SUBLEASE
EXHIBIT 99.2
THIS
SUBLEASE
(the
“Sublease”)
between Tellabs Operations, Inc., a Delaware corporation (“Tellabs”),
and
Datawatch Corporation, a Delaware corporation (“Subtenant”),
is
dated September 28, 2005.
A. Tellabs,
as tenant, and Boston Properties Limited Partnership (“Landlord”),
as
landlord, executed a Lease (the “Original
Lease”)
on
February 17, 2000 under which Landlord leases to Tellabs the building commonly
known as Building One, Quorum Office Park, 000 Xxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxxxxxxx (the “Building”)
consisting of approximately 129,959 square feet of rentable area (the
“Prime
Lease Space”),
for a
term ending on June 30, 2011, unless sooner terminated.
B. On
February 28, 2001, Tellabs and Landlord entered into a First Amendment to
Lease
(the “First
Amendment”)
to
establish the commencement date under the Original Lease. The Original Lease
and
the First Amendment are referred to collectively as the “Prime
Lease”.
A copy
of the Prime Lease (with certain financial information redacted) is attached
to
this Sublease as Exhibit
A
and,
except as set forth in this Sublease, incorporated into this
Sublease.
C. Subtenant
desires to sublease from Tellabs, and Tellabs desires to sublease to Subtenant,
approximately 14,683 rentable square feet of the Prime Lease Space on the
second
floor of the Building, as depicted on Exhibit
B
(the
"Premises"),
all
upon the terms and subject to the conditions and provisions of this
Sublease.
In
consideration of the mutual covenants and promises contained in this Sublease
and other good and valuable consideration, the receipt and sufficiency of
which
the parties acknowledge, Tellabs and Subtenant agree as follows:
1. Sublease.
Subject
to Section 5, Tellabs subleases to Subtenant, and Subtenant subleases from
Tellabs, the Premises upon the terms and conditions set forth in this Sublease.
In addition, subject to the terms of the Prime Lease and this Sublease, to
the
extent that the Prime Lease grants the right to Tellabs, Subtenant shall
have
the non-exclusive right to use in common with use by other tenants and occupants
of Quorum Office Park (a) the common driveways and walkways necessary for
access
to the Building, (b) the entrances, lobbies, stairs, passenger elevators,
and
corridors necessary to access the Premises, (c) the loading docks and freight
elevators in the Building, (d) the common toilets on the second floor of
the
Building, (e) the heating, air conditioning, plumbing, electrical, emergency
life safety, and other mechanical systems and equipment serving the Premises,
and (f) any other common areas and facilities as Tellabs may designate in
writing to Subtenant from time to time.
2. Use.
Subtenant may use the Premises for those purposes permitted under the Prime
Lease and for no other purpose.
3. Term.
The
term
of this Sublease (the “Term”)
will
commence on the date that Tellabs and Subtenant each receives a fully-executed
counterpart of Landlord’s Consent (defined below) (the “Commencement
Date”)
and,
unless sooner terminated pursuant to the provisions of this Sublease, will
expire on the earlier of June 29, 2011 or the prior termination of the Prime
Lease. No later than March 1, 2006, Tellabs and Subtenant shall confirm in
writing the Commencement Date and the Rent Commencement Date. In the event
of
any dispute concerning the Commencement Date or the Rent Commencement Date,
Subtenant shall pay Rent based on the Rent Commencement Date determined by
Tellabs, subject to adjustment between the parties after the dispute is
resolved.
4. Possession.
At
any
time after the Commencement Date and receipt of the Letter of Credit (defined
below) by Tellabs, Subtenant may take possession of the Premises to improve
and
fixture the Premises (“Subtenant
Work”).
Subtenant's Work must be in accordance with plans and specifications approved
by
Landlord and Tellabs and the requirements of the Prime Lease and this Sublease.
Tellabs will not unreasonably withhold or delay its approval. If Subtenant
takes
possession of the Premises before the Commencement Date, Subtenant will be
bound
by all terms and provisions of this Sublease and the Prime Lease, except
those
requiring the payment of Rent.
5. Consent
of Landlord.
This
Sublease and the obligations of the parties under this Sublease (including
Subtenant’s Work) are conditioned upon Tellabs obtaining and delivering to
Subtenant on or before October
28, 2005, Landlord's written consent to this Sublease (“Landlord's
Consent”).
Tellabs
and Subtenant will cooperate to obtain Landlord’s consent (and Landlord agrees
to request Landlord’s Consent within 3 business days after receipt of a
fully-executed copy of the Lease), but Tellabs' inability to obtain Landlord's
Consent is not a default under this Sublease.
Subtenant will promptly deliver to Tellabs any information reasonably requested
by Landlord (in connection with Landlord's approval of this Sublease) with
respect to the nature and operation of Subtenant's business or the financial
condition of Subtenant. If
Tellabs does not get Landlord's Consent on or before October 28, 2005, then
this
Sublease will be void and of no force or effect.
6. Proportionate
Share.
For
purposes of this Sublease, Subtenant's “Proportionate
Share”
is the
percentage determined from time to time by dividing the rentable square feet
of
the Premises by the rentable square feet of the Building, which the parties
agree is 11.3%.
7. Rent.
Beginning on the later of January 1, 2006 and the date that is 14 days after
Subtenant’s Work is substantially completed, but in no case later than February
1, 2006 (the “Rent
Commencement Date”),
and
subject to the abatement set forth in Section 7.C., Subtenant will pay to
Tellabs at One Tellabs Center, 0000 Xxxx Xxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx
00000,
Attn: Real Estate, M.S. 448, or at another place that Tellabs designates
in a
written notice to Subtenant, the following amounts at the following times,
without notice, demand, set-off, or deduction, all of which (together with
all
other amounts that Subtenant owes to Tellabs) is "Rent" under this
Sublease:
A. Base
Rent.
Beginning
on the Rent Commencement Date and throughout the Term, Subtenant will pay
rent
(“Base
Rent”)
to
Tellabs monthly in advance, no later than 5 days before the first day of
each
calendar month as set forth below. If the Rent Commencement Date
2
is
a day
other than the first day of a month, or ends on a day other than the last
day of
a month, Base Rent and Additional Rent will be prorated accordingly. Subject
to
the abatement set forth in Section 7.C., Base Rent will be as
follows:
B. Additional
Rent.
(i) Beginning
on the Rent Commencement Date and throughout the Term (but subject to the
abatement set forth in Section 7.C.), Subtenant will pay Subtenant's
Proportionate Share of Landlord’s Operating Expenses (as defined in the Prime
Lease) and Landlord’s Tax Expenses (as defined in the Prime Lease) due from
Tellabs to Landlord under the Prime Lease. Subtenant will pay the amounts,
or
estimated amounts as determined by Landlord in accordance with Section 2.6
of
the Prime Lease to Tellabs at the time it pays Base Rent to Tellabs. If Tellabs
undertakes direct responsibility for making a payment or providing a service
that would otherwise be included in Landlord’s Operating Expenses or Landlord’s
Tax Expenses, then those amounts shall be included in Landlord’s Operating
Expenses and Landlord’s Tax Expenses for purposes of this Section 7.B., but in
no event will Subtenant be responsible for making duplicate payments for
the
same service.
(ii) Subtenant
will obtain directly from the service provider all required utilities and
services not provided by Landlord under the Prime Lease and, beginning on
the
Commencement Date, will pay the cost of those services directly to the service
providers. Subtenant shall install (or cause to be installed),
3
at
its
cost, separate meters (or sub-meters if the applicable utility company does
not
permit separate meters) for those utilities.
(iii) Subtenant
will pay to Tellabs all other amounts payable by Tellabs under the Prime
Lease
that are attributable to the Premises (as distinguished from the entire Prime
Lease Space) or attributable to Subtenant, its agents, employees, customers,
or
invitees. By way of example and not by way of limitation, charges by Landlord
for furnishing air conditioning or heating to the Premises at times in addition
to those certain times specified in the Prime Lease, costs incurred by Landlord
in repairing damage to the Building caused by Subtenant, increased insurance
premiums due as a result of Subtenant's use of the Premises, charges imposed
in
connection with obtaining Landlord's consent to this Sublease, and amounts
expended or incurred by Landlord on account of any default by Subtenant which
gives rise to a default under the Prime Lease would be amounts payable by
Subtenant pursuant to this Section 7.B(iii).
(iv) Each
amount due under this Section 7.B, and each other amount payable by Subtenant
under this Sublease, unless a date for payment is provided for elsewhere
in
this Sublease,
is due and payable on the earlier of the 10th
day
after the date on which Landlord or Tellabs notifies Subtenant of the amount
due
and the date on which an amount is due under the Prime Lease. Subtenant will
pay
Landlord on the due dates for services requested by Subtenant that are billed
by
Landlord directly to Subtenant rather than Tellabs.
C. Abatement.
Unless
Subtenant defaults under this Sublease, Base Rent and the Additional Rent
required under Section 7.B(i) will xxxxx for 12 months beginning on the Rent
Commencement Date. If Subtenant defaults at any time during the abatement,
the
abatement ends and Subtenant will pay full Rent beginning the date of the
default. If the Sublease terminates before June 29, 2011 because Subtenant
has
defaulted, Subtenant will reimburse Tellabs the full amount of the abatement.
Despite the foregoing, (i) if Subtenant has paid all Rent owed through the
date
of the termination, then Subtenant shall reimburse Tellabs for only the
unamortized portion of the abatement, using a straight-line amortization
over
the Term and (ii) if Tellabs recovers from Subtenant the full amount of Rent
(other than the Rent abated under this Section 7.C.) due under this Sublease
for
the full Term, through judgment or otherwise, Tellabs shall not be entitled
to
recover abated Rent..
8. Late
Charges.
Unpaid
Rent will bear interest from the date due until paid at an annual rate of
the
lesser of 12% and the maximum rate permissible by law.
9. Condition
of Premises; Subtenant’s Work; Surrender.
(a) Tellabs
has made no promise to alter, remodel, or improve the Premises and no
representation respecting the condition of the Premises to Subtenant. Subtenant
has examined the Premises, is fully familiar with its physical condition,
and
accepts the Premises in its then present condition “AS
IS”and
“WHERE
IS”
as of
the date of this Sublease with no express or implied warranties.
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(b) All
of
Subtenant's Work will be completed in a good and workmanlike manner and in
accordance with all applicable laws and the Prime Lease. Tellabs will not
charge
Subtenant a supervisory fee or a fee for overhead associated with Subtenant's
Work, but Subtenant must reimburse Landlord for all of Landlord's reasonable
out
of pocket charges associated with architectural review and consultants necessary
to evaluate Subtenant's Work.
(c) Tellabs
will pay to Subtenant $139,488.50, as an allowance to Subtenant for Subtenant’s
Work (the "Allowance").
If
the cost of Subtenant’s Work exceeds the Allowance, Subtenant will pay the
excess cost. Tellabs
will pay the Allowance to Subtenant in draws within 30 days after Subtenant
delivers a written request to Tellabs. Subtenant shall not request, and Tellabs
shall not be obligated to make, more than one payment in any 30 day period.
It
shall be a condition precedent to Tellabs obligation to make a payment of
the
Allowance that Tellabs receive (i) original lien waivers and affidavits (and,
with respect to final payments, final and unconditional original lien waivers
and affidavits), in a form reasonably acceptable to Landlord and Tellabs,
from
Subtenant’s contractor and all subcontractors, suppliers, materialmen, and other
parties who performed labor at, or supplied materials to, the Premises in
connection with Subtenant’s Work showing that all of those parties have been
compensated in full; (ii) written notice from Subtenant’s contractor and
architect (or other evidence reasonably satisfactory to Landlord and Tellabs)
that the portion of Subtenant’s Work applicable to the requested draw and all
prior draws has been completed (including, with respect to the final payment,
completion of any punch list items); and (iii) with respect to the final
payment, to the extent customarily issued by the municipal or county
governmental authorities, a copy of the certificate of occupancy for the
Premises issued by the appropriate governmental authorities. If, at any time
Tellabs is prepared to pay a portion of the Allowance, Subtenant owes Tellabs
any amounts under this Sublease, Tellabs may deduct those amounts from the
Allowance. If
the
Term ends before June 29, 2011 because subtenant has defaulted, Subtenant
will
pay Tellabs, within 10 days after the termination, the unamortized portion
of
the Allowance, using a straight-line amortization over the Term.
(d) Subtenant
will not permit any mechanic’s liens to be filed against the Premises for any
work performed, materials furnished, or obligation incurred by or at the
request
of Subtenant. Subtenant
agrees to indemnify Tellabs against all losses, liabilities, costs, and expenses
(including reasonable attorneys' fees) arising out of or resulting from a
mechanic's lien being filed against the Premises, the Prime Lease Space,
or the
Building as a result of work by Subtenant. If a lien is filed, then Subtenant
will, within 30 days after Tellabs has delivered notice of the lien to
Subtenant, either pay the amount of the lien or diligently contest the lien
and
deliver to Tellabs a bond or other security reasonably satisfactory to Tellabs.
If Subtenant fails to timely take either action, then Tellabs may pay the
lien
claim, and any amounts paid will be due from Subtenant to Tellabs within
10 days
after demand.
(e) Upon
the
expiration of the Term, or upon any earlier termination of the Term or of
Subtenant's right to possession, Subtenant will remove all trade fixtures
and
personal property and surrender the Premises broom-clean and in at least
as good
condition as at the date Subtenant took possession. Subtenant will remove
all
alterations,
5
additions,
and improvements that Subtenant installs or constructs and that Landlord
would
require Tellabs to remove at the end of the term of the Prime Lease. Subtenant
will repair all damage caused by its removal of its trade fixtures, personal
property, alterations, additions, and improvements. The terms of this Section
9(e) will survive the expiration or earlier termination of this Sublease.
If
Tellabs is required to remove any alterations, additions, or improvements
performed by Tellabs before the Commencement Date, then Subtenant shall permit
Tellabs to enter the Premises for 30 days before the expiration of this Sublease
for the purpose of removing its alterations, additions, and improvements
(without affecting Subtenant’s obligation to remove Subtenant’s alterations,
additions, and improvements) and restoring the Premises as required under
the
Prime Lease.
10. 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
6
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
7
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
8
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.
11. Subtenant
Signage.
Subject
to obtaining Landlord’s consent as required under the Prime Lease, Subtenant
shall have the right to place identification signage at the entrance to the
Premises and to be identified in the directory of the Building and on the
monument sign for the Building. All of Subtenant’s signage will be subject to
Landlord’s consent and will be maintained by Subtenant at its cost in accordance
with all laws and legal requirements. Subtenant will pay all costs relating
to
its signage, including, without limitation, costs to install (except that
Subtenant may allocate part of the Allowance to the cost of installing its
signs), maintain, and remove its signage on the expiration or earlier
termination of this Sublease. At the end of the Term, Subtenant will remove
all
signs and repair all damage to the Premises or the Building caused by the
signs
or the removal of the signs.
12. Parking
Spaces.
Subject
to Tellabs' right to parking spaces pursuant to Section 2.2.1 of the Prime
Lease, Subtenant shall have the right to use its Proportionate Share of the
parking spaces that Landlord provides to Tellabs, which is currently 4 spaces
per 1,000 rentable square feet of the Premises (resulting in a total of 59
parking spaces).
13. Default.
(a) Upon
the
happening of any of the following, Subtenant will be in default under this
Sublease and Tellabs may exercise, without limitation of any other rights
and
remedies available to it under this Sublease or at law or in equity, any
and all
rights and remedies of Landlord set forth in the Prime Lease in the event
of a
default by Tellabs under the Prime Lease:
(i) Subtenant
fails to pay any Rent when due, and the failure continues for 5 days after
receipt of written notice from Tellabs to Subtenant, except that if Subtenant
fails to pay rent when due twice during any consecutive 12 month
9
period,
then the next time or times that Subtenant fails to pay Rent when due during
that 12 month period, Subtenant shall be in default whether or not Tellabs
notifies Subtenant of the failure;
(ii) Subtenant
fails to perform or observe any other covenant or agreement set forth in
this
Sublease for 20 days after written notice from Tellabs, unless compliance
is not
possible within 20 days and Subtenant began to comply within 20 days and
diligently pursues it to completion; or
(iii) any
other
event occurs that involves Subtenant or the Premises and that would constitute
a
default under the Prime Lease if it involved Tellabs or the Prime Lease Space,
except for a default under Section 7.1(A)(i) of the Prime Lease for Tellabs’
failure to pay rent under the Prime Lease when due;
(b) If
Subtenant fails or refuses to timely make any payment or perform any covenant
or
agreement under this Sublease, Tellabs may make the payment or perform the
covenant or agreement (but shall not have any obligation to Subtenant to
do so).
In such event, amounts so paid and amounts expended in undertaking such
performance, together with all costs, expenses, and reasonable attorneys'
fees
incurred by Tellabs in connection therewith, shall be Rent.
(c) Tellabs
shall in no event be in default in the performance of any of Tellabs’
obligations under this Sublease unless and until Tellabs shall have failed
to
perform those obligations within 30 days (or such longer period as is needed
to
cure the default if Tellabs has commenced to cure the default and is diligently
pursuing the cure to completion) after written notice from Subtenant to Tellabs
properly specifying the default.
14. Non-Waiver.
Failure
of Tellabs or Subtenant to declare any default or delay in taking any action
in
connection with a default shall not waive the default. No receipt of moneys
by
Tellabs from Subtenant after the termination in any way of the Term or of
Subtenant's right of possession or after the giving of any notice shall
reinstate, continue, or extend the Term or affect any notice given to Subtenant
or any suit commenced or judgment entered before receipt of those
moneys.
15. Cumulative
Rights and Remedies.
All
rights and remedies of Tellabs and Subtenant under this Sublease are cumulative
and none shall exclude any other rights or remedies allowed by law.
16. Waiver
of Claims; Indemnity.
(a) Subtenant
releases and waives all claims against Landlord and Tellabs and each of their
respective officers, directors, shareholders, partners, agents, members,
managers, and employees and their respective successors and assigns for injury
or damage to person, property, or business sustained in or about the Premises
by
Subtenant other than by reason of Tellabs' or Landlord's gross negligence
or
willful misconduct and except in any case which would render this release
and
waiver void under law.
10
(b) Subtenant
agrees to indemnify and defend Landlord and Tellabs and each of their respective
officers, directors, shareholders, partners, agents, members, managers, and
employees and their respective successor and assigns, from and against any
and
all losses, claims, demands, costs, and expenses of every kind and nature,
including attorneys' fees and litigation expenses, to the extent arising
from
Subtenant's occupancy of the Premises, Subtenant's construction of any leasehold
improvements in the Premises or from any breach or default on the part of
Subtenant in the performance of any agreement or covenant of Subtenant to
be
performed or performed under this Sublease or pursuant to the terms of this
Sublease, or from any act or omission of Subtenant or its agents, officers,
employees, guests, servants, invitees, or customers in or about the Premises
or
the Building. At Tellabs' request, Subtenant will defend such proceeding
at its
sole cost and expense by legal counsel reasonably satisfactory to Tellabs
and
Landlord.
17. Waiver
of Subrogation.
Despite
anything in this Sublease to the contrary, Tellabs and Subtenant each waive
all
rights of recovery, claims, actions, or causes of action against the other
and
the officers, directors, shareholders, partners, agents, and employees of
each
of them, and Subtenant waives any and all rights of recovery, claims, actions,
or causes of action against Landlord and its agents, officers, directors,
partners, members, managers, and employees and their respective successors
and
assigns, for any loss or damage that may occur to the Premises, any improvements
to the Premises, or any personal property of any person in the Premises by
reason of fire, the elements, or any other cause insured against under valid
and
collectible fire and extended coverage insurance policies, regardless of
cause
or origin, including negligence, except in any case which would render this
waiver void under law, to the extent that such loss or damage is actually
recovered under said insurance policies.
18. Brokerage
Commission.
Each
party represents and warrants to the other that, other than CB Xxxxxxx Xxxxx
(who has an agreement with Xxxxxxxx Xxxxx Xxxxx & Partners, LLC) and
Xxxxxxxx Xxxx Company (whose commissions will be payable pursuant to separate
agreements), it has had no dealings with any real estate broker or agent
in
connection with this Sublease, and that it knows of no other real estate
broker
or agent who is or might be entitled to a commission in connection with this
Sublease. This Section 18 is not intended to create any third party
beneficiary rights. Each party agrees to protect, defend, indemnify, and
hold
the other and its officers, directors, partners, members, managers, agents,
and
employees and their respective successors and assigns harmless from and against
any and all claims inconsistent with the foregoing representations and
warranties for any brokerage, finders or similar fee or commission in connection
with this Sublease, if such claims are based on or relate to any act of the
indemnifying party which is contrary to the foregoing representations and
warranties.
19. Successors
and Assigns.
This
Sublease shall be binding upon and inure to the benefit of the successors
and
assigns of Tellabs, and shall be binding upon and inure to the benefit of
the
successors of Subtenant and, to the extent any such assignment may be approved,
Subtenant's assigns. In addition, Subtenant acknowledges and agrees that
Tellabs
has the absolute and unqualified right to assign this Sublease subject to
the
consent of Landlord, provided that the assignee assumes all obligations of
Tellabs under this Sublease.
20. Assignment
and Subletting.
(a)
Subtenant shall not (directly or indirectly by operation of law or otherwise)
assign this Sublease nor sublet or otherwise transfer its interest in
11
all
or
any part of the Premises without the prior written consent of Landlord and
Tellabs. Tellabs agrees to not unreasonably withhold, condition, or delay
its
consent, but may condition its consent on the consent of Landlord and may
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 Subtenant wishes to assign or transfer
this
Sublease or sublet all or any part of the Premises, it shall give notice
in
writing of such intention to Landlord and Tellabs, furnishing Landlord and
Tellabs with a copy of the proposed assignment, transfer, or sublease document
and full information as to the identity and financial status of the proposed
assignee or subtenant. Tellabs will then, within 15 days of receipt of such
notice, approve or reject such assignment or subletting by written notice
to
Subtenant. If no such response is given, Tellabs shall be deemed to have
elected
to approve the assignment or subletting.
(b) Despite
the foregoing, subject to the terms of the Prime Lease, Subtenant may, without
Tellabs' consent, assign this Sublease or sublet the Premises to its parent
entity, any wholly-owned subsidiary of Subtenant, or any affiliate wholly-owned
by Subtenant’s parent entity (each an "Affiliate
Assignee")
provided that: (i) Subtenant shall have given Tellabs at least 30 days prior
notice of the assignment or sublease; (ii) Subtenant shall not be in default
under any of the provisions of this Sublease at the time of the assignment
or
sublease; and (iii) the Affiliate Assignee delivers to Landlord and Tellabs
the
assignment, sublease, or other written instrument in which Affiliate Assignee
agrees to assume and be bound by all the conditions, obligations, and agreements
of Subtenant contained in this Sublease.
(c) Despite
any assignment, sublease, or other transfer, Subtenant shall remain liable
under
this Sublease and shall not be released without the express written agreement
of
Landlord and Tellabs. The consent by Landlord and Tellabs to any assignment
or
subletting shall not constitute a waiver of the necessity for consent to
any
subsequent assignment or subletting. Within 10 days after Subtenant receives
payment under an assignment, sublease, or other transfer of the Premises
or this
Sublease, Subtenant will pay Tellabs 50% of all rent and consideration that
Subtenant receives from that transfer that exceeds Rent (or if only a portion
of
the Premises is being sub-sublet, 50% of all rent and consideration that
Subtenant receives over the portion of the Rent then payable to Tellabs
allocated on a square footage basis to the sub-sublet space), less the actual
and reasonable out-of-pocket costs and expenses incurred by Subtenant in
connection with the assignment or subletting of the Premises, including,
but not
limited to, attorneys fees, marketing expenses, rent concessions, brokerage
commissions, any alteration costs and allowances.
21. Entire
Agreement.
This
Sublease contains all the terms, covenants, conditions, and agreements between
Tellabs and Subtenant relating in any manner to the rental, use, and occupancy
of the Premises. No prior agreement or understanding pertaining to the same
shall be valid or of any force or effect. The terms, covenants, and conditions
of this Sublease cannot be altered, changed, modified, or added to except
by a
written instrument signed by Tellabs and Subtenant and consented to by Landlord
in writing.
12
22. Notices.
(a) If
any
notice from Landlord or otherwise relating to the Prime Lease is delivered
to
the Premises or is otherwise received by Subtenant, Subtenant shall, as soon
thereafter as possible but in any event within 2 business days, deliver that
notice to Tellabs if that notice is written or advise Tellabs of the notice
by
telephone if the notice is oral.
(b) Notices
and demands required, desired, or permitted to be given by either party to
the
other with respect to this Sublease or the Premises shall be in writing and
shall not be effective for any purpose unless it is served either by personal
delivery with a receipt requested, by nationally recognized overnight air
courier service or by United States certified or registered mail, return
receipt
requested, postage prepaid, addressed as follows:
|
if
to Tellabs:
|
Tellabs Operations, Inc. | |
| One Tellabs Center | ||
| 0000 Xxxx Xxxxx Xxxx | ||
| Xxxxxxxxxx, XX 00000 | ||
| Attn: Real Estate, M.S. 448 | ||
|
with
a copy to:
|
Tellabs Operations, Inc. | |
| One Tellabs Center | ||
| 0000 Xxxx Xxxxx Xxxx | ||
| Xxxxxxxxxx, XX 00000 | ||
| Attn: Legal Dept. - MS 16 | ||
|
if
to Subtenant:
|
Datawatch Corporation | |
| 000 Xxxxx Xxxxxx, Xxxxx 000 | ||
| Xxxxxx, XX 00000 | ||
| Attn: Vice President and Chief Financial Officer |
AFTER
RENT COMMENCEMENT
DATE:
| Datawatch Corporation | ||
| 000 Xxxx Xxxx | ||
| Xxxxxxxxxx, XX 00000 | ||
|
Attn:
Vice President and Chief Financial Officer
|
||
|
With
a copy to:
|
Xxxxxx, Xxxx & Xxxxxxx LLP | |
| Xxx Xxxxxxxxxxxxx Xxxxx | ||
| Xxxxxx, XX 00000 | ||
| Attn: Xxxxxxx X. Xxxxxxx, Xx./Datawatch Corporation Counsel |
Notices
and demands shall be deemed to have been received 3 days after mailing, if
sent
via regular mail, otherwise upon delivery. Either party may change its address
for receipt of notices by giving notice to the other party.
13
23. Security
Deposit.
(a)
Instead of a cash security deposit, Subtenant, before taking possession of
the
Premises, shall furnish Tellabs an irrevocable letter of credit (the
“Letter
of Credit”)
for the
benefit of Tellabs in the amount of $125,000 which Tellabs may draw upon
in the
event of a default by Subtenant in the payment of any amounts due under this
Sublease or any of Subtenant’s obligations under this Sublease or on account of
Subtenant’s failure to renew an expiring Letter of Credit as set forth below.
The Letter of Credit shall be issued by a United States bank reasonably
satisfactory to Tellabs in a form acceptable to Tellabs. The Letter of Credit
shall provide that Tellabs may draw on the Letter of Credit by furnishing
a
sight draft in the amount demanded together with a statement certified by
Tellabs that Tellabs is entitled to draw upon the Letter of Credit in the
amount
being demanded by Tellabs. The initial Letter of Credit shall be valid through
at least 3 years from the Commencement Date, and Subtenant shall cause the
Letter of Credit to be renewed no later than 60 days prior to its expiration
date and any renewal shall be for at least a 12-month period. If Subtenant
fails
to renew an expiring Letter of Credit (and furnish Tellabs the renewal document)
at least 60 days prior to an expiration, Tellabs shall be entitled to draw
upon
the Letter of Credit in the full amount of the Letter of Credit in which
event
Tellabs shall retain the money as a cash security deposit. If at any time
Tellabs draws upon the Letter of Credit and uses or applies the whole or
any
part of the money to satisfy Subtenant’s obligations under this Sublease,
Subtenant shall, within 30 days, cause the Letter of Credit to be increased
back
to the full amount.
(b) If
during
the first 3 years of the Term Subtenant fully and faithfully performs every
provision of this Sublease to be performed by it, then Tellabs will permit
Subtenant to reduce the Letter of Credit to $107,140. If through each subsequent
year of the Term Subtenant has fully and faithfully performed every provision
of
this Sublease to be performed by it, then Tellabs will permit Subtenant to
reduce the Letter of Credit by $17,860 after the end of the applicable year.
In
each instance where Subtenant is entitled to a reduction, Subtenant will
provide
Tellabs with a substitute letter of credit that complies with the requirements
of Section 23(a) or an amendment to the Letter of Credit in form and substance
acceptable to Tellabs indicating the reduced amount of the security deposit.
If
Subtenant defaults under this Sublease and fails to cure the default within
the
applicable cure period, if any, Subtenant shall, within 5 days after written
demand from Tellabs, deposit cash with Tellabs in an amount sufficient to
restore the security deposit to its original amount and Subtenant's failure
to
do so shall be a material breach of this Sublease.
(c) Tellabs'
drawing upon the Letter of Credit shall not be construed to limit the amount
of
damages recoverable by Tellabs or prevent Tellabs from exercising any other
right or remedy available to Tellabs under this Sublease, at law, or in equity
and shall not be construed as liquidated damages.
24. Holding
Over.
If
Subtenant fails to vacate the Premises at the end of the Term, then Subtenant
shall be a tenant at sufferance and, in addition to all other damages and
remedies to which Tellabs may be entitled for Subtenant’s holding over, (a)
Subtenant shall pay, in addition to the other Rent, Base Rent equal to 200%
of
the Base Rent payable during the last month of the Term, and (b) Subtenant
shall
otherwise continue to be subject to all of Subtenant’s obligations under this
Sublease. In addition, Subtenant shall pay Tellabs all damages, consequential
as
well as direct, sustained by reason of Subtenant’s retention of possession. The
provisions of this Section 24 do not limit the Tellabs’ rights of reentry or any
other right under this Sublease.
14
25. Amenities.
Subtenant’s employees may use, in common with other tenants and occupants of the
Building and Building Two in Quorum Office Park, the café and the fitness center
located on the first floor of the Building. The use of the café and the fitness
center shall be subject to rules and regulations established by Tellabs from
time to time, including, without limitation, the execution and delivery to
Tellabs of Tellabs’ form of waiver and release by each user of the fitness
center. Subtenant acknowledges that Tellabs is not in the business of operating
fitness or workout facilities and that Tellabs is providing those facilities
(and the equipment located in those facilities) solely as an accommodation
to
Subtenant and other tenants and occupants of the Building and Building Two
in
Quorum Office Park. To the maximum extent permitted by law, Subtenant on
behalf
of itself and its employees, releases and waives all claims against Landlord
and
Tellabs and their respective officers, directors, shareholders, partners,
agents, and employees arising from the use of the fitness center by Subtenant
or
Subtenant’s agents, employees, officers, directors, guests, servants, invitees,
or customers. Tellabs has contracted with a third-party operator to provide
food
service in the café on a non-subsidized basis. The prices, type, variety,
selection, quality, and hours of the food service will be Tellabs and the
third-party operator.
26. Non-disturbance
Agreement.
At the
time that Tellabs requests Landlord’s Consent, Tellabs shall use reasonable
efforts (which efforts shall consist of delivering a written request to Landlord
and following up with no less than 3 telephone inquiries) to obtain a
non-disturbance and recognition agreement (an “NDA”) from Landlord, under which
Landlord shall agree that this Sublease shall remain in full force and effect
on
the terms and provisions set forth in this Sublease despite termination of
the
Prime Lease, in form reasonably acceptable to Subtenant and Landlord. Subtenant
acknowledges and agrees that (a) obtaining the NDA from Landlord is not a
condition to the effectiveness of this Sublease or Subtenant’s obligations under
this Sublease, (b) Tellabs shall have no liability if Landlord fails or refuses
for any reason to give Subtenant the NDA, and (c) if Tellabs fails for any
reason to obtain the NDA, this Sublease shall not terminate and shall continue
as a binding agreement in accordance with its terms.
27. Quiet
Enjoyment.
If
Subtenant pays Rent and the other amounts due under this Sublease, and observes
and performs all the covenants, terms and conditions of this Sublease, Subtenant
shall peaceably and quietly hold and enjoy the Premises for the Term without
interruption by Tellabs or any person or persons claiming by, through or
under
Tellabs, subject, nevertheless, to the terms and conditions of this
Sublease.
28. Counterparts;
Facsimile Signatures.
This
Sublease may be executed in one or more counterparts, each of which taken
together shall constitute one original document. A counterpart of this Sublease
transmitted by facsimile will, if it is executed, be deemed in all respects
to
be an original document, and any signature thereon shall be deemed an original
signature and shall have the same binding legal effect as an original executed
counterpart of this Sublease.
29. Authority.
Tellabs
and Subtenant each represents to the other that it, and the person signing
this
Sublease on its behalf, has the power and authority to bind it to this
Sublease.
15
30. Governing
Law.
This
Sublease shall be deemed to be a contract made under the laws of the
Commonwealth of Massachusetts and for all purposes shall be governed by and
interpreted in accordance with the laws of the Commonwealth of Massachusetts,
regardless of its conflicts of laws principles.
31. Recordation.
Subtenant shall not record (or cause to be recorded) this Sublease or a
memorandum or other notice of this Sublease in any public office without
the
express written consent of Tellabs and Landlord. A breach by Subtenant of
this
covenant shall constitute a material default by Subtenant under this
Sublease.
32. Effectiveness.
No
lease,
sublease, or obligation on Tellabs will arise until both Tellabs and Subtenant
have signed and delivered this instrument, and Tellabs has obtained Landlord's
Consent.
[The
signature page follows]
16
Signed:
|
SUBTENANT:
|
TELLABS:
|
|
Datawatch
Corporation,
a
Delaware corporation
|
Tellabs
Operations, Inc.,
a
Delaware corporation
|
|
By:
Name
Title: |
By:
Name
Title: |
17
EXHIBIT
A
PRIME
LEASE
[See
attached]
A-1
EXHIBIT
B
depiction
of premises
[See
attached]
B-1