Massachusetts-Lowell-900 Chelmsford Street Sublease - Eastman Kodak Co. and Datawatch Corp.
SUBLEASE
THIS SUBLEASE is made as of the 30th day of April, 1999, between
EASTMAN KODAK COMPANY, a New Jersey corporation, having an office at 343 State
Street, Rochester, New York 14650, hereinafter called "Sublandlord" and
DATAWATCH CORPORATION, a Delaware corporation, having an office and place of
business at 234 Ballardvale Street, Wilmington, Massachusetts 01887 hereinafter
called "Subtenant".
WITNESSETH:
WHEREAS, by a certain Lease dated as of September 30, 1995 (the
"Lease") as amended by a certain First Amendment to Lease dated as of January
31, 1996 (the "First Amendment"; together, hereinafter collectively called the
"Prime Lease"), Sublandlord leases from CROSS POINT LIMITED PARTNERSHIP (the
"Prime Landlord"), approximately 89,465 rentable square feet of space at Tower 3
of the building located at 900 Chelmsford Street, in Lowell, Massachusetts
(herein called the "Building"), a copy of which Prime Lease is attached hereto
as EXHIBIT "A"; and
WHEREAS, Subtenant desires to sublease certain premises from
Sublandlord;
NOW, THEREFORE, for a good and valuable consideration and in
consideration of the mutual agreements hereinafter set forth, the receipt and
sufficiency of which are hereby acknowledged, Sublandlord and Subtenant
stipulate, covenant and agree as follows:
1. PREMISES.
(a) Leased Premises. Sublandlord does hereby sublease to Subtenant a
portion of the Building consisting of approximately 21,029 square feet of
rentable area on the fifth (5th) floor of the Building (the "Premises") as
outlined on EXHIBIT "B" which is attached hereto and made a part hereof. In
addition to the sublease of the Premises, Subtenant shall have the right to use
any common areas and amenities of the Building including any common restrooms,
accessways and utility and mechanical closets, to the same extent and in the
same manner as is allowed by the terms of the Prime Lease.
(b) Furniture. In addition to the Premises, Subtenant shall have the
right to use all of the furniture described on EXHIBIT "C" attached hereto and
made a part hereof (hereinafter collectively called the "Furniture").
2. TERM. The term of this Sublease shall commence on June 1, 1999 or
such earlier or later date as Sublandlord shall deliver possession of the
Premises to Subtenant free of tenants and occupants and in the condition
otherwise required by Paragraph 6 herein (the "Commencement Date") and expire at
5:00 p.m. on January 31, 2001, unless sooner terminated.
3. USES. Subtenant shall use and occupy the Premises for general
business office purposes and for the training of Subtenant's customers and
employees but for no other use, but subject, however, to the same limits imposed
on Sublandlord under the Prime Lease.
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4. RENT. Beginning on the Commencement Date of this Sublease, Subtenant
shall pay Sublandlord annual base rent (the "Annual Base Rent") of THREE HUNDRED
FIFTEEN THOUSAND FOUR HUNDRED THIRTY FIVE DOLLARS ($315,435.00) payable in equal
monthly installments of TWENTY SIX THOUSAND TWO HUNDRED EIGHTY SIX DOLLARS AND
25 CENTS ($26,286.25) each (the "Monthly Base Rent") in advance on the first day
of each calendar month and continuing for the remainder of the term of this
Sublease. Payments of Monthly Base Rent and any additional rent due pursuant to
Paragraph 5 of this Sublease for any portion of a month shall be prorated on a
thirty (30) day basis. Rent payments will be delivered to Sublandlord's office
located at 343 State Street, Rochester, New York 14650, Attention: Corporate
Real Estate Office, or such other place as Sublandlord may designate.
5. ADDITIONAL RENT.
(a) Electricity. In addition to the Base Rent, Subtenant shall pay
Sublandlord, as additional rent, electricity charges in the annual amount OF
TWENTY ONE THOUSAND TWENTY-NINE AND 00/100 DOLLARS ($21,029.00), payable in
equal monthly installments of ONE THOUSAND SEVEN HUNDRED FIFTY-TWO AND 42/100
DOLLARS ($1,752.42) each, beginning on the Commencement Date and continuing on
the first day of each and every calendar month thereafter.
(b) Defined. Subtenant shall also pay Sublandlord, as additional rent,
Adjustment Rent in accordance with the terms of Paragraph 2 of the Lease except
that, for purposes of this Sublease, (1) the Base Expense Year shall be calendar
year 1998 (i.e., January 1, 1998 through December 31, 1998); (ii) the Base Tax
Year shall be fiscal tax year 1999 (i.e., July 1, 1998 through June 30, 1999);
and (iii) Tenant's Proportionate Share (for Subtenant herein) shall have the
definition set forth in Paragraph 5(d) below.
(c) Intentionally Deleted.
(d) Proportionate Share. For purposes of this Sublease and Subtenant,
"Tenant's Proportionate Share" shall be one and eight-tenths (1.8%) percent. It
is understood that for purposes of this Sublease, Subtenant shall pay twenty
five percent (25%) of the Expenses and the Taxes charged to Sublandlord as
additional rent pursuant to the terms of the Prime Lease.
(e) Other Charges. If Subtenant shall procure any additional services
from the Building, such as alterations or after-hours air conditioning,
Subtenant shall pay for same at the rates charged therefor to Sublandlord by the
Prime Landlord and shall make such payment to the Sublandlord within fifteen
(15) days after demand for same. Any rent or other sums payable by Subtenant
under this Article 5 shall be additional rent under this Sublease and
collectable as such.
6. PREPARATION FOR OCCUPANCY. As of the Commencement Date, Sublandlord
shall deliver to Subtenant and Subtenant shall accept from Sublandlord the
Premises in its then "as is" condition (except as otherwise provided in
Paragraph 6 herein), broom clean, and all of Sublandlord's furniture, fixtures,
equipment and other personal property shall be removed therefrom at
Sublandlord's expense (except the Furniture). On or before the Commencement
date, Sublandlord shall be responsible for demising the Premises so as to
separate the same from the premises leased pursuant to the Prime lease. Except
for such construction, Sublandlord shall not be required to
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perform tenant improvements of any kind or nature, and all such improvements and
the performance thereof shall be subject to the provisions of this Sublease and
the Prime Lease. The Premises will be delivered to Subtenant with all mechanical
systems (including heating, ventilating, air-conditioning, life safety,
electrical and lighting systems) in working order as of the Commencement Date.
7. INCORPORATION OF PRIME LEASE.
(a) Subordination to Prime Lease. This Sublease is subject and
subordinate to the Prime Lease. Except as otherwise specifically provided herein
or as may be inconsistent with the terms hereof, all of the terms, covenants and
conditions with which Sublandlord is bound to comply under the Prime Lease
shall, to the extent only that they apply to the Premises, be binding upon
Subtenant and Sublandlord shall be bound by those certain obligations of Prime
Landlord set forth in the Prime Lease to the extent that those obligations apply
to the Premises (unless otherwise provided herein to the contrary in Paragraph
11 of this Sublease). In the case of any breach of this Sublease by Subtenant,
Sublandlord shall have all the rights against Subtenant as would be available to
the Prime Landlord against Sublandlord under the Prime Lease if such breach of
the Prime Lease were by the Sublandlord. It is the intention of the parties
that, except as otherwise provided in this Sublease, the respective rights and
obligations of Sublandlord and Subtenant under this Sublease shall be governed
by the language of the various articles of the Prime Lease as if they were typed
out in this Sublease in full, and for that purpose the words "Landlord",
"Tenant" and "Lease" as used in the Prime Lease, shall read, respectively,
"Sublandlord", "Subtenant" and "Sublease".
(b) Deletions; Modifications. For the purposes of this Sublease, the
following provisions of the Prime Lease are hereby deleted or modified as
follows:
(i) DELETIONS: Delete in their entirety, the following sections of
the Lease:
A. From the of the Prime Lease, delete Paragraph 15 entitled
"Preliminary Term";
B. Delete the second, third and fourth sentences of the last
paragraph of Paragraph 5(A) of the Lease;
C. Delete Paragraph 10(C) entitled "Self-Insurance";
D. Delete Paragraph 22 entitled "Notices";
E. Delete the third sentence of Paragraph 23(M) entitled
"Definition of Landlord's Liability";
F. Delete the third sentence of Paragraph 23(M) entitled
"Definition of Landlord's Liability";
G. Delete the second full paragraph of Paragraph 24 entitled
"Parking;
H. Delete the second paragraph of Paragraph 26 entitled
"Option to Extend";
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I. Delete Paragraph 28 entitled "Preliminary Term";
J. Delete Paragraph 29 entitled "Access to Tower 3 Roof";
K. Delete Paragraph 30 entitled "Expansion Option;
L. Delete Exhibit E entitled "Original Premises Tenant
Improvement Work Agreement; and
M. Delete Exhibit F entitled "Expansion Space Tenant
Improvement Work Agreement".
N. Delete in its entirety, all provisions of the First
Amendment. to the Prime Lease except Paragraph 5 of such
First Amendment.
(ii) MODIFICATIONS: Modify the following sections of the Prime
Lease:
A. From the Schedule of the Prime Lease, modify the following
defined terms: (1) Paragraph 6 entitled "Premises" in
accordance with the provisions of Paragraph 1 herein; (2)
Paragraph 7 entitled "Commencement Date" in accordance with
Paragraph 2 herein; (3) Paragraph 9 entitled "Annual Base
Rent" in accordance with Paragraph 4 herein; (4) Paragraph 10
entitled "Monthly Base Rent" in accordance with Paragraph 4
herein; (5) Paragraph 11 entitled "Tenant's Proportionate
Share" in accordance with Paragraph 5(d) herein; (6) Paragraph
12 entitled "Base Expense Year" in accordance with the terms
of Paragraph 5(b) herein; (7) Paragraph 13 entitled "Base Tax
Year" in accordance with the terms of Paragraph 5(c) herein;
(8) Paragraph 14 entitled "Brokers" in accordance with the
terms of Paragraph 17 herein.; (9) The Lease Schedule
Paragraphs 16 and 17 entitled, respectively, "Address of
Landlord" and "Address of Tenant" in accordance with such
addresses as are set forth for Sublandlord and Subtenant in
Paragraph 9 of this Sublease.
B. Paragraph 3 of the Lease entitled "Use" in accordance with
the terms of Paragraph 3 herein.
C. Paragraph 9(A) of the Lease entitled "Requirements" in the
Section entitled "Alterations" to require Subtenant to obtain
the consent of Sublandlord to any and all alterations desired
by Subtenant as well as the consent of Prime Landlord to any
and all alterations that require the consent of Prime Landlord
pursuant to Paragraph 9(A) of the Lease desired by Subtenant,
which consent of Sublandlord shall not be unreasonably
withheld, conditioned or delayed.
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D. Paragraph 10A of the Lease entitled "Tenant's Insurance" to
require Subtenant to name both Prime Landlord and Sublandlord
as additional insureds on all insurance policies required of
Subtenant therein. Paragraph 21 of the Lease entitled
"Brokers" in accordance with the terms of Paragraph 17 herein.
E. Paragraph 24 of the Lease entitled "Parking" in accordance
with the terms of Paragraph 15 herein.
F. Paragraph 26 of the Prime Lease entitled "Option To Extend"
to grant an option to extend the term of this Sublease for the
Premises to Subtenant, if and only if Sublandlord exercises
its option to extend the Prime Lease as provided in Paragraph
26 of the Prime Lease. If Sublandlord so exercises its option
to extend the term of this Sublease, it shall give Subtenant
prior notice of its exercise of such option within thirty (30)
days after the determination of the Additional Term Annual
Base Rent according to Paragraph 26 of the Lease, but no later
than September 1, 2000, and Subtenant may exercise its option
to extend the term of this Sublease within thirty (30) days
after Subtenant's receipt of such notice from Sublandlord (the
reference to April 1, 2000 in said Paragraph 26
notwithstanding). If Subtenant exercises its option to extend
the term of this Sublease in a timely manner, the term of this
Sublease shall be extended and all of the terms, covenants and
conditions of this Sublease shall continue except: (1) there
shall be no further option to extend the term of this
Sublease; and (2) the Annual Base Rent shall be changed to the
Additional Term Annual Base Rent as determined in accordance
with the terms of the Prime Lease. If Subtenant fails to
notify Sublandlord of its intention to exercise its option to
extend within such thirty day period or determines not to
exercise its option to extend, the option to extend shall
thereafter be null, void and of no further force and effect.
G. Paragraph 27 of the Prime Lease entitled "Directory; Signs"
to provide Subtenant with Subtenant's name and suite number on
the Building standard directory and to install Building
standard tenant identification signage within the elevator
lobby to the extent such are acceptable and allowable by Prime
Landlord but in no event to exceed a maximum of twenty-five
percent (25%) of Sublandlord's signage available pursuant to
the Prime Lease.
H. Exhibit A attached to the Prime Lease showing Floor Plans
of the Premises by replacing said Exhibit A with EXHIBIT "B"
attached hereto.
8. QUIET ENJOYMENT; NO FORFEITURE.
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(a) Quiet Enjoyment. Sublandlord covenants and agrees with Subtenant
that so long as no Default (as defined in the Lease) exists which has not been
cured within any applicable grace or cure periods, and upon Subtenant paying the
rent and additional rent reserved in this Sublease and observing and performing
all of the other obligations, terms, covenants and conditions of this Sublease
on Subtenant's part to be observed and performed within any applicable grace or
cure periods, Subtenant may peaceably and quietly enjoy the Premises during the
term of this Sublease; provided, however, that this Sublease shall automatically
terminate upon termination of the Prime Lease and Subtenant shall have no claim
against Sublandlord unless such termination was caused by the default of
Sublandlord in the performance of its obligations under the Prime Lease which
default does not arise from the failure of Subtenant (which failure is not cured
within any applicable grace or cure periods) to pay or perform its obligations
under this Sublease. Sublandlord shall not during the term of this Sublease
exercise any right or remedy under the Prime Lease to cause the termination of
the Prime Lease with respect to the Premises, nor shall Sublandlord voluntarily
agree to any such termination of the Prime Lease. In the event of any default by
Sublandlord under the Prime Lease, Sublandlord shall use its best efforts to
cure such default in such a manner as to avoid the termination of the Prime
Lease.
(b) No Forfeiture. Subtenant covenants and agrees that Subtenant shall
not do or suffer or permit its employees, agents, contractors, invitees or
anyone over whom Subtenant has control to do anything which would constitute a
default under the Prime Lease or would cause the Prime Lease to be cancelled,
terminated or forfeited by virtue of any rights of cancellation, termination, or
forfeiture reserved or vested in Prime Landlord under the Prime Lease, and that,
following notice from Sublandlord to Subtenant of the nature of such default and
the expiration of any cure or grace periods without such failure or default
being cured by Subtenant, Subtenant will indemnify and hold harmless Sublandlord
from and defend Sublandlord against all claims, liabilities, losses and damages
of any kind whatsoever (excepting special and consequential damages) that
Sublandlord may incur by reason of, resulting from or arising out of any such
cancellation, termination or forfeiture.
9. NOTICES. Any notice, demand or request under this Sublease shall be
in writing and shall be considered properly delivered when addressed as
hereinafter provided and delivered by registered or certified mail (return
receipt requested) or delivered by a nationally recognized overnight courier
service. Any notice, demand or request by Subtenant to Sublandlord shall be
addressed to Sublandlord at the following address (which shall be the "Address
of Landlord" for the purposes of this Sublease):
Eastman Kodak Company
Corporate Real Estate
343 State Street
Rochester, New York 14650-1265
Attention: Lease Management Office
Any notice demand or request by Sublandlord to Subtenant shall be
addressed to Subtenant at the following address (which shall be the "Address of
Tenant" for the purposes of this Sublease) until otherwise directed in writing
by Subtenant:
Before the Commencement Date:
Datawatch Corporation
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234 Ballardvale Street
Wilmington, MA 01887
Attention: Ms. Betsy J. Hartwell
After the Commencement Date:
Datawatch Corporation
900 Chelmsford Street
Lowell, Massachusetts 01851
Attention: Ms. Betsy J. Hartwell
In either case with a copy of:
Testa, Hurwitz & Thibeault, LLP
125 High Street
Boston, Massachusetts 02110
Attention: Real Estate Department
Sublandlord agrees that it shall provide to Prime Landlord, copies of
any notices given to Subtenant hereunder with respect to any default by
Subtenant or of any event which, with the passage of time, could constitute a
default by Subtenant pursuant to either the Prime Lease or this Sublease. Copies
of any notices which are required to be sent to the Prime Landlord shall be sent
to:
Cross Point Limited Partnership
900 Chelmsford Road
Lowell, Massachusetts 01851
Attention: James Lesko, Management Office
10. ASSIGNMENT AND SUBLETTING. Subtenant agrees that it shall not
assign, mortgage, transfer, pledge or encumber its interest in this Sublease, in
whole or in part, or sublet or permit the subletting of the Premises, or permit
the Premises or any part thereof to be occupied or used by any person or entity
other than Subtenant, in each case without first obtaining the prior written
consent of Sublandlord, which consent Sublandlord will not unreasonably withhold
or delay. No such assignment or sublease shall operate to release Subtenant from
its obligations under this Sublease. Failure of Sublandlord to obtain the
consent of Prime Landlord or submission by Subtenant of a proposed assignee or
subtenant who, in the opinion of Sublandlord reasonably exercised, is a
competitor of Sublandlord shall in each case be a reasonable and conclusive
basis for withholding consent.
11. PRIME LANDLORD'S RESPONSIBILITIES. Subtenant recognizes that
Sublandlord is not in position to furnish the services set forth in the Prime
Lease, obtain an agreement of non-disturbance or to perform certain other
obligations which are not within the control of Sublandlord, such as, without
limitation, maintenance, repairs and replacements to the Building and the
Premises, compliance with laws, and restoration of the Premises and the Building
(other than alterations made by or on behalf of the Sublandlord, including any
alterations in accordance with Exhibits E and F attached to the Lease) after
casualty or condemnation. Therefore, notwithstanding anything to the contrary
contained in this Sublease, Subtenant agrees that Subtenant shall look solely to
Sublandlord to cause Prime Landlord to furnish all services and to perform all
obligations agreed upon by Prime Landlord under the Lease to furnish and
perform. Sublandlord shall not be liable to Subtenant or be deemed in default
hereunder for failure of Prime Landlord to furnish or perform the same provided
that Sublandlord use its reasonable efforts to cause Prime Landlord to furnish
or perform that which is required
<PAGE>
by the Prime Lease including, the reasonably timely prosecution by Sublandlord
of any enforcement actions reasonably necessary to compel the performance
required by and from Prime Landlord..
12. INTENTIONALLY DELETED.
13. SECURITY DEPOSIT. Subtenant has paid Sublandlord on the execution
and delivery of this Sublease the sum of TWENTY SEVEN THOUSAND FIVE HUNDRED AND
00/100 DOLLARS ($27,500.00) as security (the "Security Deposit") for the full
and faithful performance of the terms, covenants and conditions of this lease on
Subtenant's part to be performed or observed. If Sublandlord fails to pay or
perform in a full and timely manner any of its obligations under this Sublease
and such failure shall continue after any required notice and the expiration of
any applicable cure period, Sublandlord may apply all or any portion of the
Security Deposit toward curing any such failure and compensating Sublandlord for
any loss, damage or expenses arising from such failure. The Security Deposit, or
any unapplied balance thereof after deductions for any failures of Subtenant in
accordance with the provisions of this paragraph, shall be returned to Subtenant
after the time fixed as the expiration of the demised term and after the removal
of Subtenant and surrender of possession of the demised Premises to Sublandlord.
14. SUBLANDLORD'S RIGHT TO REMEDY SUBTENANT DEFAULTS. Sublandlord shall
have the right, but shall not be obligated, to correct or remedy any default on
the part of Subtenant under any provision of the Sublease or the Prime Lease (to
the extent applicable to the Subtenant under the terms hereof) in respect of the
Premises which continues after notice to Subtenant and the expiration of any
applicable cure period. Subtenant agrees that in the event Sublandlord shall
correct or remedy any such default after the cure period therefor, Subtenant
shall pay to Sublandlord the reasonable cost thereof, including reasonable
expenses and attorney's fees, upon written demand therefor. Subtenant shall have
the right, but shall not be obligated, to correct or remedy any default after
the cure period therefor on the part of Sublandlord under this Sublease or under
the Prime Lease, and Sublandlord agrees that in such event, Sublandlord shall
pay to Subtenant the reasonable cost thereof including reasonable expenses and
attorney's fees upon written demand.
15. PARKING. Subtenant shall have the right to use, at no additional
cost to Subtenant, seventy-eight (78) parking spaces in the Parking Lot (as
defined in the Prime Lease) in accordance with the terms of the first paragraph
of Paragraph 24 of the Prime Lease.
16. SURRENDER OF THE PREMISES. Upon the expiration or earlier
termination or cancellation of this Lease (the "Termination Date"), Subtenant
shall surrender possession of the Premises to Sublandlord broom clean and in as
good condition as existed on the Commencement Date and all of the Furniture of
Sublandlord located therein, also in as good condition as existed on the
Commencement Date, reasonable wear and tear and damage from fire or other
casualty excepted. If Subtenant shall fail to comply with the requirements of
this Section 16 regarding the removal of its property and other items from the
Premises on the Termination Date, Subtenant shall be deemed to have failed to
vacate the Premises and as a result shall be subject to the provisions of
Paragraph 17 of the Prime Lease regarding "Holding Over."
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17. BROKERS. For purposes of this Sublease, the "Brokers" (as defined
in the Lease) shall mean CB Richard Ellis, Inc. and TC New England Brokerage,
Inc., doing business as Fallon Hines & O'Connor. Sublandlord and Subtenant
represent to each other that each has only dealt with the Brokers in connection
with this Sublease and that, insofar as each party herein knows, no other broker
negotiated this Sublease or is entitled to any commission herewith. Each party
agrees to indemnify, defend and hold the other harmless from and against any
claims for a fee or commission made by any broker, other than Brokers, claiming
to have acted by or on behalf of such party in connection with this Lease.
Sublandlord shall pay the Brokers a commission pursuant to the terms of a
separate agreement.
18. BINDING EFFECT; ENTIRE AGREEMENT. This Sublease shall bind and
inure to the benefit of Subtenant, Sublandlord and their respective legal
representatives, successors and assigns. This Sublease contains the entire
agreement of the parties with respect to the subject matter herein and may not
be modified except by instrument in writing which is signed by both parties.
19. SUBLANDLORD'S WARRANTIES AND REPRESENTATIONS. Sublandlord warrants
and represents to Subtenant that:
(a) True Copy of Prime Lease. The copy of the Lease attached hereto
as EXHIBIT "A" is a complete and accurate copy of the Lease
which has not been amended except by the First Amendment as
attached thereto.
(b) No Defaults. To the best of Sublandlord's knowledge, Prime
Landlord is not in default under the Prime Lease, not has any
event occurred which, after applicable notice and/or the
expiration of any grace period shall constitute a default by
Prime Landlord under the Prime Lease. To the best of
Sublandlord's knowledge, Sublandlord is not in default under
the Prime Lease, not has any event occurred which, after
applicable notice and/or the expiration of any grace period
shall constitute a default by Prime Sublandlord under the Prime
Lease.
(c) Payment of Rent. All payments of Annual Base Rent, Adjustment
Rent, additional rent and other charges due under the Prime
Lease have been paid as billed or required in the normal course
of business through April 30, 1999.
IN WITNESS WHEREOF, duly authorized representatives of the parties
hereto have executed this Sublease as of the day and year first above written.
EASTMAN KODAK COMPANY, SUBLANDLORD DATAWATCH CORPORATION,
SUBTENANT
BY: /s/ MEE F. WING BY: /s/ BETSY J. HARTWELL
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NAME: MEE F. WING NAME: BETSY J. HARTWELL
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TITLE: DIRECTOR, REAL ESTATE TITLE: VP FINANCE/CFO
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