EXHIBIT 10.2
SUBLEASE
--------
Parties
THIS SUBLEASE, dated as of the 7th day of November, 1996 (this "Sublease")
between Davinci Systems Corporation, a Delaware corporation having an address of
c/o ON Technology Corporation, Xxx Xxxxxxxxx Xxxxxx, 0xx Xxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx 00000 (the "Sublessor") and Northern Telecom Inc., a Delaware
corporation having an address of 0000 Xxxxxxxx Xxxx., Xxxxxxxxxx, Xxxxx 00000
(the "Subtenant").
Recitals
A. Sublessor is tenant under a Lease Agreement dated as of August 9, 1994,
as amended by First Amendment to Lease Agreement dated January 31, 1996
(collectively, the "Main Lease") for certain premises (the "Leased Premises")
containing approximately 33,118 square feet of rentable area of the building
("Building") known as Enterprise One, 000 Xxxxxxx Xxxx., Xxxxxxxxxxx, Xxxxx
Xxxxxxxx, owned by Perimeter Park West Associates Limited Partnership, a North
Carolina limited partnership having an address c/o Lichtin Properties, Inc.,
0000 Xxxxxxxxx Xxxx Xxxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxx Xxxxxxxx (the "Main
Landlord").
B. Sublessor wishes to sublease to Subtenant, and Subtenant wishes to
sublease from Sublessor, the entire Leased Premises outlined in blue on
Exhibit A hereto (the "Subleased Premises") pursuant to the terms set forth
---------
below.
Terms
1. DEMISE AND TERM. Sublessor leases to Subtenant, and Subtenant hereby
---------------
leases from Sublessor, the Subleased Premises. The term of this Sublease (the
"Term") shall commence (the "Commencement Date") on November 1, 1996 and shall
----------------
end ("Expiration Date") on October 31, 1999 (unless sooner terminated as
----------------
provided in this Sublease). This Sublease shall terminate in the event the
Main Lease terminates. Sublessor shall have no liability to Subtenant in the
event the Main Lease is terminated for any reason whatsoever, except only in the
event Sublessor shall have breached the Main Lease and such breach is unrelated
to the failure of Subtenant to fully pay, perform and observe its obligations
hereunder.
2. RENT. (a) Subject to the November Rent Credit and the Use and
----
Occupancy Fee Credit described in Section 2(b) hereinbelow, Subtenant shall pay
to Sublessor (i) fixed rent ("Fixed Rent") in the amount of Twenty-Five Thousand
--------------------
Eight Hundred Four and 44/100 ($25,804.44) per month (based upon $9.35
----------------------------------------------------
1
per square foot of rentable floor area in the Subleased Premises) commencing
December 1, 1996 (for the month of December, 1996) and continuing on the first
(1st) day of each month during the Term (for each subsequent calendar month
during the Term), and (ii) additional rent (including, without limitation,
monthly payments for Taxes, insurance, CAM Expense described in Paragraph 2 of
--------------
the Main Lease ["Pass-Through Costs"]) and all other monetary consideration set
--------------
forth in the Main Lease in the same amount payable by Sublessor to Main Landlord
under the Main Lease with respect to the Subleased Premises (collectively, the
"Additional Rent"). The Fixed Rent and Additional Rent is hereinafter
collectively referred to as the "Rent". Rent shall be paid not later than the
due date thereof under the Main Lease, without notice or demand, and without
deduction, abatement, counterclaim or setoff of any amount or for any reason.
Rent shall be paid to Sublessor in lawful money of the United States at the
address of Sublessor set forth above or to such other person and/or at such
other address as Sublessor may from time to time designate by notice to
Subtenant. No payment by Subtenant or receipt by Sublessor of any less amount
than the amount stipulated to be paid hereunder shall be deemed other than on
account of the earliest stipulated Rent; nor shall any endorsement or statement
on any check or letter be deemed an accord and satisfaction, and Sublessor may
accept any check or payment without prejudice to Sublessor's right to recover
the balance due or to pursue any other remedy available to Sublessor.
(b) Notwithstanding the provisions of Section 2(a) hereinabove, Subtenant
shall (i) not be required to pay any Fixed Rent or Additional Rent for the month
of November, 1996 ("November Rent Credit") and (ii) be entitled to deduct from
Rent the "Use and Occupancy Fee Credit" which is defined in Section 11
hereinbelow. Subtenant shall pay Sublessor, within thirty (30) days of the date
the Main Landlord executes the Landlord Consent (described in Paragraph 31
hereinbelow), the sum of Twenty-Two Thousand Seven Hundred Fifty and 33/100
Dollars ($22,750.33), which represents the December, 1996 Rent payment net of
the Use and Occupancy Fee Credit for said month.
(c) Subtenant shall timely pay all bills and charges for electricity and
other utilities relating to the Subleased Premises, including, without
limitation, those bills and charges for the month of November 1996.
3. SUBORDINATION TO MAIN LEASE. This Sublease is and shall be subject and
---------------------------
subordinate to the Main Lease and to the matters to which the Main Lease is or
shall be subject and subordinate. A copy of the Main Lease has been delivered
to and examined by Subtenant. Subtenant shall, upon the request of Sublessor,
subordinate this Sublease to the lien of any present or future mortgage or deed
of trust upon the Leased Premises
- 2 -
irrespective of the time of execution or the recording of any such mortgage or
deed of trust.
4. MAIN LANDLORD'S RESERVED RIGHTS. Subtenant acknowledges any rights
-------------------------------
specifically reserved by Main Landlord under the Main Lease, and Subtenant
further acknowledges that its possession and use of the Subleased Premises shall
at all times be subject to such rights. Subtenant hereby releases Sublessor from
all liability in connection with Main Landlord's exercise of such rights.
5. INCORPORATION BY REFERENCE. All the terms and conditions of the Main
--------------------------
Lease, to the extent not inconsistent with this Sublease, are incorporated
herein by reference and Subtenant agrees to assume all obligations of Sublessor
under the Main Lease with respect to the Subleased Premises from and after the
date hereof. Without limitation of the foregoing, Subtenant agrees as follows:
(a) The term "Landlord, " as used in the Main Lease shall mean
Sublessor, and the term "Tenant," as used in the Main Lease shall mean
Subtenant.
(b) The time limits contained in the Main Lease (including, without
limitation, those set forth in Paragraph 15 thereof) for the giving of
------------
notice, making of demands or performing of any act, condition or
covenant on the part of the Lessee thereunder, or for the exercise by
the Lessee thereunder of any right, remedy or option, are changed for
the purposes of incorporation by reference by shortening the same in
each instance by three (3) days, so that in each instance Subtenant
shall have three (3) days less time to observe or perform hereunder
than Sublessor has as the Tenant under the Main Lease.
(c) Any non-liability provisions in the Main Lease for the benefit of
the Main Landlord shall be deemed to inure to the benefit of Sublessor
and any other person intended to be benefited by said provision. Any
right of the Main Landlord under the Main Lease of access or inspection
and any right of the Main Landlord under the Main Lease to do work in
the Subleased Premises or in the Building and any other rights of the
Main Landlord under the Main Lease and respective rules and regulations
shall be deemed to inure to the benefit of Sublessor and any other
person intended to be benefited by said provision, for the purpose of
incorporation by reference in this Sublease.
(d) Any rights of Sublessor to terminate the Main Lease provided
therein shall be exercised only by
- 3 -
Sublessor when, in its sole option, those conditions precedent required
for a termination by Sublessor under the terms and conditions of the
Main Lease have occurred.
(e) Subtenant shall not have any of Sublessor's rights in the Main
Lease to exercise any option to expand the Leased Premises or any
option to renew or extend the term of the Main Lease; nor shall the
following paragraphs of the Main Lease apply to this Sublease:
Paragraphs 2(a), 2(b), 2(d), 2(h), 21, and Rider Paragraphs 1, 2 [but
NOT excluding 2(e) and 2(g)] and 18.
---
(f) Subtenant may, at its sole cost and expense, install such
identifying signage as the Main Landlord may, in its discretion,
approve.
6. PERFORMANCE BY SUBLESSOR. In the event of any default by the Main
------------------------
Landlord under the terms of the Main Lease, Subtenant shall give Sublessor and
the Main Landlord written notice thereof. Sublessor shall have no obligations
whatsoever to Subtenant with respect to the Subleased Premises, including,
without limitation, with respect to alteration, repair, maintenance, or
warranties, representations, covenants or agreements of the Main Landlord. Upon
the request of Subtenant, Sublessor shall use its reasonable efforts to cause
the Main Landlord to observe and/or perform the obligations of the Main Landlord
under the Main Lease which relate to the Subleased Premises, and Sublessor shall
have a reasonable time to enforce its rights to cause such observance or
performance in accordance with the terms of the Main Lease after request for
such enforcement has been made by Sublessor; provided, however, that Sublessor
shall not be required to incur any expense or expend any sums to obtain such
enforcement, except to the extent of funds advanced by Subtenant to Sublessor
for such purpose. Subtenant shall not in any event have any rights with respect
to the Subleased Premises greater than Sublessor's rights under the Main Lease
and, notwithstanding any provision to the contrary, as to obligations that
pertain to the Subleased Premises and are contained in this Sublease by the
incorporation by reference of the provisions of the Main Lease, Sublessor shall
not be required to make any payment or perform any obligation, and Sublessor
shall have no liability to Subtenant for any such payment or performance, except
for Sublessor's obligation to use the aforesaid reasonable efforts. Sublessor
shall not be responsible for any failure or interruption, for any reason
whatsoever, of the services or facilities that may be appurtenant to or supplied
at the Building by the Main Landlord under the Main Lease or otherwise,
including, without limitation, heat, air conditioning, water, electricity,
elevator service and cleaning service, if any; and no failure to furnish, or
interruption of, any such
- 4 -
services or facilities shall give rise to any (a) abatement, diminution or
reduction of Subtenant's obligations under this Sublease, (b) constructive
eviction, whether in whole or in part or (c) liability on the part of Sublessor.
Sublessor shall promptly provide Subtenant with a copy of any written notice
received from the Main Landlord that states that (a) Sublessor is in default in
the payment, performance or observance of any provision of the Main Lease, and
(b) Main Landlord intends to terminate the Main Lease as a result thereof.
7. NO BREACH OF MAIN LEASE. Subtenant and Sublessor shall not do, omit to
-----------------------
do, or permit to be done any act or thing which may constitute a breach or
violation of any term, covenant or condition of the Main Lease by the Tenant
thereunder, whether or not such act or thing is permitted under the provisions
of this Sublease.
8. RELEASES. Subtenant and Sublessor hereby release the other and the
--------
Main Landlord or anyone claiming through or under such parties by way of
subrogation or otherwise to the extent that Sublessor and the Main Landlord
released such parties under the Main Lease and/or the Main Landlord and
Sublessor were relieved of liability or responsibility pursuant to the
provisions of the Main Lease, and Subtenant and Sublessor will cause its
insurance carriers to include any clauses or endorsements in favor of each other
and the Main Landlord which Sublessor is required to provide pursuant to the
provisions of the Main Lease.
9. LATE CHARGES. If payment of any Rent shall not have been paid by the
------------
fifteenth (15th) day after the date on which such amount was due and payable:
(a) a charge equal to the amount described in Paragraph 16 of the Main Lease
------------------------------
shall be due and payable by Subtenant, (b) in addition to the aforesaid charge,
a late payment service charge (to cover Sublessor's administrative and overhead
expenses of processing late payments and not as a penalty) equal to $250 shall
be due and payable by Subtenant, and (c) Subtenant shall be liable for
reasonable attorneys' fees incurred by Sublessor by reason of said default by
Subtenant. Said charges are hereinafter referred to as "Late Charges". The
Late Charges for any month shall be payable on the first day of the following
month, and in default of payment of any Late Charges, Sublessor shall have (in
addition to all other remedies) the same rights as provided in this Sublease
(including the provisions incorporated by reference) for nonpayment of Rent.
Nothing in this Section contained and no acceptance of Late Charges by Sublessor
shall be deemed to extend or change the time for payment of Rent.
10. USE. Subtenant shall use and occupy the Subleased Premises for the
---
use permitted under the Main Lease and for no
- 5 -
other purpose. Subtenant shall comply with the certificate of occupancy relating
to the Subleased Premises.
11. SUBLESSOR USE AND OCCUPANCY OF RETAINED AREAS. Sublessor hereby
---------------------------------------------
reserves the right to exclusively use and occupy the portions of the Subleased
Premises designated as "Retained Area A" and "Retained Area B" (collectively,
"Retained Areas") and "Telephone Room" on Exhibit A-1 attached hereto and
-----------
made a part hereof. Sublessor shall vacate: (i) Retained Area A by no later than
midnight, November 30, 1996 and (ii) Retained Area B and the Telephone Room by
-----------------
no later than midnight, March 31, 1997; provided, however, Sublessor shall have
--------------
the option to terminate the use and occupancy of Retained Area B at any time
prior thereto, at which time Sublessor's right to use the Telephone Room shall
also terminate. Retained Area B shall be deemed to constitute 26.57% of the
Subleased Premises. Since the Retained Areas shall not be physically separated
from the remainder of the Subleased Premises, Sublessor and Subtenant hereby
agree to cooperate reasonably with the other in sharing the use of corridors and
other areas and facilities in the Subleased Premises necessary and desirable to
be used in connection with each party's use of the portions of the Subleased
Premises which it occupies. Sublessor shall have the right of access through the
Subleased Premises to use the Retained Areas, including, without limitation, the
"Telephone Room" serving the Retained Areas. If any HVAC thermostats, electric
panels or other utility facilities serving either the Subleased Premises or the
Retained Areas are located in the other said spaces, then the party in whose
space same are located shall provide reasonable access to the other party for
use of same. If any utility or other facility serves or is designed to serve
both the Subleased Premises and the Retained Areas, the parties will cooperate
with each other reasonably to share such facility for the purpose intended and
shall permit access to the respective space in connection therewith. All of the
foregoing shared rights shall be subject to such reasonable security procedures
as Subtenant and Sublessor shall provide to each other. Sublessor may, at its
option, permit employees of its parent corporation, ON Technology Corporation
("ON"), to use and occupy the Retained Areas. For so long as Sublessor (and/or
ON) uses the Retained Areas, Sublessor (and/or ON) shall have the right to use
the common areas and facilities of the Building ("Common Areas"), including,
without limitation, the parking areas appurtenant thereto.
Sublessor shall pay Subtenant, within twenty (20) days of Sublessor's
receipt of an invoice from Subtenant, an equitable portion of the electric bills
for the Subleased Premises for each day Sublessor (or ON) occupies and uses the
Retained Areas. Sublessor's portion of such bills shall be based on the actual
square footage of the Retained Areas used and occupied by Sublessor (and/or ON)
during the applicable billing period. In consideration of the November Rent
Credit, Sublessor (and/or ON)
- 6 -
shall be entitled to use and occupy Retained Area A and the Common Areas without
any fee, rent or other compensation being payable to Subtenant. As full
consideration for Sublessor's (and/or ON's) use of Retained Area B and the
Common Areas, Subtenant shall be entitled to a credit ("Use and Occupancy Fee
Credit") equal to the following product for each day that Sublessor (or ON)
occupies and uses the Retained Areas:
Fixed Rent plus Pass-Through Costs X 26.57%
----------------------------------
Number of days in the applicable month
If Sublessor uses and occupies the Retained Areas for less than a full calendar
month, Subtenant shall pay Sublessor any excess amount of the Use and Occupancy
Fee Credit applied by Subtenant towards Rent.
Subtenant does not desire to pay for the services described in the HVAC PM
Inspection and Service Contract dated August 30, 1996 between the Main Landlord
and Sublessor ("HVAC Contract"). Therefore, Sublessor shall cancel the HVAC
Contract effective as of November 30, 1996; provided, however, Subtenant shall
be responsible for complying with Paragraph 4(c) of the Main Lease.
--------------------------------
12. CONDITION OF SUBLEASED PREMISES. Subtenant is subleasing the
-------------------------------
Subleased Premises from Sublessor "AS IS", without representation or warranty,
express or implied, of any kind, and Sublessor shall have no obligation to
furnish, render or supply any work, labor, services, material, fixtures,
equipment or decorations to make the Subleased Premises ready for Subtenant's
occupancy. Subtenant shall be conclusively presumed to have accepted the
Subleased Premises in the condition existing on the date Subtenant first takes
possession and to have waived all claims against Sublessor relating to such
condition.
13. NOTICES. All notices, consents, approvals, demands, requests and
-------
other communications made or required to be given pursuant hereto shall be in
writing and shall be delivered in hand, mailed by United States first class
mail, postage prepaid, sent by overnight courier (e.g., Federal Express or
similar courier), or sent by telegraph, telecopy, facsimile or telex and
confirmed by delivery via courier or postal service, addressed as follows:
If to Sublessor, to: Davinci Systems Corporation
c/o ON Technology Corporation
Xxx Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxx
Chief Financial Officer
- 7 -
with a copy to: Xxxxxx X. Xxxxx, Esq.
Xxxxxxx Xxxxxx & Green, P.C.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
If to Subtenant, to: Northern Telecom Inc.
0000 Xxxxxxxx Xxxx., XXX X-000
Xxxxxxxxxx, XX 00000
Attn: Real Estate Department
(000) 000-0000
with a copy to: Northern Telecom, Inc.
000 Xxxxxx Xxx
Xxxxxxxxx, XX 00000
Attn: Legal Dept.
or to such other address for notice as either party shall last have furnished in
writing to the party giving the notice. Any such notice or demand shall be
deemed to have been duly given or made and to have become effective (i) if
delivered by hand, overnight courier or facsimile to a responsible officer of
the party to which it is directed, at the time of the receipt thereof by such
officer or the sending of such facsimile and (ii) if sent by first-class mail,
postage prepaid, on the third business day following the mailing thereof.
14. ASSIGNMENT AND SUBLETTING. Subtenant shall not, by operation of law
-------------------------
or otherwise, assign, convey, mortgage, pledge, encumber or in any other manner
transfer (whether voluntary or otherwise) this Sublease or any interest therein,
or sublet the Subleased Premises or any part thereof or grant any concession or
license or otherwise permit the use or occupancy of all or part thereof
(collectively, "Transfer") without the written consent of Sublessor, which
consent may be withheld in Sublessor's sole and absolute discretion. If
Sublessor grants its consent, Subtenant shall not undertake a Transfer without
first also complying with the provisions of Paragraph 9 of the Main Lease.
-----------------------------
Obtaining the consent of the Main Landlord required under the Main Lease shall
be the obligation of the Subtenant and Subtenant shall hold Sublessor harmless
from any failure by the Main Landlord to grant its consent. Notwithstanding the
foregoing to the contrary, Subtenant shall have the same rights as Sublessor set
forth in Rider Paragraph 9 of the Main Lease; provided, notwithstanding any
-----------------------------------
Transfer described therein, Subtenant shall remain primarily liable hereunder.
15. INSURANCE AND INDEMNIFICATION. Subtenant and Sublessor shall maintain
-----------------------------
throughout the term of this Sublease broad form comprehensive general public
liability and property damage insurance in the form, manner and amounts required
by Paragraph
---------
- 8 -
11 of the Main Lease, with Sublessor, Subtenant and Main Landlord named as
--------------------
additional insureds on each policy. Such insurance may be part of a "blanket"
policy. Subtenant shall deliver to Sublessor a certificate of such coverage
prior to the Commencement Date. Subtenant shall procure and pay for renewals of
such insurance from time to time before the expiration thereof, and Subtenant
shall deliver to Sublessor such renewal certificate within fifteen (15) days of
Sublessor's request. All such policies shall be issued by companies of
recognized responsibility whose policies are valid in the State of North
-----
Carolina and all such policies shall contain a provision whereby the same
--------
cannot be cancelled or modified unless Sublessor is given at least thirty (30)
days prior written notice of such cancellation or modification. Subtenant's
insurance shall be primary and Sublessor's insurance noncontributing. Without
regard to any insurance coverage, and to the fullest extent permitted by
applicable law, Subtenant hereby indemnifies and holds harmless Sublessor, ON,
their employees, agents and contractors from any breach of this Sublease,
violations of law and any loss, liability, claims, suits, costs, damages,
expenses (including, without limitation, reasonable attorneys' fees), both real
and alleged, arising out of any damage or injury to persons or tangible property
to the extent caused by the acts, omissions, or willful misconduct of Subtenant,
its employees, agents, contractors or invitees. Without regard to any insurance
coverage, and to the fullest extent permitted by applicable law, Sublessor
hereby indemnifies and holds harmless Subtenant, its employees, agents and
contractors from any loss, liability, claims, suits, costs, damages, expenses
(including, without limitation, reasonable attorneys' fees), both real and
alleged, arising out of any damage or injury to persons or tangible property to
the extent caused by the acts, omissions, or willful misconduct of Sublessor,
its employees, agents, contractors or invitees.
16. CASUALTY. If the Subleased Premises are damaged by fire or other
--------
casualty, and Main Landlord, pursuant to the terms of the Main Lease, shall
elect to terminate the Main Lease, this Sublease shall cease and terminate on
the date of notice of such election, and Rent shall be apportioned to the date
of such termination. In all other cases of casualty, if the damage has rendered
the Subleased Premises untenantable, in whole or in part, there shall be an
apportionment of the Rent in the same manner as provided in the Main Lease. In
no event shall Sublessor have any obligation to repair any portion of the
Subleased Premises.
17. CONDEMNATION. If the Subleased Premises, or a material part thereof,
------------
shall be condemned or taken in any manner for any public or quasi-public use, at
Sublessor's option this Sublease shall forthwith terminate on the date of such
taking. Subtenant shall have no right to share in any condemnation award, but
shall
- 9 -
execute any and all documents that may be reasonably required to facilitate
collection by Sublessor and/or Main Landlord of any and all such awards;
provided, however, Subtenant may pursue a separate award for its relocation
expenses.
18. ESTOPPEL CERTIFICATES. Subtenant shall, within fifteen (15) days
---------------------
after each and every request by Sublessor, execute, acknowledge and deliver to
Sublessor, or any other party designated by Sublessor, a statement in writing
(a) certifying that this Sublease is unmodified and in full force and effect (or
if there have been modifications, that the same is in full force and effect as
modified, and stating the modifications), (b) specifying the dates to which the
Rent has been paid, (c) stating whether or not, to the best knowledge of
Subtenant, Sublessor is in default in performance or observance of its
obligations under this Sublease, and, if so, specifying each such default, and
(d) such other information as Sublessor may reasonably request. Any such
statement delivered pursuant to this Section may be relied upon by Main
Landlord, any prospective assignee or transferee of the leasehold estate under
the Main Lease, or any other person designated by Sublessor.
19. ALTERATIONS. Subtenant shall not make or cause, suffer or permit the
-----------
making of any alteration, addition, change, replacement, installation or
addition (collectively "Alterations") in or to the Subleased Premises without
first obtaining the prior written consent of Sublessor in each instance.
Sublessor shall not unreasonably withhold or delay its consent, but any such
consent shall be deemed to be conditioned upon Sublessor having no liability to
anyone for, and being indemnified from, the Alterations or their removal. If
Sublessor grants its consent, Subtenant shall then comply with the provisions of
Article 5 of the Main Lease. Subtenant understands and agrees that the Main
---------------------------
Landlord may withhold its consent to proposed Alterations. In the event that the
Main Landlord (or any designee of the Main Landlord) shall succeed to
Sublessor's interest under this Sublease (whether by reason of a termination of
the Main Lease or other exercise of the Main Landlord's rights under the Main
Lease), then the foregoing provisions of this Section 19 shall be of no force
and effect, and Subtenant's rights hereunder shall instead be governed by the
provisions of Article 5 of the Main Lease.
---------------------------
20. BROKERAGE. Sublessor and Subtenant each warrants and represents
---------
that it has dealt with no broker with respect to this Sublease other than
Xxxxxxx & Company, Xxxxxxx & Company, Xxxxxxx Xxxxx Xxxxx Xxxxxxx and XxXxxx &
------------------ ------------------ --------------------------- --------
Xxxx (the "Brokers") and that there are no brokerage or similar fees or
----
commissions due in connection with this Sublease other than the Brokers.
Sublessor shall pay, within thirty (30) days of the date of the Main Landlord's
execution of the Landlord Consent, a total Brokers fee of $54,189.33, of which
$36,126.22, in the aggregate, shall be
- 10 -
payable to Subtenant's brokers (Xxxxxxx & Company and Xxxxxxx & Company) and the
balance of $18,063.11, in the aggregate, shall be payable to Xxxxxxx Xxxxx Xxxxx
Xxxxxxx and XxXxxx & Xxxx. Sublessor and Subtenant each agrees to indemnify and
hold harmless the other and the Main Landlord from and against all claims for
brokerage commissions on account of this Sublease by any person who establishes
by a court action a right to such brokerage commission arising out of dealings
with the party from whom indemnification is sought, and for all costs and
expenses, including reasonable attorneys' fees, incurred in connection with any
such claims. Both parties shall have the right to participate in the defense of
any such action.
21. SUBLEASE FEE. Subtenant shall pay Sublessor the sum of
------------
Twenty Thousand ($20,000) Dollars ("Sublease Fee") which shall be applied toward
the Brokers' fees and other costs and expenses incurred by Sublessor in
connection with this Sublease. The Sublease Fee shall be due and payable within
thirty (30) days of the date the Main Landlord executes the Landlord Consent
(described in Paragraph 31 hereinbelow). Subtenant acknowledges and agrees that
the Sublease Fee is not refundable in whole or in part for any reason
whatsoever.
22. WAIVER OF JURY TRIAL AND RIGHT TO COUNTERCLAIM.
----------------------------------------------
Sublessor and Subtenant hereby waive all right to trial by jury in any summary
or other action, proceeding or counterclaim arising out of or in any way
connected with this Sublease, the relationship of Sublessor and Subtenant, the
Subleased Premises and the use and occupancy thereof, and any claim of injury or
damages. Subtenant also hereby waives all right to assert or interpose a
counterclaim (unless required by applicable law) in any summary proceeding or
other action or proceeding to recover or obtain possession of the Subleased
Premises.
23. NO WAIVER. The failure of either party to insist in any one
---------
or more cases upon the strict performance or observance of any obligation of the
other party hereunder or to exercise any right or option contained herein shall
not be construed as a waiver or relinquishment for the future of any such
obligation of the bound party or any right or option of the benefitted party.
Sublessor's receipt and acceptance of Rent, or Sublessor's acceptance of
performance of any other obligation by Subtenant, with knowledge of Subtenant's
breach of any provision of this Sublease, shall not be deemed a waiver of such
breach. No waiver by either party of any term, covenant or condition of this
Sublease shall be deemed to have been made unless expressed in writing and
signed by the party to be bound by such waiver.
24. COMPLETE AGREEMENT. There are no representations,
------------------
agreements, arrangements or understandings, oral or written, between the parties
relating to the subject matter of this Sublease which are not fully expressed in
this Sublease. This
- 11 -
Sublease cannot be changed or terminated orally or in any manner other than by a
written agreement executed by both parties.
25. SUCCESSORS AND ASSIGNS. The provisions of this Sublease,
----------------------
except as herein otherwise specifically provided, shall extend to, bind and
inure to the benefit of the parties hereto and their respective personal
representatives, heirs, successors and permitted assigns.
26. INTERPRETATION. This Sublease shall be governed by and
--------------
construed in accordance with the laws of the State of North Carolina. If any
----- --------
provision of this Sublease or the application thereof to any person or
circumstance shall, for any reason and to any extent, be invalid or
unenforceable, the remainder of this Sublease and the application of that
provision to other persons or circumstances shall not be affected but rather
shall be enforced to the extent permitted by law. The captions, headings and
titles, if any, in this Sublease are solely for convenience of reference and
shall not affect its interpretation. This Sublease shall be construed without
regard to any presumption or other rule requiring construction against the party
causing this Sublease to be drafted. If any words or phrases in this Sublease
shall have been stricken out or otherwise eliminated whether or not any other
words or phrases have been added, this Sublease shall be construed as if the
words or phrases so stricken out or otherwise eliminated were never included in
this Sublease and no implication or inference shall be drawn from the fact that
said words or phrases were so stricken out or otherwise eliminated. Each
covenant, agreement, obligations or other provision of this Sublease shall be
deemed and construed as a separate and independent covenant of the party bound
by, undertaking or making same, not dependent on any other provision of this
Sublease unless otherwise expressly provided. All terms and words used in this
Sublease, regardless of the number or gender in which they are used, shall be
deemed to include any other number and any other gender as the context may
require. The word "person" as used in this Sublease shall mean a natural person
or persons, a partnership, a corporation, a limited liability company, or any
other form of business or legal association or entity.
27. EXCULPATION. Sublessor shall have no liability whatsoever
-----------
for any act or omission to act, by the Main Landlord or for the failure by Main
Landlord to perform any obligation under the Main Lease.
28. HOLDOVER. If Subtenant shall hold over possession of the
--------
Subleased Premises after the end of the Term hereof, Subtenant shall be deemed
to be occupying as a tenant-at-sufferance. In such event, Subtenant shall (i)
indemnify and hold harmless Sublessor from and against all direct and
consequential damages suffered or incurred by Sublessor pursuant to claims of
the Main Landlord and (ii) pay Sublessor 150% of the Rent during the
- 12 -
period of such occupancy. The provisions of this Section 28 shall not constitute
a waiver by Sublessor of any re-entry rights of Sublessor available under this
Sublease or by law.
29. INDEMNITIES. All of Sublessor's and Subtenant's indemnities
-----------
described and/or incorporated herein shall survive the expiration or earlier
termination of this Sublease.
30. ATTORNEYS' FEES. In the event an action is commenced to
---------------
enforce or interpret this Sublease, the prevailing party shall recover
reasonable attorneys' fees and costs as provided in this Sublease, or as awarded
by the court in which the action is pending, or as awarded by any other court of
competent jurisdiction in an action commenced for such purpose.
31. MAIN LANDLORD'S CONSENT. This Sublease shall not be
-----------------------
effective unless and until Main Landlord executes and delivers a written consent
hereto ("Landlord Consent") . In the event such Landlord Consent shall not have
been received on or before November 6, 1996, this Sublease shall terminate, be
----------------
null and void and of no force or effect unless Sublessor and Subtenant otherwise
agree. Sublessor may, at its option, seek to have the Main Landlord enter into a
direct lease with Subtenant on the same material terms as are set forth herein
("Direct Lease") . If Sublessor exercises such option, Subtenant agrees to
negotiate the Direct Lease in good faith. Upon the execution of the Direct
Lease, this Sublease shall terminate, be null and void and of no force or
effect, provided, however, the provisions of Paragraph 15 hereinabove shall
survive such termination.
[END OF PAGE]
- 13 -
IN WITNESS WHEREOF, Sublessor and Subtenant have hereunder
executed this Sublease as of the day and year first above written.
DAVINCI SYSTEMS CORPORATION
By: /s/ [SIGNATURE APPEARS HERE]
------------------------------------
NORTHERN TELECOM INC.
By: /s/ [SIGNATURE APPEARS HERE] 11/7/96
------------------------------------
- 14 -
The undersigned hereby consents to the foregoing Sublease dated
as of November 7, 1996 by and between Davinci Systems Corporation and Northern
Telecom Inc.
PERIMETER PARK WEST ASSOCIATES
LIMITED PARTNERSHIP
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Xxxxxx X. Xxxxxxx
General Partner
Dated: As of November 8, 1996
[LICHTIN LETTERHEAD APPEARS HERE]
November 12, 1996
Via Facsimile
Xx. Xxxxxx X. Xxxxx
Xxxxxxx Xxxxxx & Green, P.C.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
RE: Perimeter Park West Associates Limited Partnership ("Landlord") sublease
consent between DaVinci Systems Corporation ("DaVinci") and Northern
Telecom, Inc. ("Nortel"), 000 Xxxxxxx Xxxxxxxxx, Xxxxxxxxxxx, Xxxxx
Xxxxxxxx
Dear Andy:
On behalf of Landlord, I have attached a single page consent statement signed by
Xxxxxx X. Xxxxxxx, General Partner to Landlord, which acknowledges Landlord's
consent of the Sublease between DaVinci and Nortel at the above referenced
Premises.
If I can be of further assistance to you, please feel free to contact me at
(000) 000-0000.
Best regards
/s/ Xxxx Xxxxxxx
Xxxx Xxxxxxx
Vice President
Enclosure (as stated)
cc: Xxxxx Xxxx (with copy of enclosure and Sublease) file
EXHIBIT A
---------
Subleased Premises
EXHIBIT "A"
[MAP OF ENTERPRISE CENTER APPEARS HERE]
EXHIBIT A-1
-----------
Retained Areas
- 16 -
EXHIBIT "A"-1
33,118 Sq. Ft.
Enterprise Center l
Morrisville, NC
[MAP APPEARS HERE]
