The Prime Lease. (a) This Sublease and all rights of Subtenant under this Sublease and with respect to the Premises are subject to the terms, conditions, and provisions of the Prime Lease, except for the provisions of the Prime Lease deemed not applicable to this Sublease under this Section 10(a). Subtenant assumes and agrees to perform faithfully and be bound by, with respect to the Premises, all of Tellabs’ obligations, covenants, agreements, and liabilities under the Prime Lease and all terms, conditions, provisions, and restrictions contained in the Prime Lease except: (i) that the following provisions of the Prime Lease do not apply to this Sublease: Sections 2.0, 2.1, 2.4.0, 2.4.1, 2.4.2, 2.5, 2.6.1, 2.7.1, 2.7.2, 3.0, 3.1, 3.2, 3.3, 3.3.1, 3.4.1, 3.5, 8.20, 8.21, 8.22, 8.23, 8.24, or any provisions allowing or purporting to allow any rights or options of lease, expansion, reduction, cancellation, or extension, or any rent concessions, abatements, or construction allowances, or any rights, obligations, or covenants capable of being exercised or performed, as applicable, solely by Tellabs; (ii) that Tellabs shall have no obligation to Subtenant to construct or install tenant improvements; and (iii) Subtenant has a period of time equal to one-half the period of time that the tenant under the Prime Lease has to respond to or otherwise cure any notices given by Landlord under the Prime Lease. (b) Without limitation of the foregoing: (i) Except for Subtenant’s Work, which is subject to Landlord’s Consent, Subtenant shall not make any changes, alterations, or additions in or to the Premises without the prior written consent of Tellabs and Landlord. Tellabs agrees to not unreasonably withhold, condition, or delay it consent, but may condition its consent on the consent of Landlord and may, to the extent that Landlord agrees to deal directly with Subtenant, require that Subtenant contact Landlord directly for its consent and take all other steps needed to assure that Tellabs will have no additional obligations to Landlord under the Prime Lease. If Tellabs does not require that Subtenant contact Landlord directly for consent, or Landlord refuses to deal directly with Subtenant, then Tellabs will request Landlord’s consent on behalf of Subtenant within a reasonable period of time (but no longer than 30 days) after Tellabs receives a written request from Subtenant. (ii) If Subtenant desires to take any action, and the Prime Lease requires Tellabs to obtain the consent of Landlord before undertaking that type of action, Subtenant will not undertake the action without the prior written consent of Tellabs and Landlord. Tellabs agrees to not unreasonably withhold, condition, or delay its consent, but may condition its consent on the consent of Landlord and may, to the extent that Landlord agrees to deal directly with Subtenant, require that Subtenant contact Landlord directly for its consent and take all other steps needed to assure that Tellabs will have no additional obligations to Landlord under the Prime Lease. If Tellabs does not require that Subtenant contact Landlord directly for consent, or Landlord refuses to deal directly with Subtenant, then Tellabs will request Landlord’s consent on behalf of Subtenant within a reasonable period of time (but no longer than 30 days) after Tellabs receives a written request from Subtenant. Within 30 days of notice from Tellabs, Subtenant will reimburse Tellabs for all reasonable out of pocket costs, expenses, and reasonable attorneys' fees that Tellabs incurs in attempting to obtain a consent from Landlord. (iii) Tellabs has, with respect to Subtenant, all rights, privileges, options, reservations, and remedies granted or allowed to, or held by, Landlord under the Prime Lease, including without limitation, all rights given to Landlord and its agents and representatives by the Prime Lease to enter the Prime Lease Space. (iv) Subtenant will maintain insurance of the kinds and in the amounts required to be maintained by Tellabs under the Prime Lease. All policies of liability insurance maintained by Subtenant shall name as additional insureds Landlord and Tellabs and their respective officers, directors, shareholders, members, managers, or partners, as the case may be, and the respective agents and employees of each of them. In addition, Subtenant will furnish Landlord and Tellabs with evidence of the insurance coverage in amounts that Landlord or Tellabs may reasonably require. (v) Neither Subtenant nor Tellabs will do anything or suffer or permit anything to be done that could result in a default under the Prime Lease or permit Landlord to cancel the Prime Lease. (c) Despite anything contained in this Sublease or in the Prime Lease to the contrary, Tellabs and Subtenant agree that: (i) Rent will not xxxxx due to any damage to or destruction of the Premises unless, and then only to the extent that, rent and other payments actually xxxxx under the Prime Lease with respect to the Premises. If, however, Tellabs has an absolute and unconditional right to terminate the Prime Lease under Section 6.1 of the Prime Lease, and each of the subtenants in the Prime Lease Space, including Subtenant, requests in writing that Tellabs terminate the Prime Lease under Section 6.1 of the Prime Lease, then Tellabs will terminate the Prime Lease, and this Sublease will terminate effective upon the termination of the Prime Lease. (ii) Subtenant is not entitled to any portion of the proceeds of any award for a condemnation or other taking, or a conveyance in lieu of a condemnation or taking, of all or any portion of the Building, the Prime Lease Space, or the Premises, but Subtenant may pursue a separate action against the applicable governmental authority for an award with respect to the Sublease and Subtenant's costs and expenses of relocation as a result of the condemnation or other taking. Rent will not xxxxx due to any condemnation or other taking unless, and then only to the extent that, rent and other payments actually xxxxx under the Prime Lease with respect to the Premises. If, however, Tellabs has an absolute and unconditional right to terminate the Prime Lease under Section 6.3 of the Prime Lease, and each of the subtenants in the Prime Lease Space, including Subtenant, requests in writing that Tellabs terminate the Prime Lease under Section 6.3 of the Prime Lease, then Tellabs will terminate the Prime Lease, and this Sublease will terminate effective upon the termination of the Prime Lease. Despite the foregoing, subject to the rights of Landlord’s lenders, if and to the extent that any improvements shall be taken pursuant to the power of eminent domain, shall have been separately paid for by Subtenant when made, shall not be restored, and for which a separate award shall not be made by the taking authority, but the determination of the award takes into account those improvements, Subtenant shall be entitled out of the award to an amount equal to Subtenant’s unamortized cost of those improvements. Subtenant’s unamortized cost of its improvements shall be determined from Subtenant’s federal income tax returns and shall exclude any contributions to those costs by Tellabs by way of the Allowance, abatement of Rent, or otherwise. (iii) Except as expressly set forth in this Sublease, Subtenant is not entitled to exercise or have Tellabs exercise any option under the Prime Lease, including, without limitation, any option to terminate or extend the term of the Prime Lease or lease additional space. (iv) If the terms of the Prime Lease conflict with the terms of this Sublease, the terms of this Sublease control as between Tellabs and Subtenant. (d) Tellabs does not assume the obligations or liabilities of Landlord under the Prime Lease and is not making the representations or warranties, if any, made by Landlord in the Prime Lease. With respect to work, services, repairs, and restoration or the performance of other obligations required of Landlord under the Prime Lease, Tellabs agrees, upon written request from Subtenant, to use reasonable efforts (which efforts shall include, to the extent necessary, sending notice and demand letters and default notices to Landlord on Subtenant’s behalf within a reasonable period of time [but no longer than 30 days] after receipt of a written request from Subtenant) to obtain the same from Landlord, and, if Landlord's failure to perform continues, Tellabs agrees, at Subtenant’s option, to either (a) at Subtenant’s sole cost and expense, exercise Tellabs’ self-help rights set forth in Section 8.17(B) of the Prime Lease to perform the repairs that Landlord failed to perform or (b) enforce Landlord's obligations and liabilities under the Prime Lease in a manner reasonably directed by Subtenant, including litigation if necessary. All out of pocket costs and expenses, including, without limitation, attorneys' fees, incurred by Tellabs in exercising its self-help rights and attempting to enforce Landlord’s obligations and liabilities under the Prime Lease as aforesaid shall be reimbursed by Subtenant within 10 business days of notice from Tellabs, and shall be deemed Rent due and payable under this Sublease. Tellabs shall not be liable in damages, nor shall Rent xxxxx (unless, and then only to the extent that, rent and other payments actually xxxxx under the Prime Lease with respect to the Premises), for or on account of any failure by Landlord to perform the obligations and duties imposed on it under the Prime Lease. If Tellabs is reimbursed by Landlord for any costs incurred by Tellabs in exercising a self-help remedy on Subtenant’s behalf, or if any attorneys’ fees are awarded to Tellabs in any litigation pursued on Subtenant’s behalf, then the amount reimbursed to Tellabs shall be passed through to Subtenant to the extent those amounts are actually received by Tellabs. (e) Nothing contained in this Sublease shall be construed to create privity of estate or contract between Subtenant and Landlord except the agreements of Subtenant in Sections 16 and 17 in favor of Landlord, and then only to the extent set forth in those sections.
Appears in 1 contract
Samples: Sublease (Datawatch Corp)
The Prime Lease. (a) This Sublease Sublessee acknowledges that it has reviewed and is familiar with all rights of Subtenant the terms, covenants, and conditions of the Prime Lease, a copy of which is attached hereto as Exhibit B and made a part hereof. Except as otherwise expressly provided in, or otherwise inconsistent with this Sublease, or to the extent not applicable to the Subleased Premises, all of the terms, covenants, conditions, stipulations, rights, obligations, remedies, and agreements of the Prime Lease are incorporated herein and made a part hereof as if set forth herein at length. Sublessee assumes and agrees, except as otherwise provided herein, to perform, observe, and comply with all of the terms, covenants, and conditions to be performed, observed, and complied with by the tenant under the Prime Lease and on the part of Sublessor to be performed, observed and complied with under the Lease, as the same may or shall relate to the occupancy of the Subleased Premises, and except as modified by this Sublease Sublease. Sublessee hereby makes all waivers and grants all rights, for the benefit of Sublessor and Lessor, made or granted by Sublessor as tenant under the Prime Lease. Notwithstanding anything herein to the contrary, and without limitation to the generality of the foregoing provisions, the parties hereto specifically acknowledge and agree that the provisions of Rider No. 1 to Office Lease, except for Sections 4, 6, 12, 14, 15 and 16, and except with respect to the Premises rights of Sublessor under Section 8 of said Rider as described in Section 3 hereof, are personal to Sublessor and inconsistent with this Sublease, and that the provisions of the First Amendment to Office Lease related to storage space, are personal to Sublessor and inconsistent with this Sublease.
(b) This Sublease is expressly made subject to all of the terms, conditionscovenants, and provisions conditions of the Prime Lease, except for as otherwise expressly provided herein. Subject to the provisions Consent to Sublease annexed hereto as Exhibit C, this Sublease shall terminate upon the expiration or termination of the Prime Lease deemed not applicable to this Sublease under this Section 10(a). Subtenant assumes Lease, whereupon all covenants and agrees to perform faithfully and be bound by, with respect agreements made by Sublessor herein shall cease without prejudice to the right of Sublessor to recover all Rental accrued to the latter of termination or recovery of the Subleased Premises.
(c) Except as otherwise specified in this Sublease, all of Tellabs’ obligations, covenants, agreements, and liabilities under the Prime Lease and all terms, conditions, provisions, and restrictions contained time limits set forth in the Prime Lease except:
(i) that for the following provisions giving of notices, making demands, performance of any act, condition or covenant, or the Prime Lease do not apply to exercise of any right, remedy or option, are changed for the purpose of this Sublease: Sections 2.0, 2.1by lengthening or shortening the same in each instance, 2.4.0as appropriate, 2.4.1so that notices may be given, 2.4.2, 2.5, 2.6.1, 2.7.1, 2.7.2, 3.0, 3.1, 3.2, 3.3, 3.3.1, 3.4.1, 3.5, 8.20, 8.21, 8.22, 8.23, 8.24demand made, or any provisions allowing act, condition or purporting to allow covenant performed or any rights or options of leaseright, expansion, reduction, cancellationremedy, or extensionoption hereunder exercised, by Sublessor or any rent concessions, abatements, or construction allowances, or any rights, obligations, or covenants capable of being exercised or performed, as applicable, solely by Tellabs;
(ii) that Tellabs shall have no obligation to Subtenant to construct or install tenant improvements; and
(iii) Subtenant has a period of time equal to one-half the period of time that the tenant under the Prime Lease has to respond to or otherwise cure any notices given by Landlord under the Prime Lease.
(b) Without limitation of the foregoing:
(i) Except for Subtenant’s Work, which is subject to Landlord’s Consent, Subtenant shall not make any changes, alterations, or additions in or to the Premises without the prior written consent of Tellabs and Landlord. Tellabs agrees to not unreasonably withhold, condition, or delay it consent, but may condition its consent on the consent of Landlord and may, to the extent that Landlord agrees to deal directly with Subtenant, require that Subtenant contact Landlord directly for its consent and take all other steps needed to assure that Tellabs will have no additional obligations to Landlord under the Prime Lease. If Tellabs does not require that Subtenant contact Landlord directly for consent, or Landlord refuses to deal directly with Subtenant, then Tellabs will request Landlord’s consent on behalf of Subtenant within a reasonable period of time (but no longer than 30 days) after Tellabs receives a written request from Subtenant.
(ii) If Subtenant desires to take any action, and the Prime Lease requires Tellabs to obtain the consent of Landlord before undertaking that type of action, Subtenant will not undertake the action without the prior written consent of Tellabs and Landlord. Tellabs agrees to not unreasonably withhold, condition, or delay its consent, but may condition its consent on the consent of Landlord and may, to the extent that Landlord agrees to deal directly with Subtenant, require that Subtenant contact Landlord directly for its consent and take all other steps needed to assure that Tellabs will have no additional obligations to Landlord under the Prime Lease. If Tellabs does not require that Subtenant contact Landlord directly for consent, or Landlord refuses to deal directly with Subtenant, then Tellabs will request Landlord’s consent on behalf of Subtenant within a reasonable period of time (but no longer than 30 days) after Tellabs receives a written request from Subtenant. Within 30 days of notice from Tellabs, Subtenant will reimburse Tellabs for all reasonable out of pocket costs, expenses, and reasonable attorneys' fees that Tellabs incurs in attempting to obtain a consent from Landlord.
(iii) Tellabs has, with respect to Subtenant, all rights, privileges, options, reservations, and remedies granted or allowed to, or held by, Landlord under the Prime Lease, including without limitation, all rights given to Landlord and its agents and representatives by the Prime Lease to enter the Prime Lease Space.
(iv) Subtenant will maintain insurance of the kinds and in the amounts required to be maintained by Tellabs under the Prime Lease. All policies of liability insurance maintained by Subtenant shall name as additional insureds Landlord and Tellabs and their respective officers, directors, shareholders, members, managers, or partnersSublessee, as the case may be, (and each party covenants that it will do so) within three (3) days prior to the respective agents and employees of each of them. In addition, Subtenant will furnish Landlord and Tellabs with evidence expiration of the insurance coverage time limit, taking into account the maximum grace period, if any, relating thereto contained in amounts that Landlord or Tellabs may reasonably require.
(v) Neither Subtenant nor Tellabs will do anything or suffer or permit anything to be done that could result in a default under the Prime Lease or permit Landlord to cancel the Prime Lease.
(c) Despite anything contained in this Sublease or in the Prime Lease to the contrary, Tellabs and Subtenant agree that:
(i) Rent will not xxxxx due to any damage to or destruction of the Premises unless, and then only to the extent that, rent and other payments actually xxxxx under the Prime Lease with respect to the Premises. If, however, Tellabs has an absolute and unconditional right to terminate the Prime Lease under Section 6.1 of the Prime Lease, and each of the subtenants in the Prime Lease Space, including Subtenant, requests in writing that Tellabs terminate the Prime Lease under Section 6.1 of the Prime Lease, then Tellabs will terminate the Prime Lease, and this Sublease will terminate effective upon the termination of the Prime Lease.
(ii) Subtenant is not entitled to any portion of the proceeds of any award for a condemnation or other taking, or a conveyance in lieu of a condemnation or taking, of all or any portion of the Building, the Prime Lease Space, or the Premises, but Subtenant may pursue a separate action against the applicable governmental authority for an award with respect to the Sublease and Subtenant's costs and expenses of relocation as a result of the condemnation or other taking. Rent will not xxxxx due to any condemnation or other taking unless, and then only to the extent that, rent and other payments actually xxxxx under the Prime Lease with respect to the Premises. If, however, Tellabs has an absolute and unconditional right to terminate the Prime Lease under Section 6.3 of the Prime Lease, and each of the subtenants in the Prime Lease Space, including Subtenant, requests in writing that Tellabs terminate the Prime Lease under Section 6.3 of the Prime Lease, then Tellabs will terminate the Prime Lease, and this Sublease will terminate effective upon the termination of the Prime Lease. Despite the foregoing, subject to the rights of Landlord’s lenders, if and to the extent that any improvements shall be taken pursuant to the power of eminent domain, shall have been separately paid for by Subtenant when made, shall not be restored, and for which a separate award shall not be made by the taking authority, but the determination of the award takes into account those improvements, Subtenant shall be entitled out of the award to an amount equal to Subtenant’s unamortized cost of those improvements. Subtenant’s unamortized cost of its improvements shall be determined from Subtenant’s federal income tax returns and shall exclude any contributions to those costs by Tellabs by way of the Allowance, abatement of Rent, or otherwise.
(iii) Except as expressly set forth in this Sublease, Subtenant is not entitled to exercise or have Tellabs exercise any option under the Prime Lease, including, without limitation, any option to terminate or extend the term of the Prime Lease or lease additional space.
(iv) If the terms of the Prime Lease conflict with the terms of this Sublease, the terms of this Sublease control as between Tellabs and Subtenant.
(d) Tellabs does not assume the obligations or liabilities of Landlord under the Prime Lease and is not making the representations or warranties, if any, made by Landlord in the Prime Lease. With respect to work, services, repairs, and restoration or the performance of other obligations required of Landlord under the Prime Lease, Tellabs agrees, upon written request from Subtenant, to use reasonable efforts (which efforts shall include, to the extent necessary, sending notice and demand letters and default notices to Landlord on Subtenant’s behalf within a reasonable period of time [but no longer than 30 days] after receipt of a written request from Subtenant) to obtain the same from Landlord, and, if Landlord's failure to perform continues, Tellabs agrees, at Subtenant’s option, to either (a) at Subtenant’s sole cost and expense, exercise Tellabs’ self-help rights set forth in Section 8.17(B) of the Prime Lease to perform the repairs that Landlord failed to perform or (b) enforce Landlord's obligations and liabilities under the Prime Lease in a manner reasonably directed by Subtenant, including litigation if necessary. All out of pocket costs and expenses, including, without limitation, attorneys' fees, incurred by Tellabs in exercising its self-help rights and attempting to enforce Landlord’s obligations and liabilities under the Prime Lease as aforesaid shall be reimbursed by Subtenant within 10 business days of notice from Tellabs, and shall be deemed Rent due and payable under this Sublease. Tellabs shall not be liable in damages, nor shall Rent xxxxx (unless, and then only to the extent that, rent and other payments actually xxxxx under the Prime Lease with respect to the Premises), for or on account of any failure by Landlord to perform the obligations and duties imposed on it under the Prime Lease. If Tellabs is reimbursed by Landlord for any costs incurred by Tellabs in exercising a self-help remedy on Subtenant’s behalf, or if any attorneys’ fees are awarded to Tellabs in any litigation pursued on Subtenant’s behalf, then the amount reimbursed to Tellabs shall be passed through to Subtenant to the extent those amounts are actually received by Tellabs.
(e) Nothing contained in this Sublease shall be construed to create privity of estate or contract between Subtenant and Landlord except the agreements of Subtenant in Sections 16 and 17 in favor of Landlord, and then only to the extent set forth in those sections.
Appears in 1 contract
Samples: Sublease Agreement (Versata Inc)
The Prime Lease. (a) This Sublease and all rights of Subtenant under this Sublease hereunder and with respect to the Premises are subject to the terms, conditions, conditions and provisions of the Prime Lease. Except with respect to the Excluded Sublease Provisions (as hereinafter defined), except for the provisions of the Prime Lease deemed not applicable to this Sublease under this Section 10(a). Subtenant hereby assumes and agrees to perform faithfully and be bound by, with respect to the Premises, by all of Tellabs’ Sublandlord's obligations, covenants, agreements, agreements and liabilities under the Prime Lease during the Term. Except to the extent such terms and provisions are inconsistent with or are specifically contrary to the express written provisions of this Sublease and except with respect to the Excluded Sublease Provisions (as hereinafter defined), all of the terms, conditionscovenants and conditions of the Prime Lease are by this reference incorporated herein and made a part of this Sublease as if Sublandlord were Landlord and Subtenant were Tenant. The parties agree that the following sections of the Prime Lease are expressly not incorporated into this Sublease: (i) Article I (Term); (ii) Article II (Rental); (iii) the first two paragraphs of Section A of Article V (Escalations) and the first two paragraphs of Section B of Article V (Escalations); (iv) the first paragraph of Article VI (Signs and Parking; (v) the first paragraph of Article XI; (vi) Article XIV (Fire, provisionsCasualty or Taking); (vii) Article XIX (Notices); (viii) Article XX (Entire Agreement); (ix) Article XXI (Broker); (x) Exhibit A and the Work Letter to the Prime Lease, and restrictions contained the Amendment to Lease; (xi) any provisions in the Prime Lease except:
(i) that the following provisions of the Prime Lease do not apply to this Sublease: Sections 2.0, 2.1, 2.4.0, 2.4.1, 2.4.2, 2.5, 2.6.1, 2.7.1, 2.7.2, 3.0, 3.1, 3.2, 3.3, 3.3.1, 3.4.1, 3.5, 8.20, 8.21, 8.22, 8.23, 8.24, or any provisions allowing or purporting to allow any rights or options of lease, expansion, reduction, cancellation, or extension, or Sublandlord any rent concessions, abatements, concessions or abatements or construction allowances, or ; and (xii) any provisions in the Prime Lease conferring upon Tenant any rights, obligationsprivileges, or covenants capable of being exercised options or performedreservations in the Building except as may be provided herein (the foregoing collectively, as applicable, solely by Tellabs;
(ii) that Tellabs shall have no obligation to Subtenant to construct or install tenant improvements; and
(iii) Subtenant has a period of time equal to one-half the period of time that the tenant under the Prime Lease has to respond to or otherwise cure any notices given by Landlord under the Prime Lease"Excluded Sublease Sections").
(b) Without limitation of limiting the foregoing:
(i) Except for Subtenant’s Work, which is subject to Landlord’s Consent, Subtenant shall not make any changes, alterations, alterations or additions in or to the Premises without the prior written Sublandlord's consent of Tellabs thereto in writing, such consent not to be unreasonably withheld or delayed, and Landlord. Tellabs agrees to not unreasonably withhold, condition, or delay it consent, but may condition its 's consent on the consent of Landlord and may, to the extent that Landlord agrees to deal directly with Subtenant, require that Subtenant contact Landlord directly for its consent and take all other steps needed to assure that Tellabs will have no additional obligations to Landlord thereto in writing under the Prime Lease. If Tellabs does not require that Subtenant contact Landlord directly for consent, or Landlord refuses to deal directly with Subtenant, then Tellabs will request Landlord’s consent on behalf of Subtenant within a reasonable period of time (but no longer than 30 days) after Tellabs receives a written request from Subtenant.Section 22 hereof;
(ii) If Subtenant desires to take any action, other action and the Prime Lease requires Tellabs to would require that Sublandlord obtain the consent of Landlord before undertaking that type any action of actionthe same kind, Subtenant will shall not undertake the action same without the prior written consent of Tellabs Sublandlord, such consent not to be unreasonably withheld or delayed, and Landlord. Tellabs agrees to not unreasonably withholdNotwithstanding the foregoing, condition, or delay its consent, but Sublandlord may condition its consent on the consent of Landlord being obtained and may, may require Subtenant to the extent that Landlord agrees to deal directly with Subtenant, require that Subtenant contact Landlord directly for its consent and take all other steps needed to assure that Tellabs will have no additional obligations to Landlord under the Prime Lease. If Tellabs does not require that Subtenant contact Landlord directly for such consent, or Landlord refuses to deal directly with Subtenant, then Tellabs will request Landlord’s consent on behalf of Subtenant within a reasonable period of time (but no longer than 30 days) after Tellabs receives a written request from Subtenant. Within 30 days of notice from Tellabs, Subtenant will reimburse Tellabs for all reasonable out of pocket costs, expenses, and reasonable attorneys' fees that Tellabs incurs in attempting to obtain a consent from Landlord.;
(iii) Tellabs has, All rights given to Landlord and its agents and representatives by the Prime Lease to enter the Premises covered by the Prime Lease shall inure to the benefit of Sublandlord and Landlord and their respective agents and representatives with respect to Subtenant, the Premises;
(iv) Sublandlord shall also have all other rights, privileges, options, reservations, reservations and remedies granted or allowed to, or held by, Landlord under the Prime Lease, including without limitation, all rights given to Landlord and its agents and representatives by the Prime Lease to enter the Prime Lease Space.;
(ivv) Subtenant will shall maintain insurance of the kinds and in the amounts required to be maintained by Tellabs Sublandlord under the Prime Lease. All policies of liability insurance maintained by Subtenant shall name as additional insureds the Landlord and Tellabs Sublandlord and their respective officers, directors, shareholders, members, managers, directors or partners, as the case may be, and the respective agents and employees of each of them. In addition, Subtenant will furnish Landlord and Tellabs with evidence of the insurance coverage in amounts that Landlord or Tellabs may reasonably require.; and
(vvi) Neither Subtenant nor Tellabs will shall not do anything or suffer or permit anything to be done that which could result in a default under the Prime Lease or permit Landlord to cancel the Prime LeaseLease to be cancelled or terminated.
(c) Despite Notwithstanding anything contained in this Sublease herein or in the Prime Lease which may appear to be to the contrary, Tellabs Sublandlord and Subtenant hereby agree thatas follows:
(i) Rent will Subtenant shall not xxxxx due assign, transfer, mortgage or pledge this Sublease, or sublease (which term shall be deemed to include the granting of concessions and licenses and the like) all or any part of the Premises, or suffer or permit this Sublease or the leasehold estate hereby created or any other rights arising under this Sublease to be assigned, transferred or encumbered, in whole or in part, whether voluntarily, involuntarily or by operation of law, or permit the occupancy of the Premises by anyone other than Subtenant. Any attempted assignment, transfer, mortgage, pledge, sublease or encumbrance in violation of this paragraph shall be void. Any and all assignment, sublease or any other transfer or transaction involving any interest of Subtenant in this Sublease shall be governed by all of the terms and conditions of Article IX (Assignment, Sublet and Change of Controlling Interest) of the Prime Lease as if such transfer or transaction had been engaged in or effected by Sublandlord as Tenant.
(ii) Neither rental nor other payments hereunder shall abate by reason of any damage to or destruction of thx Xxxmises or the Premises Furniture, or the Building or any part thereof, unless, and then only to the extent that, rent rental and such other applicable payments actually xxxxx abate under the Prime Lease with respect to the PremisesPremises on account of such event. IfSubtenant acknowledges and agrees that all rights of termination, howeverif any, Tellabs has an absolute of the Tenant set forth in Article XIV (Fire, Casualty or Taking) of the Prime Lease are reserved to Sublandlord, to be exercised or waived in its sole discretion, and unconditional Subtenant shall have no right to terminate this Sublease pursuant to the Prime Lease under Section 6.1 provisions of Article XIV of the Prime Lease, and each of the subtenants in the Prime Lease Space, including Subtenant, requests in writing that Tellabs terminate the Prime Lease under Section 6.1 of the Prime Lease, then Tellabs will terminate the Prime Lease, and this Sublease will terminate effective upon the termination of the Prime Lease.;
(iiiii) Subtenant is shall not entitled have any right to any portion of the proceeds of any award for a condemnation or other taking, or a conveyance in lieu of a condemnation or takingthereof, of all or any portion of the Building, the Prime Lease Space, Building or the Premises, but Premises by virtue of this Sublease;
(iv) Subtenant may pursue a separate action against the applicable governmental authority for an award with respect to the Sublease and Subtenant's costs and expenses of relocation as a result of the condemnation or other taking. Rent will not xxxxx due to any condemnation or other taking unless, and then only to the extent that, rent and other payments actually xxxxx under the Prime Lease with respect to the Premises. If, however, Tellabs has an absolute and unconditional right to terminate the Prime Lease under Section 6.3 of the Prime Lease, and each of the subtenants in the Prime Lease Space, including Subtenant, requests in writing that Tellabs terminate the Prime Lease under Section 6.3 of the Prime Lease, then Tellabs will terminate the Prime Lease, and this Sublease will terminate effective upon the termination of the Prime Lease. Despite the foregoing, subject to the rights of Landlord’s lenders, if and to the extent that any improvements shall be taken pursuant to the power of eminent domain, shall have been separately paid for by Subtenant when made, shall not be restored, and for which a separate award shall not be made by the taking authority, but the determination of the award takes into account those improvements, Subtenant shall be entitled out of the award to an amount equal to Subtenant’s unamortized cost of those improvements. Subtenant’s unamortized cost of its improvements shall be determined from Subtenant’s federal income tax returns and shall exclude have any contributions to those costs by Tellabs by way of the Allowance, abatement of Rent, or otherwise.
(iii) Except as expressly set forth in this Sublease, Subtenant is not entitled right to exercise or have Tellabs Sublandlord exercise any option under the Prime Lease, including, without limitation, any option to terminate or extend the term of the Prime Lease or lease additional space.; and
(ivv) If In the terms event of any conflict between the terms, conditions and provisions of the Prime Lease conflict with the terms and of this Sublease, the terms terms, conditions and provisions of this Sublease shall, in all instances, govern and control as between Tellabs Sublandlord and Subtenant.
(d) Tellabs It is expressly understood and agreed that Sublandlord does not assume and shall not have any of the obligations or liabilities of Landlord under the Prime Lease and that Sublandlord is not making the representations representations, warranties or warrantiesindemnities, if any, made by Landlord in the Prime Lease. Without limiting the foregoing, Sublandlord shall have no obligation to provide any or all of the services, utilities, parking, work, alterations, signage rights, repairs, maintenance, restoration or insurance coverages to be provided by Landlord under the Prime Lease. With respect to work, services, repairs, repairs and restoration or the performance of other obligations required of Landlord under the Prime Lease, Tellabs agreesSublandlord's sole obligation with respect thereto shall be to request the same, upon written request from SubtenantSubtenant that the same have not been provided, and to use reasonable efforts (which efforts shall include, to the extent necessary, sending notice and demand letters and default notices to Landlord on Subtenant’s behalf within a reasonable period of time [but no longer than 30 days] after receipt of a written request from Subtenant) to obtain the same from Landlord, and, if Landlord's failure to perform continues, Tellabs agrees, at Subtenant’s option, to either (a) at Subtenant’s sole cost and expense, exercise Tellabs’ self-help rights set forth in Section 8.17(B) of the Prime Lease to perform the repairs that Landlord failed to perform or (b) enforce Landlord's obligations and liabilities under the Prime Lease in a manner reasonably directed by Subtenant, including litigation if necessary. All out of pocket costs and expenses, including, without limitation, attorneys' fees, incurred by Tellabs in exercising its self-help rights and attempting to enforce Landlord’s obligations and liabilities under the Prime Lease as aforesaid shall be reimbursed by Subtenant within 10 business days of notice from Tellabs, and shall be deemed Rent due and payable under this Sublease. Tellabs Sublandlord shall not be liable in damages, nor shall Rent xxxxx (unless, and then only to the extent that, rent and other payments actually xxxxx under the Prime Lease with respect to the Premises)abate hereunder, for or on account of any failure by Landlord to perform perxxxx the obligations and duties imposed on it Landlord under the Prime Lease. If Tellabs is reimbursed by Landlord for any costs incurred by Tellabs in exercising a self-help remedy on Subtenant’s behalf, or if any attorneys’ fees are awarded to Tellabs in any litigation pursued on Subtenant’s behalf, then the amount reimbursed to Tellabs shall be passed through to Subtenant to the extent those amounts are actually received by Tellabs.
(e) Notwithstanding the foregoing, Subtenant shall have no obligation to (i) cure any default of Sublandlord under the Prime Lease, (ii) perform any obligation of Sublandlord under the Prime Lease which arose prior to the Term Commencement Date and Sublandlord failed to perform, (iii) repair any damage to the Premises caused by Sublandlord, (iv) remove any alterations or additions installed within the Premises by Sublandlord, (v) indemnify Sublandlord or Landlord with respect to any negligence or willful misconduct of Sublandlord, its agents, invitees, employees or contractors or other subtenants of the Building other than Subtenant, or (vi) discharge any liens on the Premises or the Building which arise out of any work performed, or claimed to be performed, by or at the direction of Sublandlord.
(f) Nothing contained in this Sublease shall be construed to create privity of estate or contract between Subtenant and Landlord Landlord, except the agreements of Subtenant in Sections 16 11 and 17 12 hereof in favor of Landlord, and then only to the extent set forth of the same.
(g) Notwithstanding anything contained herein or in those sectionsthe Prime Lease which may appear to be to the contrary and except for obligations under the Lease which have been assumed by Subtenant pursuant to the terms of this Sublease, Sublandlord covenants and agrees to perform all of Sublandlord's obligations under the Lease to be performed and observed by Sublandlord and not to do anything or omit to do anything which will cause a default, beyond applicable notice and cure periods, under the Lease. Except in the event of a casualty or condemnation and provided and so long as this Sublease is in full force and effect and Subtenant is not in default hereunder, Sublandlord will not voluntarily surrender the Premises or enter into an agreement with Landlord to terminate the Prime Lease with respect to the Premises, nor shall it agree to modify or amend the Prime Lease in any way that will reduce the rights or increase the obligations of Subtenant under this Sublease in any material respect.
Appears in 1 contract
Samples: Sublease (Macrochem Corp)
The Prime Lease. (a) This Sublease and all rights of Subtenant under this Sublease and with respect to the Premises are subject to the terms, conditions, and provisions of the Prime Lease, except for the provisions of the Prime Lease deemed not applicable to this Sublease under this Section 10(a). Subtenant assumes and agrees to perform faithfully and be bound by, with respect to the Premises, all of Tellabs’ Zoll’s obligations, covenants, agreements, and liabilities under the Prime Lease and all terms, conditions, provisions, and restrictions contained in the Prime Lease except:
(i) that the following provisions of the Prime Lease do not apply to this Sublease: Sections 2.0, 2.1, 2.4.02.2, 2.4.1, 2.4.22.4, 2.5, 2.6.1the last paragraph of 2.6, 2.7.1, 2.7.2, 2.8(A), 3.0, 3.1, 3.2, 3.3, 3.3.1, 3.4.1, 3.58.18, 8.20, 8.21, 8.22, 8.23, 8.24, or any provisions allowing or purporting to allow any rights or options of lease, expansion, reduction, cancellation, or extension, or any rent concessions, abatements, or construction allowances, or any rights, obligations, or covenants capable of being exercised or performed, as applicable, solely by TellabsZoll;
(ii) that Tellabs Zoll shall have no obligation to Subtenant to construct or install tenant improvements; and
(iii) Subtenant has a period of time equal to the greater of (A) one-half the period of time that the tenant under the Prime Lease has has, or (B) five (5) business days to respond to or otherwise cure any notices given by Landlord under the Prime Lease, except in the case of an emergency, in which case Subtenant shall have the same amount of time to respond or cure as Zoll has under the Prime Lease.
(b) Without limitation of the foregoing:
(i) Except for Subtenant’s Work, which is subject to Landlord’s Consent, Subtenant shall not make any changes, alterations, or additions in or to the Premises without the prior written consent of Tellabs Zoll and Landlord. Tellabs Zoll agrees to not unreasonably withhold, condition, or delay it consent, but may condition its consent on the consent of Landlord and may, to the extent that Landlord agrees to deal directly with Subtenant, require that Subtenant contact Landlord directly for its consent and take all other steps needed to assure that Tellabs Zoll will have no additional obligations to Landlord under the Prime Lease. If Tellabs Zoll does not require that Subtenant contact Landlord directly for consent, or Landlord refuses to deal directly with Subtenant, then Tellabs Zoll will request Landlord’s consent on behalf of Subtenant within a reasonable period of time (but no longer than 30 ten (10) business days) after Tellabs Zoll receives a written request from Subtenant. Notwithstanding anything in this Section 10 to the contrary, Zoll’s and Landlord’s consent shall not be required for alterations which (a) are minor, cosmetic and non-structural in nature and do not exceed a cost of $20,000, and (b) would not require Landlord’s consent if performed by Zoll under the terms of the Prime Lease.
(ii) If Subtenant desires to take any action, and the Prime Lease requires Tellabs Zoll to obtain the consent of Landlord before undertaking that type of action, Subtenant will not undertake the action without the prior written consent of Tellabs Zoll and Landlord. Tellabs Zoll agrees to not unreasonably withhold, condition, or delay its consent, but may condition its consent on the consent of Landlord and may, to the extent that Landlord agrees to deal directly with Subtenant, require that Subtenant contact Landlord directly for its consent and take all other steps needed to assure that Tellabs Zoll will have no additional obligations to Landlord under the Prime Lease. , If Tellabs Zoll does not require that Subtenant contact Landlord directly for consent, or Landlord refuses to deal directly with Subtenant, then Tellabs Zoll will request Landlord’s consent on behalf of Subtenant within a reasonable period of time (but no longer than 30 ten (10) business days) after Tellabs Zoll receives a written request from Subtenant. Within 30 days of notice from TellabsZoll, Subtenant will reimburse Tellabs Zoll for all reasonable out of pocket costs, expenses, and reasonable attorneys' ’ fees that Tellabs Zoll incurs in attempting to obtain a consent from Landlord.
(iii) Tellabs Zoll has, with respect to Subtenant, all rights, privileges, options, reservations, and remedies granted or allowed to, or held by, Landlord under the Prime Lease, including without limitation, all rights given to Landlord and its agents and representatives by the Prime Lease to enter the Prime Lease Space.
(iv) Subtenant will maintain insurance of the kinds and in the amounts required to be maintained by Tellabs Zoll under the Prime Lease, and in the following amounts: Commercial General Liability – Not less than $2,000,000 in the aggregate; Commercial Umbrella – Not less than $5,000,000; Comprehensive Automobile Insurance – Not less than $1,000,000; Worker’s Compensation Insurance – Not less than $1,000,000. All policies of liability insurance maintained by Subtenant shall name as additional insureds Landlord and Tellabs Zoll and their respective officers, directors, shareholders, members, managers, or partners, as the case may be, and the respective agents and employees of each of them. In addition, Subtenant will furnish Landlord and Tellabs Zoll with evidence of the insurance coverage in amounts that Landlord or Tellabs Zoll may reasonably require.
(v) Neither Subtenant nor Tellabs Zoll will do anything or suffer or permit anything to be done that could result in a default under the Prime Lease or permit Landlord to cancel the Prime Lease.,
(c) Despite anything contained in this Sublease or in the Prime Lease to the contrary, Tellabs Zoll and Subtenant agree that:
(i) Rent will not xxxxx due to any damage to or destruction of the Premises unless, and then only to the extent that, rent and other payments actually xxxxx under the Prime Lease with respect to the Premises. If, however, Tellabs has an absolute and unconditional right to terminate the Prime Lease under Section 6.1 of the Prime Lease, and each of the subtenants in the Prime Lease Space, including Subtenant, requests in writing that Tellabs terminate the Prime Lease under Section 6.1 of the Prime Lease, then Tellabs will terminate the Prime Lease, and this Sublease will terminate effective upon the termination of the Prime Lease.
(ii) Subtenant is not entitled to any portion of the proceeds of any award for a condemnation or other taking, or a conveyance in lieu of a condemnation or taking, of all or any portion of the Building, the Prime Lease Space, or the Premises, but Subtenant may pursue a separate action against the applicable governmental authority for an award with respect to the Sublease and Subtenant's ’s costs and expenses of relocation as a result of the condemnation or other taking. Rent will not xxxxx due to any condemnation or other taking unless, and then only to the extent that, rent and other payments actually xxxxx under the Prime Lease with respect to the Premises. If, however, Tellabs has an absolute and unconditional right to terminate the Prime Lease under Section 6.3 of the Prime Lease, and each of the subtenants in the Prime Lease Space, including Subtenant, requests in writing that Tellabs terminate the Prime Lease under Section 6.3 of the Prime Lease, then Tellabs will terminate the Prime Lease, and this Sublease will terminate effective upon the termination of the Prime Lease. Despite the foregoing, subject to the rights of Landlord’s lenders, if and to the extent that any improvements shall be taken pursuant to the power of eminent domain, shall have been separately paid for by Subtenant when made, shall not be restored, and for which a separate award shall not be made by the taking authority, but the determination of the award takes into account those improvements, Subtenant shall be entitled out of the award to an amount equal to Subtenant’s unamortized cost of those improvements. Subtenant’s unamortized cost of its improvements shall be determined from Subtenant’s federal income tax returns and shall exclude any contributions to those costs by Tellabs by way of the Allowance, abatement of Rent, or otherwise.
(iii) Except as expressly set forth in this Sublease, Subtenant is not entitled to exercise or have Tellabs Zoll exercise any option under the Prime Lease, including, without limitation, any option to terminate or extend the term of the Prime Lease or lease additional space.
(iv) If the terms of the Prime Lease conflict with the terms of this Sublease, the terms of this Sublease control as between Tellabs Zoll and Subtenant.
(d) Tellabs Zoll does not assume the obligations or liabilities of Landlord under the Prime Lease and is not making the representations or warranties, if any, made by Landlord in the Prime Lease. , With respect to work, services, repairs, and restoration or the performance of other obligations required of Landlord under the Prime Lease, Tellabs Zoll agrees, upon written request from Subtenant, to use reasonable efforts (which efforts shall include, to the extent necessary, sending notice and demand letters and default notices to Landlord on Subtenant’s behalf within a reasonable period of time [but no longer than 30 ten (10) business days] after receipt of a written request from Subtenant) to obtain the same from Landlord, and, if Landlord's ’s failure to perform continues, Tellabs Zoll agrees, at Subtenant’s option, to either (a) at Subtenant’s sole cost and expense, exercise TellabsZoll’ self-help rights set forth in Section 8.17(B) of the Prime Lease to perform the repairs that Landlord failed to perform or (b) enforce Landlord's ’s obligations and liabilities under the Prime Lease in a manner reasonably directed by Subtenant, including litigation if necessary. All out of pocket costs and expenses, including, without limitation, attorneys' ’ fees, incurred by Tellabs Zoll in exercising its self-help rights and attempting to enforce Landlord’s obligations and liabilities under the Prime Lease on behalf of Subtenant as aforesaid shall be reimbursed by Subtenant within 10 ten (10) business days of receipt of notice from TellabsZoll, and shall be deemed Rent due and payable under this Sublease. Tellabs Zoll shall not be liable in damages, nor shall Rent xxxxx (unless, and then only to the extent that, rent and other payments actually xxxxx under the Prime Lease with respect to the Premises), for or on account of any failure by Landlord to perform the obligations and duties imposed on it under the Prime Lease. If Tellabs Zoll is reimbursed by Landlord for any costs incurred by Tellabs Zoll in exercising a self-help remedy on Subtenant’s behalf, or if any attorneys’ fees are awarded to Tellabs Zoll in any litigation pursued on Subtenant’s behalf, then the amount reimbursed to Tellabs Zoll shall be passed through to Subtenant to the extent those amounts are actually received by TellabsZoll.
(e) In addition to and not in limitation of any provisions of the Prime Lease, including any and all Rules and Regulations promulgated by the Landlord pursuant to Section 5.4 of the Prime Lease, Subtenant shall abide by all reasonable rules and regulations promulgated by Zoll from time to time of which Subtenant has been given notice, including all rules and regulations prohibiting the smoking of tobacco products in and around the Premises, the Building or elsewhere in the Quorum Office Park.
(f) Nothing contained in this Sublease shall be construed to create privity of estate or contract between Subtenant and Landlord except the agreements of Subtenant in Sections 16 and 17 in favor of Landlord, and then only to the extent set forth in those sections.
(g) Zoll represents and warrants to Subtenant that (i) Zoll has delivered to Subtenant a full, true and complete copy of the Prime Lease (with certain financial information redacted), which is attached hereto as Exhibit A, (ii) the Prime Lease is, as of the date hereof, in full force and effect, (iii) as of the date hereof, to the best of Zoll’s knowledge, no event of default has occurred under the Prime Lease and no event has occurred and is continuing which would constitute an event of default but for the requirement of the giving of notice and/or the expiration of the period of time to cure, and (iv) subject to the terms and conditions set forth in the Prime Lease, Zoll has the right to enter into this Sublease.
Appears in 1 contract
Samples: Sublease (Datawatch Corp)