Inc., a Delaware corporation ("Sublessee").
2. MASTER SUBLEASE. Sublessor is the sublessee under a written sublease
("Master Sublease"), wherein Amdahl Corporation ("Master Tenant") leased to
Sublessor the real property located in the City of Santa Clara, County of Santa
Clara, State of California, described as approximately 73,075 square feet of
office, research, and development space with an address of 3120 Scott Boulevard
("Master Premises"). Effective January 1, 1997 Sublessor is the successor by
assignment of the Sublessee's interest in the Master Sublease.
3. MASTER LEASE. Master Tenant is the lessee under a written lease dated
November 21, 1983, between Carl E. Berg and Mary Ann Berg, Trustees of the Berg
Living Trust UTA, dated May 1, 1981, as to an undivided 81.01% interest, Clyde
Berg and Nancy Berg, Trustees of the Clyde Berg Living Trust UTA, dated
December 17, 1981, as to an undivided 11.83% interest, and Clyde Berg, Trustee
of Clyde Berg's Child Trust UTA, dated June 2, 1978, as to an undivided 7.16%
interest (collectively, "Master Landlord"), as amended by an Amendment to Lease
dated May 17, 1989, wherein Master Landlord leased to Master Tenant the Master
Premises. Said lease and amendments are herein collectively referred to as the
"Master Lease".
4. PREMISES. Sublessor hereby subleases to Sublessee on the terms and
conditions set forth in this Sublease the following portion of the Master
Premises ("Premises"): 14,334 square feet, including the optional area and
shipping/receiving, on the first floor as set forth on Exhibit A attached
hereto. The square footage area figures presented in this agreement will be
verified, by a qualified firm and at the Sublessor's expense, according to the
BOMA Standard Method of Floor Measurement (ANSI Z65.1-1980 Reaffirmed, 1989) for
rentable area. The
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measured square footage amounts will be incorporated into this lease by an
attachment and the monthly rent expense adjusted. If Sublessee desires to
vacate the 813 square feet of optional space it shall give Sublessor at least
ten (10) days prior written notice. Sublessee shall also have the right to use
the common areas (restrooms, elevator to garage, hallways thereto) of the Master
Premises, but not those areas used by Sublessor or its personnel or invitees,
and to use the docking area for shipping and receiving. Additionally,
Sublessee's employees shall be permitted to use the exercise facilities at the
Master Premises, if such facilities are present, at their own cost provided any
employee desiring to use such facilities has been evaluated and trained before
using the facilities in the same manner as Sublessor's employees and signed a
release form in favor of Sublessor. Sublessor shall be able to increase the
amount of rent retroactively to any period of time that it can show that
Sublessee used, for any purpose including storage of materials, more space than
it notified Sublessor that it was using ("Unauthorized Usage"). Rent for the
Unauthorized Usage shall be twice the rental per foot set forth herein.
5. PARKING. Sublessee shall be entitled to that number of parking spaces
according to the following formula rounded down to the nearest whole number:
Square footage leased by Sublessee x 278 = Number of parking spaces
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72,000
For example, in the first month of this Sublease, Sublessee shall be entitled to
a total of 55 parking spaces calculated as follows:
14,334 x 278 = 55
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72,000
Sublessee shall be entitled to have one underground parking space per thousand
square feet of their rented premises, rounded down to the nearest whole number.
Initially this shall be equal to fourteen (14) underground parking spaces.
6. WARRANTY BY SUBLESSOR. Sublessor warrants and represents to Sublessee
that the Master Sublease has not been amended or modified except as expressly
set forth herein, that
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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 Sublease, and that
Sublessor has no knowledge of any claim by the Master Tenant that Sublessor is
in default or breach of any of the provisions of the Master Sublease. Further,
Sublessor represents that it has no knowledge of any claim by Master Landlord
that Master Tenant is in default or breach of any provisions of the Master
Lease.
7. TERM. The term of this Sublease shall commence on January 1, 1997
("Commencement Date") and end of December 31, 1999 ("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 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 due solely to
Sublessor's fault, 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 abate until
delivery of possession. Notwithstanding the foregoing, if Sublessor has not
delivered Possession to Sublessee within thirty (30) days after the Commencement
Date due solely to Sublessor's fault, 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 canceled, 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 and effect, and Sublessor shall have no further liability to
Sublessee on account of such delay or cancellation. If Sublessor permits
Sublessee to take
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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.
Sublessor agrees to let Sublessee utilize its presently occupied space on the
third floor of the Premises for a period of forty days after allowing Sublessee
occupancy of the leased Premises on the first floor following Netro's vacating
of said space. The payment made by Sublessee in accordance with section 9.1 of
this agreement shall represent full consideration for the use of this third
floor space for the forty day period. In the event that Sublessee is not able
to completely vacate the third floor Premises within forty days after occupancy
of the first floor Premises, Sublessee agrees to pay to the Sublessor of record,
a penalty fee equal to $750 per day in addition to its rent obligation under the
Sublease. This penalty fee shall be increased to $1,500 per day for each day
Sublessee has not vacated the third floor Premises after sixty days after
initial occupancy of the first floor Premises.
8. OPTIONS TO EXTEND TERM. Sublessee has not been granted any option to
extend the term of this sublease.
9. RENT.
9.1 RENT. Sublessee shall pay to Sublessor as rent hereunder,
without deduction, setoff, notice, or demand, at 3120 Scott Boulevard, Santa
Clara, California, 95054 or at such other place as Sublessor shall designate
from time to time by notice to Sublessee, the sum of $1.50 per square foot of
leased space per month, in advance on the first day of each month of the term.
This monthly rental amount will increase to $1.52 per square foot for the
calendar year commencing January 1, 1998 and to $1.55 per square foot for the
calendar year commencing January 1, 1999. This monthly rental amount is
inclusive of the following Premises and common area expenses: property taxes,
lighting replacement, cleaning and maintenance of common area restrooms,
landscape maintenance, trash disposal, exterior building security
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services, water services, gas services, sewer services, HVAC and air
conditioning services, and plumbing services in the common areas. All other
services and expenses shall be the responsibility of Sublessee, including,
without limitation, janitorial and electrical services for the leased Premises.
Sublessee shall prepay to Sublessor upon execution of this Sublease the sum of
Twenty-one Thousand, Five Hundred One and No/100 Dollars ($21,501.00) as rent
(or partial rent if the actual rent is higher) for the last month of the initial
term of this Sublease. 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.
9.2 EARLY TERMINATION. If Sublessee terminates this Sublease at any
time prior to the initial term, Sublessee shall pay an early termination fee in
the amount of three (3) months average rent based on the period of time
Sublessee leased the Premises.
9.3 USE OF RECEPTIONIST. Sublessee shall be entitled to utilize the
services of Sublessor's receptionist on a nonexclusive basis for a period of
forty (40) hours per week (Monday through Friday from 8 AM to 5 PM, Holidays and
days off taken by Sublessor excepted) in exchange for payment to Sublessor in
addition to all costs, rents, or payments set forth in this Sublease of an
amount equal to Eighty Dollars ($80) per week.
9.4 USE OF SHIPPING/RECEIVING. Sublessor shall be entitled to
utilize the services of Sublessee's shipping clerk on a nonexclusive basis for a
period of forty (40) hours per week (Monday through Friday from 8 am to 5 pm,
Holidays and days taken off by Sublessee excepted) in exchange for payment to
Sublessee of an amount equal to Twenty ($20.00) per day. This amount will be
reviewed no later than March 31, 1997 and renegotiated in good faith by the
parties. The shipping clerk shall not act as agent of Sublessor, but merely log
in receipt of material and make available outgoing material to shipper for
pick-up.
10. SECURITY DEPOSIT. Sublessee shall deposit with Sublessor upon
execution of this Sublease the sum of Twenty-one Thousand, Five Hundred One and
No/100 Dollars ($21,501.00)
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as security for Sublessee's faithful performance of Sublessee's obligation
hereunder ("Security Deposit"). If Sublessee fails to pay rent or other charges
(including any payments for Improvements) 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 an 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 Sublessee's default or breach, or
for any loss or damage sustained by Sublessor as a result of Sublessee's default
or breach. If Sublessor 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 separate 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 this
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, whichever shall last occur, and
provided Sublessee is not then in default of any of its obligations hereunder,
the Security Deposit, or so much thereof as had not theretofore been applied by
Sublessor, shall be returned to Sublessee or to the last assignee, if any, of
Sublessee's interest hereunder.
11. USE OF PREMISES. The Premises shall be used and occupied only for
office use, research and development, assembly and testing, marketing and
distribution of telecommunications products and shall not be used in violation
of the Master Lease or local, federal, or state law.
12. IMPROVEMENTS. Sublessee shall not make any improvements or
alterations (collectively, "Improvements") to the leased Premises without the
prior written consent of Sublessor (including Sublessor's consent and approval
of all contractors used on the Improvements) during the terms of this Sublease,
and such approval is not to be unreasonably
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withheld. Sublessee shall be responsible for compliance with all state and
local laws regarding such Improvements. Any Improvements initiated by Sublessee
that may result in an inspection of the Premises by a governmental authority,
will require Sublessee to notify Sublessor at least ten (10) days in advance of
such inspection.
13. 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 consents of Master Landlord and Master Tenant, if
such consents are required under the terms of the Master Lease and Master
Sublease, respectively), and such approval is not to be unreasonably withheld.
14. INSURANCE POLICIES. All insurance policies required to be maintained
by Sublessee pursuant to the Master Lease shall name Sublessor, Master Tenant
and Master Landlord as additional insureds.
15. MAINTENANCE, REPAIRS AND ALTERATIONS.
15.1 MAINTENANCE. Throughout the Term, Sublessor, at its cost, shall
maintain, in good and sanitary condition, all portions of the Premises,
including, without limitation, all structural components of the Premises,
including, without limitation, the electrical and plumbing systems, in good
order and condition, except that damage occasioned by Sublessee's acts shall be
repaired by Sublessee at its expense. Sublessee agrees to keep the Premises
clean and neat in appearance and to remove all trash and debris which may be
found in or around the Premises. Sublessee waives the provisions of California
Civil Code Sections 1941 and 1942 with respect to Sublessor's obligations for
tenantability of the Premises and Sublessee's right to make repairs and deduct
the expenses of such repairs from rent.
15.2 OBLIGATIONS. If Sublessee fails to perform Sublessee's
obligations under this Section or under any other Section of this Lease,
Sublessor may, at Sublessor's option, enter
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upon the Premises after two (2) days prior written notice to Sublessee (except
in the case of emergency, in which case no notice shall be required), perform
such obligations on Sublessee's behalf and put the Premises in good order,
condition and repair. The cost thereof together with interest thereon at the
maximum rate then allowable by law shall be due and payable as additional rent
to Sublessor on the first (1st) day of the month immediately following that
month during which Sublessor performs such obligation.
15.3 REPAIR. On the last day of the Term or on any sooner
termination, Sublessee shall surrender the Premises to Sublessor in the same
condition as received, ordinary wear and tear excepted, clean and free of debris
and broom clean. Sublessee shall repair any damage to the Premises occasioned
by the installation or removal of its trade fixtures, furnishings and equipment
and reinstall carpet (the same quality as that was taken out) or other items
taken out of the Premises.
15.4 SURRENDER. All alterations, improvements and additions (whether
or not they constitute trade fixtures of Sublessee), which may be made on the
Premises, shall become Sublessor's property and remain upon and be surrendered
with the Premises at the expiration of the Term.
15.5 SECURITY. Not Applicable.
16. OTHER PROVISIONS OF SUBLEASE. All applicable terms and conditions of
the Master Lease and the Master Sublease are incorporated into and made a part
of this Sublease (including, without limitation, the default provisions set
forth in Section 10 of the Master Lease) as if Sublessor were the lessor
thereunder, Sublessee the lessee thereunder, and the Premises the Master
Premises, EXCEPT for the following:
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(a) MASTER LEASE: The first four (4) paragraphs of the untitled
section of the Master Lease before Section 1 and found on pages 1 through 5 of
the Master Lease, Sections 2, 4, 5, 7, 13, 15, 21, 22, 33, 34, 35, and
Exhibit B.
(b) MASTER SUBLEASE: Article I, Recitals contained in Article II,
Sections 1, 3, 4, 5(a), 6, 7, 9, 13, 17, and Exhibit C.
(c) CONFLICTS: If any terms of the Master Lease or the Master
Sublease conflict with the terms of this Sublease, the terms of this Sublease
shall control.
17. 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
attorneys' fees.
18. AGENCY DISCLOSURE. Sublessor and Sublessee each warrant that they
have not dealt with any real estate brokers in connection with this transaction
and that no real estate broker fees or commissions are due.
19. NOTICES. All notices and demands 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: Dialogic Corporation
1515 Route 10
Parsippany, NJ 07054
Attention: Chief Financial Officer
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To Sublessee: DSP Group, Inc.
3120 Scott Boulevard
Santa Clara, CA 95054
Attention: Senior Officer
20. CONSENT BY LESSOR. THIS SUBLEASE SHALL BE OF NO FORCE OR EFFECT
UNLESS CONSENTED TO BY MASTER LANDLORD AND MASTER TENANT WITHIN 10 DAYS AFTER
EXECUTION HEREOF, IF SUCH CONSENT IS REQUIRED UNDER THE TERMS OF THE MASTER
LEASE OR THE MASTER SUBLEASE.
21. 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.
22. ARBITRATION. Any dispute between the parties arising out of this
Agreement shall be submitted to final and binding arbitration in the City of
Santa Clara, County of Santa Clara, State of California, under the Commercial
Arbitration Rules of the American Arbitration then in effect, upon written
notification and demand of either party therefore. In the event either party
demands such arbitration, the American Arbitration Association shall be
requested to submit a list of prospective arbitrators consisting of persons
experienced in matters involving business disputes. The provisions of
California Code of Civil Procedure Section 1283.05, and the laws of the State of
California, are incorporated herein and shall be applicable to the arbitration.
In making the award, the arbitrator shall award recovery of costs and expenses
of the arbitration and reasonable attorneys' fees to the prevailing party. Any
award may be entered as a judgment in any court of competent jurisdiction.
Should judicial proceedings be commenced to enforce or carry out this provision
or any arbitration award, the prevailing party in such proceedings shall be
entitled to reasonable attorneys' fees and costs, in addition to other relief.
Either party shall have the right, prior to receiving an arbitration award, to
obtain preliminary relief from a court of competent jurisdiction to: (i) avoid
injury or prejudice to that party; (ii) to protect the rights of
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any party; (iii) to maintain the status quo as it existed immediately prior to
the dispute; or (iv) to obtain possession of property in order to avoid a
material risk of damage to, or loss of, that property.
23. SEVERABILITY. Sublessor and Sublessee hereby agree and acknowledge
that should any condition, provision, covenant contained in this Sublease and
any and all addenda, modifications, or changes thereof, be found to be in
violation of any federal, state, county or local statute, law, order, rule or
regulation, said condition, provision or covenant shall be eliminated or severed
from said Sublease Agreement and any addenda thereto, and said condition,
provision, or covenant shall not invalidate, eliminate, or alter the terms of
all other conditions, provisions, and covenants contained in the Sublease or
addenda thereto.
24. MODIFICATION. This Sublease shall not be amended, modified, appended
or altered unless said amendment, modification, appendage, or alteration is made
in writing and duly executed and signed by a Sublessor and Sublessee.
25. ENTIRE AGREEMENT. This Agreement and the exhibits attached hereto and
the other documents delivered pursuant hereto constitute the full and entire
understanding and agreement between and among the parties with regard to the
subjects hereof and thereof and shall supersede any and all oral or written
communications, correspondence, agreements, understandings, promises, or
representations.
26. INDEMNIFICATION. Sublessee shall defend, indemnify and hold harmless
Sublessor, Master Tenant, Master Landlord and their respective partners,
directors, officers, employees, agents and representatives from any and all
claims, liabilities, causes of action, liens, judgments, awards, damages,
losses, fines, penalties, sanctions, costs, and expenses that arise from, or are
related to either (i) Sublessee's breach of any duties, obligations,
liabilities, or covenants that arise from said Sublease or any modification
addenda, or alteration of this Sublease, or (ii) any and all claims of third
parties made against the Sublessor, Master Tenant, or Master Landlord
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that arise from the conduct, actions, representations, agreements, warranties,
guarantees, or promises of Sublessee and any partners, directors, officers,
employees, agents, licensees, invitees and representatives of Sublessee.
27. SIGNAGE. Subject to the limitations of local signage regulations,
Sublessor agrees to let Sublessee install one wall mounted sign on the right
hand side of the concrete exterior facade of the building above the first floor
windows in front of the area to be leased by Sublessee. The parties have agreed
that Sublessee's sign may consist of the white lettered portion (which spells
"DSP GROUP") of one of its current signs, and that the sign may be illuminated
so as to visible and readible from Scott Boulevard, provided that the sign's
brightness is reduced to be significantly less bright that Sublessor's signs.
All costs including, but not limited to, the construction, installation,
removal, and necessary permits for this sign will be the responsibility of the
Sublessee.
Sublessor: DIALOGIC CORPORATION Sublessee: DSP GROUP, INC.
By: /s/ EDWARD B. JORDAN By: /s/ MARTIN M. SKOWRON
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Title: Chief Financial Officer and Title: Senior Vice President
Vice President
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MASTER LANDLORD'S CONSENT TO SUBLEASE
The undersigned Master Landlord under the Master Lease, hereby consents to
the foregoing Sublease without waiver of any restriction in the Master Lease
concerning further assignment or subletting. Master Landlord certifies that as
of the date Master Landlord's execution hereof, neither Master Tenant nor Master
Landlord is 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.
Master Landlord: /s/
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By:
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Title:
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MASTER TENANT'S CONSENT TO SUBLEASE
The undersigned Master Tenant under the Master Sublease, hereby consents to
the foregoing Sublease without waiver of any restriction in the Master Sublease
concerning further assignment or subletting.
Master Tenant: AMDAHL CORPORATION
By: /s/ Jonathon C. Andersen
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Title: Director, Corporate Real Estate
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CONSENTS OF MASTER LANDLORD AND MASTER TENANT
Notwithstanding any of the provisions in the attached sublease, each of Master
Landlord and Master Tenant hereby consents to the attached sublease with a term
commencing January 1, 1997, between Dialogic Corporation ("Sublessor"), a New
Jersey corporation, and DSP Group, Inc. ("Sublessee"), a Delaware corporation,
on the following conditions:
1. Nothing contained in said sublease or this consent shall create any
obligations or duties on the part of the Master Landlord beyond those in
the Master Lease;
2. Nothing contained in said sublease or this consent shall release,
excuse, or waive performance of any obligation of Master Tenant under the
Master Lease;
3. Nothing in said sublease or this consent shall amend or modify any
provision of the Master Lease or otherwise affect Master Landlord's or
Master Tenant's rights and remedies under the Master Lease;
4. This consent applies only to the attached sublease and shall not
authorize any further sublease or assignment during the term of the Master
Lease or during any option period of the Master Lease; and
5. The Sublessee acknowledges that the rent it is paying is less than the
rent required pursuant to the terms of the Master Lease.
There exists no event of default, breach, failure of condition or event of
default under the Master Lease to the best of Master Landlord's knowledge, but
Master Landlord has made no independent investigation.
Landlord has been advised that Sublessor and Sublessee may agree to perform
tenant improvements to the subject property. Landlord reserves the right,
pursuant to the terms of the Master Lease, to require Master Tenant to return
the premises to the condition contemplated under the Master Lease.
MASTER LANDLORD MASTER TENANT
Amdahl Corporation
/s/ Carl E. Berg By: /s/ Jonathon C. Andersen
- ----------------------------------- ----------------------------------
By: Carl E. Berg Name: Jonathon C. Andersen
For Berg Family Trusts Title: Director, Corporate Real Estate
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FIRST AMENDMENT TO SUBLEASE
This amendment dated December 4, 1996, for reference purposes only, is made
and entered into by and between Dialogic Corporation ("Sublessor") and DSP
Group, Inc. ("Sublessee").
RECITALS:
A. The parties have previously entered into a Sublease dated October 18,
1996, for reference purposes only.
B. The premises defined in the Sublease as specified in paragraph 4 states
the following:
The square footage area figures presented in this
agreement will be verified, by a qualified firm and
at the Sublessor's expense, according to the BOMA
Standard Method of Floor Measurement (ANSI Z65.1-1980
Reaffirmed, 1989) for rentable area.
C. Sublessor has engaged a qualified architectural firm to measure the
square footage pursuant to paragraph 4 of the Sublease.
NOW THEREFORE, the parties agree as follows:
1. To amend the square footage as defined in paragraph 4 to be 15,645.
2. To increase the monthly rent as defined in paragraph 9 to be $23,467.
3. To increase the total number of parking spaces as defined in
paragraph 5 to be 60.
4. To increase the security deposit as defined in paragraph 10 to be $23,467.
5. Except as specifically amended or modified by this First Amendment to
Sublease, all other terms and provisions of the Sublease shall remain
unmodified and in full force and effect.
Sublessor: DIALOGIC CORPORATION Sublessee: DSP GROUP, INC.
By: /s/ Edward B. Johns By: /s/ Martin M. Skowron
____________________________ ____________________________
Title: Chief Financial Officer Title: Senior Vice President
and Vice President