Back to top

55 WALKERS BROOK DRIVE LEASE

Lease Agreement

55 WALKERS BROOK DRIVE LEASE | Document Parties: GREEN MOUNTAIN COFFEE ROASTERS INC | Brookview Investments, LLC | Brookview Nordic Holdings LLC | KEURIG INCORPORATED | Nordblom Management Company, Inc | Nordic Properties, Inc You are currently viewing:
This Lease Agreement involves

GREEN MOUNTAIN COFFEE ROASTERS INC | Brookview Investments, LLC | Brookview Nordic Holdings LLC | KEURIG INCORPORATED | Nordblom Management Company, Inc | Nordic Properties, Inc

. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here.
Title: 55 WALKERS BROOK DRIVE LEASE
Governing Law: Massachusetts     Date: 12/13/2007
Industry: Food Processing     Sector: Consumer/Non-Cyclical

55 WALKERS BROOK DRIVE LEASE, Parties: green mountain coffee roasters inc , brookview investments  llc , brookview nordic holdings llc , keurig incorporated , nordblom management company  inc , nordic properties  inc
50 of the Top 250 law firms use our Products every day

EXHIBIT 10.29

55 WALKERS BROOK DRIVE

LEASE

ARTICLE 1

Reference Data

 

1.1 Subject Referred To

Each reference in this Lease to any of the following subjects shall be construed to incorporate the data stated for that subject in this Section 1.1.

 

Date of this Lease:    August 16, 2007   
Building:    The Building known as and numbered 55 Walker’s Brook Drive in Reading, Massachusetts in Deed dated May 31, 2006, and recorded in Middlesex County South District Registry of Deeds in Book 47559, Page 449 (the Building and such parcel of land hereinafter being collectively referred to as the “Property”).
Premises:    Portions of the first, second and third floors of the Building, substantially as shown on Exhibit A attached hereto.
Rentable Floor
Area of Premises:
   36,544 square feet
Landlord:    Brookview Investments, LLC

Original Notice

Address of Landlord:

   c/o Nordblom Management Company, Inc.
  

15 Third Avenue

Burlington, Massachusetts 01803

Tenant:    Keurig Incorporated, a Delaware corporation

Original Notice

Address of Tenant:

   Prior to the date Tenant takes occupancy of any portion of the Premises for
   business purposes:
  

101 Edgewater Drive

Wakefield, MA 01880

Attn: General Counsel

   After such occupancy date:
  

55 Walkers Brook Drive

Reading, MA

Attn: General Counsel

Rent Commencement Date:    January 1, 2008
Expiration Date:    December 31, 2015
Delivery Date:    The Date of this Lease.
Annual Fixed Rent Rate:    Commencement Date - Rent Commencement Date:    $ 0.00
   Rent Commencement Date - May 31, 2008:    $ 0.00
   June 1, 2008 - December 31, 2008:    $ 584,704.00
   January 1, 2009 - December 31, 2010:    $ 913,600.00
   January 1, 2011 - December 31, 2011:    $ 931,872.00
   January 1, 2012 - December 31, 2012:    $ 968,416.00
   January 1, 2013 - December 31, 2013:    $ 986,688.00,
   January 1, 2014 - December 31, 2014:    $ 1,004,960.00
   January 1, 2015 - December 31, 2015:    $ 1,023,232.00
Monthly Fixed Rent Rate:    Commencement Date - Rent Commencement Date:    $ 0.00
   Rent Commencement Date - May 31, 2008:    $ 0.00
   June 1, 2008 - December 31, 2008:    $ 48,725.33
   January 1, 2009 - December 31, 2010:    $ 76,133.33
   January 1, 2011 - December 31, 2011:    $ 77,656.00
   January 1, 2012 - December 31, 2012:    $ 80,701.33
   January 1, 2013 - December 31, 2013:    $ 82,224.00
   January 1, 2014 - December 31, 2014:    $ 83,746.67
   January 1, 2015 - December 31, 2015:    $ 85,269.33
Letter of Credit Amount:    $305,294.67
Guarantor:    Green Mountain Coffee Roasters, Inc.
TI Allowance:    $1,827,200.00
Supplemental Allowance:    Up to $365,440.00, subject to the terms of Section 3.4.
Base Operating Costs:    Operating Expenses for calendar year 2008, grossed up as set forth in Section 4.2.3 hereof
Base Taxes:    Taxes for fiscal year 2008 (i.e. July 1, 2007 - June 30, 2008), grossed up as set forth in Section 4.2.1 hereof.

 

1

 


Tenant’s Percentage:    The ratio of the Rentable Floor Area of the Premises to the total rentable area of the Building, which shall initially be deemed to be 26.46%.
Permitted Uses :    General office use, and as ancillary thereto, and to the extent permitted by applicable zoning and all applicable laws, ordinances and regulations. (i) laboratory/research and development, (ii) storage (but only in that portion of the Premises marked on Exhibit A as the Storage Area), and (iii) limited light manufacturing in support of the research and development use (all such uses subject to Section 6.1.2 hereof)
Public Liability Insurance Limits:   

 

  Commercial General Liability:   $3,000,000 per occurrence
      $5,000,000 general aggregate

 

1.2 Exhibits .

The Exhibits listed below in this section are incorporated in this Lease by reference and are to be construed as a part of this Lease.

 

EXHIBIT A    Plan showing the Premises
EXHIBIT A-1    Plan showing Right of First Refusal Space
EXHIBIT B    Commencement Date Notification
EXHIBIT C    Landlord’s Work (base building)
EXHIBIT C-1    Landlord’s Work (demising plan)
EXHIBIT C-2    Tenant’s Work
EXHIBIT D    Work Change Order
EXHIBIT E    Form Letter of Credit
EXHIBIT F    Rules and Regulations
EXHIBIT G    Form Tenant Estoppel Certificate
EXHIBIT H    Form of Landlord’s Waiver And Consent

 

1.3 Table of Articles and Sections

 

ARTICLE 1 — Reference Data   
1.1    Subjects Referred To    1
1.2    Exhibits    2
1.3    Table of Articles and Sections    2
ARTICLE 2 — Premises and Term   
2.1    Premises    3
2.2    Term    4
2.3    Extension Option    4
ARTICLE 3 — Improvements   
3.1    Performance of Work and Approval of Landlord’s Work    4
3.2    Tenant’s Work    5
3.3    TI Allowance    5
3.4    Supplemental Allowance    5
3.5    Space Planning Allowance    5
ARTICLE 4 — Rent   
4.1    The Fixed Rent    5
   4.1.1    Supplemental Rent    5
4.2    Additional Rent    5
   4.2.1    Real Estate Taxes    5
   4.2.2    Personal Property Taxes    6
   4.2.3    Operating Costs    6
   4.2.4    Insurance    7
   4.2.5    Utilities    7
4.3    Late Payment of Rent    7
4.4    Letter of Credit    8
   4.4.1    Amount of Letter of Credit    8
   4.4.2    Renewal of Letter of Credit    8
   4.4.3    Draws to Cure Defaults    8
   4.4.4    Draws to Pay Damages    8
   4.4.5    Draws for Failure to Deliver Substitute Letter of Credit    8
   4.4.6    Transferability    8
   4.4.7    Return of Letter of Credit at End of Term    8
ARTICLE 5 — Landlord’s Covenants   
5.1    Affirmative Covenants    8
   5.1.1    Heat and Air Conditioning    8
   5.1.2    Electricity    8
   5.1.3    Cleaning; Water    8
   5.1.4    Elevator; Fire Alarm    9
   5.1.5    Repairs    9
   5.1.6    Landscaping, Snow Removal, Grounds Maintenance    9
   5.1.7    Insurance    9
   5.1.8    Access    9
   5.1.9    Compliance with Law    9
5.2    Interruption    9
5.3    Outside Services    9
ARTICLE 6 — Tenant’s Additional Covenants   
6.1    Affirmative Covenants    9
   6.1.1    Perform Obligations    9

 

2

 


  6.1.2    Use    9
  6.1.3    Repair and Maintenance    9
  6.1.4    Compliance with Law    10
  6.1.5    Indemnification    10
  6.1.6    Landlord’s Right to Enter    10
  6.1.7    Personal Property at Tenant’s Risk    10
  6.1.8    Payment of Landlord’s Cost of Enforcement    10
  6.1.9    Yield Up    10
  6.1.10    Rules and Regulations    10
  6.1.11    Estoppel Certificate    10
  6.1.12    Landlord’s Expenses Re: Consents    11
6.2   Negative Covenants    11
  6.2.1    Assignment and Subletting    11
  6.2.2    Nuisance    12
  6.2.3    Hazardous Wastes and Materials    12
  6.2.4    Floor Load; Heavy Equipment    12
  6.2.5    Installation, Alterations or Additions    12
  6.2.6    Abandonment    13
  6.2.7    Signs    13
  6.2.8    Parking and Storage    13
ARTICLE 7 — Casualty or Taking   
7.1   Termination    13
7.2   Restoration    13
7.3   Award    14
ARTICLE 8 — Defaults   
8.1   Events of Default    14
8.2   Remedies    14
8.3   Remedies Cumulative    14
8.4   Landlord’s Right to Cure Defaults    14
8.5   Effect of Waivers of Default    14
8.6   No Waiver, etc.    15
8.7   No Accord and Satisfaction    15
ARTICLE 9 — Rights of Holders   
9.1   Rights of Mortgage Holders    15
9.2   Lease Superior or Subordinate to Mortgages    15
ARTICLE 10 — Miscellaneous Provisions   
10.1   Notices From One Party to the Other    15
10.2   Quiet Enjoyment    15
10.3   Lease Not to be Recorded    15
10.4   Limitation of Landlord’s Liability    15
10.5   Acts of God    16
10.6   Landlord’s Default    16
10.7   Brokerage    16
10.8   Applicable Law and Construction    16
10.9   Right of First Offer    16
10.10   Right of First Refusal    16
10.11   Expansion Right    16
10.12   Lease Guaranty    17

ARTICLE 2

Premises and Term

 

2.1 Premises . Landlord hereby leases to Tenant and Tenant hereby leases from Landlord, subject to and with the benefit of the terms, covenants, conditions and provisions of this Lease, the Premises, excluding the roof, exterior faces of exterior walls, the common stairways, stairwells, elevators and elevator shafts, and pipes, ducts, conduits, wires, and appurtenant fixtures serving exclusively or in common other parts of the Building (and any areas, such as the space above the ceiling or in the walls, that may contain such pipes, ducts, conduits, wires or appurtenant fixtures), and if Tenant’s space includes less than entire rentable area of any floor, excluding the central core area of such floor.

Tenant shall have, as appurtenant to the Premises, rights to use in common, subject to reasonable rules of general applicability to tenants of the Building from time to time made by Landlord of which Tenant is given notice: (a) the common lobbies, hallways, stairways, and elevators of the Building, (b) common walkways and driveways necessary for access to the Building, (c) the common parking areas serving the Building, and (d) if the Premises include less than the entire rentable area of any floor, the common toilets and other common facilities in the central core area of such floor.

Landlord shall ensure that a cafeteria/food service presently planned for the Building (the “Cafeteria”) will be operational on or before the Rent Commencement Date. Landlord shall use diligent efforts to require the Cafeteria to use, on an exclusive basis, Keurig/Green Mountain Coffee Roasters products and equipment for brewing coffee. Tenant shall have the right, upon reasonable prior notice to Landlord, and subject to availability (it being understood that such Cafeteria is subject to a “first come, first served” availability for use), to use, at no charge (other than as specified herein), the seating areas of the Cafeteria for meetings provided such meetings take place outside of the Cafeteria’s normal business hours. Tenant’s use of the Cafeteria shall be in compliance with all applicable laws and codes, and otherwise subject to the terms and conditions of this Lease, and Tenant shall, as Additional Rent, be responsible to reimburse Landlord for any out-of-pocket “set up” and clean up costs for such use, as well as any other costs reasonably incurred by Landlord in connection with such use, including but not limited to the costs of any heating, ventilating and air-conditioning (“HVAC”) provided to the Cafeteria during the hours of such use (it being understood Tenant shall not be obligated to reimburse Landlord for costs that would have been ordinarily incurred by Landlord irrespective of Tenant’s use of the Cafeteria—e.g. if Landlord was to have ordinarily supplied HVAC to the Cafeteria during certain hours, and then Tenant uses the Cafeteria during such time, then Landlord shall not charge Tenant for such HVAC). To the extent that the Cafeteria shall cease operations at any time during the term of this Lease, then, for as long as Landlord elects to retain the Cafeteria as a common space, Tenant shall be permitted to continue its use of the same, subject to the terms and conditions hereof.

 

3

 


Tenant shall be permitted, on an unreserved, first-come-first-served basis, to use up to 3.4 parking spaces per 1,000 rentable square feet of the Premises in the parking area serving the Building (it being agreed that as of the date of this Lease Tenant has a right to 125 parking spaces pursuant to the preceding ratio). Tenant shall be permitted to use such spaces for the parking of passenger vehicles.

Landlord reserves the right from time to time, using commercially reasonable efforts to minimize the nature and duration of any interference with use of the Premises: (a) to install, use, maintain, repair, replace and relocate for service to the Premises and other parts of the Building, or either, pipes, ducts, conduits, wires and appurtenant fixtures, wherever located in the Premises or Building, (b) to alter or relocate any other common facility, (c) to make any repairs and replacements to the Premises which Landlord may deem necessary, and (d) in connection with any excavation made upon adjacent land of Landlord or others, to enter, and to license others to enter, upon the Premises to do such work as the person causing such excavation deems necessary to preserve the wall of the Building from injury or damage and to support the same.

 

2.2 Term . TO HAVE AND TO HOLD for a term beginning on the Commencement Date, which shall be the earlier of (a) the date that is forty five (45) days following the date of this Lease and (b) the date Tenant commences Tenant’s Work (as defined in Section 3.2 ), and ending on the Expiration Date, unless sooner terminated or extended as hereinafter provided. When the Commencement Date has been determined, such date shall be evidenced by a document, in the form attached hereto as Exhibit B, which Landlord shall complete and deliver to Tenant, and which shall be deemed conclusive unless Tenant shall notify Landlord of any disagreement therewith within ten (10) days of receipt.

Upon full execution of the Lease, Tenant may, following notice to Landlord, and prior to the Commencement Date, enter the Premises and without payment of rent, but otherwise subject to all the terms and conditions of this Lease, for the purpose of commencing Tenant’s Work (as hereinafter defined), provided that Tenant shall not interfere with any work then being performed by or for Landlord in the Premises or Building, and provided Tenant shall reimburse Landlord for Landlord’s actual costs in connection with the Tenant’s pre-commencement work performed after normal building hours, including the cost of Tenant’s electrical and HVAC usage for after normal building hours construction, as well as any additional janitorial services and trash removal. All such work shall be done in accordance with, and Tenant shall comply with, the provisions of Section 6.2.5 hereof.

 

2.3 Extension Option . Provided that as of the date of the notice specified below, Tenant is not in default and has not previously been in default of its obligations under this Lease beyond any applicable notice and cure period, Tenant shall have the right to extend the term of this Lease for one (1) additional period of five (5) years, commencing on January 1, 2016 and expiring December 31, 2020 (the “extended term”). All of the terms, covenants and provisions of this Lease shall apply to such extended term except that the Annual Fixed Rent Rate for such extension period shall be the Market Rate (as hereinafter defined) at the commencement of such extended term, as designated by Landlord (subject to the terms of this Section 2.3), the Base Operating Expenses for the extension period shall be the Operating Expenses for the calendar year in which the extension period begins (i.e. calendar year 2016), and the Base Taxes for the extension period shall be the Taxes for the fiscal year in which the extension period begins (i.e. fiscal year 2016). “Market Rate” as used herein shall mean the annual fair market rate during the extended term for leases of space located in the vicinity of the Building that are of comparable size, condition and quality as the Premises. If Tenant shall elect to exercise the aforesaid option, it shall do so by giving Landlord notice in writing of its intention to do so not later than one (1) year prior to the expiration of the original term of this Lease (i.e. no later than December 31, 2014). If Tenant gives such notice, the extension of this Lease shall be automatically effected without the execution of any additional documents. The original term and the extended term are hereinafter collectively called the “term”.

If Tenant exercises the aforesaid option, then not later than eleven (11) months prior to the expiration of the original term of this Lease Landlord shall give written notice to Tenant of Landlord’s designation of the Market Rate. Within fifteen (15) days following Landlord’s notice, Tenant shall either propose its designation of the Market Rate by giving notice thereof to Landlord, or accept Landlord’s designation of the Market Rate. Failure on the part of Tenant to give such notice of its designation of Market Rate shall bind Tenant to Landlord’s designation of the Market Rate. If Tenant proposes its designation of the Market Rate, then Landlord and Tenant may attempt to negotiate regarding the Market Rate. If the parties have been unable to reach agreement within thirty (30) days following Tenant’s designation, then the Market Rate may be submitted to arbitration by either party as follows: The Market Rate shall be determined by impartial arbitrators, one to be chosen by the Landlord, one to be chosen by Tenant, and a third to be selected, if necessary, as below provided. The arbitrators shall be charged to determine the Market Rate by selecting one or the other of Landlord’s or Tenant’s determinations thereof. The arbitrators shall have no authority or jurisdiction to make any other determination of such amount. The unanimous written decision of the two first chosen, without selection and participation of a third arbitrator, or otherwise, the written decision of a majority of three arbitrators chosen and selected as aforesaid, shall be conclusive and binding upon Landlord and Tenant. Landlord and Tenant shall each notify the other of its chosen arbitrator within ten (10) days following the call for arbitration and, unless such two arbitrators shall have reached a unanimous decision within thirty (30) days after their designation, they shall so notify the office of then President of the Boston Bar Association and request him to select an impartial third arbitrator who has not represented either Landlord or Tenant previously, and who shall be a real estate counsellor or a broker dealing with like types of properties to determine the Market Rate as herein defined. Such third arbitrator and the first two chosen shall hear the parties and their evidence and render their decision within thirty (30) days following the conclusion of such hearing and notify Landlord and Tenant thereof. The expense of the third arbitrator (if any) shall be borne by the “loser” of such arbitration (i.e. the party whose designation of Market Rate is not chosen following such arbitration). If the dispute between the parties as to a Market Rate has not been resolved before the commencement of Tenant’s obligation to pay Fixed Rent based upon such Market Rate, then Tenant shall pay Fixed Rent under the Lease based upon the Market Rate designated by Landlord until either the agreement of the parties as to the Market Rate, or the decision of the arbitrators, as the case may be, at which time Tenant shall pay any underpayment of Fixed Rent to Landlord, or Landlord shall refund any overpayment of Fixed Rent to Tenant.

In any event, the Annual Fixed Rent Rate for the extended term shall not be less than $26.00 per rentable square foot.

ARTICLE 3

Improvements

 

3.1 Performance of Work and Approval of Landlord’s Work . Landlord shall cause to be performed the base building work described in Exhibit C and the demising work substantially as shown on Exhibit C-1 (such work is collectively referred to as “Landlord’s Work”). All such work shall be done in a good and workmanlike manner employing good materials and so as to conform to all applicable building laws. Tenant agrees that Landlord may make any changes in such work which may become reasonably necessary or advisable, other than substantial changes, without approval of Tenant, provided written notice is promptly given to Tenant; and Landlord may make substantial changes in such work, with the written approval of Tenant, which shall not be unreasonably withheld or delayed. Landlord shall use diligence to cause the portion of Landlord’s Work described in Exhibit C to be substantially completed by the Rent Commencement Date and shall use diligence to cause the demising portion of Landlord’s Work as shown on Exhibit C-1 to be completed within sixty (60) days from the date of this Lease, subject to the provisions of Section 10.5 hereof. Landlord agrees that Tenant may make changes in such work with the approval of Landlord and the execution by Landlord and Tenant of a Work Change Order in the form attached hereto as Exhibit D. Landlord’s Work shall be deemed approved by Tenant when Tenant occupies the Premises for the conduct of its business, except for items of Landlord’s Work which are uncompleted or do not conform to Exhibits C and C-1 and as to which Tenant shall, in either case, have given written notice to Landlord prior to such occupancy. A certificate of completion by a licensed architect or registered engineer shall be conclusive evidence that Landlord’s Work has been completed except for items stated in such certificate to be incomplete or not in conformity with Exhibits C and C-1. Except for Landlord’s Work, the Premises leased to and accepted by Tenant “as is” in the condition they are in as of the date hereof, without any obligation on the part of Landlord to prepare the Premises for Tenant’s occupancy or any representation or warranty concerning the condition of the Premises or the Building. Notwithstanding the foregoing, prior to the date that Tenant completes Tenant’s Work and obtains a certificate of occupancy for the Premises, the base Building systems (including but not limited to elevators) shall be in good working order and condition, and the common areas of the Building shall be in compliance with applicable building codes.

 

4

 


3.2 Tenant’s Work . Tenant shall perform the work consistent with the plans listed in Exhibit C-2, or comparable layout plans (such work being referred to herein as “Tenant’s Work”). Tenant’s Work shall be performed by Tenant in accordance with the terms of this Lease, including, without limitation, the requirements of Section 6.2.5 hereof. Tenant’s Work shall be at Tenant’s sole cost and expense and performed pursuant to architectural, electrical and mechanical construction drawings, plans and specifications first approved by Landlord and consistent with the plans listed in Exhibit C-2 or comparable layout plans. Tenant agrees to employ for Tenant’s Work one or more responsible contractors of whom Landlord has given prior approval, and whose labor will work without interference with other labor working on the Property, and to cause such contractors employed by Tenant to carry worker’s compensation insurance in accordance with statutory requirements and comprehensive public liability insurance covering such contractors on or about the Premises in amounts at least equal to the limits set forth in Section 1.1 and to submit certificates evidencing such coverage to Landlord prior to the commencement of such work. Tenant shall commence Tenant’s Work on the Premises promptly following the date that the Premises are delivered to Tenant, and shall diligently pursue the same to completion, it being understood that Tenant’s Work shall be completed no later than March 1, 2008.

 

3.3 TI Allowance . Landlord shall provide Tenant with the TI Allowance, which shall be used by Tenant for construction costs in connection with Tenant’s Work. Notwithstanding the foregoing, up to $182,720.00 of the TI Allowance may be applied to moving expenses incurred by Tenant in connection with moving in to the Premises. The TI Allowance shall be payable as follows:

A. The first forty percent (40%) of the TI Allowance shall be paid to Tenant within thirty (30) days following the last to occur of: (i) Tenant providing an affidavit from Tenant’s architect certifying that fifty percent (50%) of Tenant’s Work has been completed, and (ii) Tenant’s request for such portion of the TI Allowance.

B. Another forty percent (40%) of the TI Allowance shall be paid to Tenant within thirty (30) days following the last to occur of: (i) Tenant’s delivery to Landlord of a copy of the certificate of occupancy (or temporary certificate of occupancy) issued in connection with Tenant’s Work, and (ii) Tenant’s request for such portion of the TI Allowance.

C. The final twenty percent (20%) of the TI Allowance shall be paid to Tenant within thirty (30) days following the last to occur of: (i) all phases of Tenant’s Work have been substantially completed in substantial accordance with the plans approved by Landlord and a final certificate of occupancy has been issued; (ii) Tenant has caused to be delivered to Landlord all final invoices from contractors, subcontractors and suppliers evidencing the total cost of Tenant’s Work, together with lien waivers from general contractors; (iii) Tenant has paid for the cost of Tenant’s Work, and has caused to be delivered to Landlord written evidence of such payment; and (iv) Tenant’s request for such portion of the TI Allowance.

If Tenant does not submit any or all of its requests for Landlord to distribute the TI Allowance in accordance with the provisions contained in this Section 3.3 on or before the date that is than ninety (90) days following the Rent Commencement Date, any unused amount shall accrue to the sole benefit of Landlord, it being understood that Tenant shall not be entitled to any credit, abatement or other concession in connection therewith. Nordblom Development Company shall, as compensation for its review of plans in connection with Tenant’s Work, receive from Tenant a fee equal to one percent (1%) of the total cost of Tenant’s Work, which fee may be applied to the TI Allowance.

 

3.4 Supplemental Allowance . Tenant may request, on or before November 1, 2007, the Supplemental Allowance to be added to and made a part of the TI Allowance. In the event that Tenant makes such request on or before such date, then the Supplemental Allowance shall be added to the TI Allowance, and the Fixed Rent shall be adjusted pursuant to Section 4.1.1 hereof. The Supplemental Allowance shall be used in connection with the design and construction of Tenant’s Work.

 

3.5 Space Planning Allowance . Landlord shall provide Tenant with an allowance (the “Space Planning Allowance”) of $4,385.28 in connection with Tenant’s architect’s preliminary test fit for the Premises. Tenant shall deliver a copy of such test fit to Landlord promptly upon Tenant’s receipt of the same, and, subject to Tenant’s right to use the same in connection with Tenant’s Work, such test fit shall become the property of Landlord. Landlord shall fund the Space Planning Allowance within thirty (30) days following Tenant delivering to Landlord (i) a copy of the test fit and (ii) evidence that Tenant has paid its architect an amount equal to or in excess of the Space Planning Allowance in connection with the test fit. Tenant shall be entitled to the Space Planning Allowance irrespective of whether Tenant and Landlord enter into this Lease.

ARTICLE 4

Rent

 

4.1 The Fixed Rent . Tenant covenants and agrees to pay rent to Landlord at the Original Address of Landlord or, following at least ten (10) days’ prior notice, at such other place or to such other person or entity as Landlord may by notice in writing to Tenant from time to time direct, at the Annual Fixed Rent Rate, in equal installments at the Monthly Fixed Rent Rate (which is 1/12th of the Annual Fixed Rent Rate), in advance, without notice or demand, and except as otherwise expressly provided for herein, without setoff, abatement, suspension, deferment, reduction or deduction, on the first day of each calendar month included in the term; and for any portion of a calendar month at beginning of the term, at the rate for the first year of the term payable in advance for such portion. It is the intention of the parties hereto that the obligations of Tenant hereunder shall be separate and independent covenants and agreements, that the Annual Fixed Rent, the Additional Rent and all other sums payable by Tenant to Landlord shall continue to be payable in all events and that the obligations of Tenant hereunder shall continue unaffected, unless the requirement to pay or perform the same shall have been terminated pursuant to an express provision of this Lease, provided that the foregoing shall in no way be considered as a waiver of Tenant’s right to claim or assert a constructive eviction.

If Landlord shall give notice to Tenant that all rent and other payments due hereunder are to be made to Landlord by electronic funds transfers, so called, or by similar means, Tenant shall make all such payments as shall be due after receipt of said notice by means of said electronic funds transfers (or such similar means as designated by Landlord).

 

  4.1.1 Supplemental Rent . If Tenant requests the Supplemental Allowance to be added to the TI Allowance, then, as of the date that the TI Allowance is disbursed to Tenant, the parties shall enter into an amendment to this Lease whereby the Annual Fixed Rent Rate specified in Section 1.1 shall be increased such that the Supplemental Allowance will be amortized over a period of ninety one (91) months at a rate of nine percent (9%).

 

4.2 Additional Rent . Tenant covenants and agrees to pay, as Additional Rent, insurance costs, utility charges, personal property taxes and its pro rata share of increases in real estate taxes and operating costs with respect to the Premises as provided in this Section 4.2 as follows:

 

  4.2.1

Real Estate Taxes . If Taxes (as hereinafter defined) for any Tax Year during the term shall exceed Base Taxes, Tenant shall reimburse Landlord, as Additional Rent, for Tenant’s Percentage of such excess (such amount hereinafter referred to as “Tax Excess”). Tenant shall remit to Landlord, on the first day of each calendar month, estimated payments on account of Tax Excess, such monthly amounts to be sufficient to provide Landlord, by the time real estate tax payments are due and payable to any governmental authority responsible for collection of same, a sum equal to the Tax Excess, as reasonably estimated by Landlord from time to time on the basis of the most recent tax data available (it being understood that Tenant

 

5

 


 

shall have at least ten [10] days’ prior notice before it shall be required pay any revised estimate of Tax Excess). If the total of such monthly remittances for any Tax Year is greater than the actual Tax Excess for such Tax year, Landlord shall promptly pay to Tenant, or if the term of this Lease has not expired or otherwise been terminated, credit against the next accruing payments to be made by Tenant pursuant to this subsection 4.2.1, the difference; if the total of such remittances is less than the actual Tax Excess for such Tax Year, Tenant shall pay the difference to Landlord at least ten (10) days prior to the date or dates within such Tax Year that any Taxes become due and payable to the governmental authority (but in any event no earlier than ten (10) days following a written notice to Tenant, which notice shall set forth the manner of computation of Tax Excess).

If, after Tenant shall have made reimbursement to Landlord pursuant to this subsection 4.2.1, Landlord shall receive a refund of any portion of Taxes paid by Tenant with respect to any Tax Year during the term hereof as a result of an abatement of such Taxes by legal proceedings, settlement or otherwise (without Landlord having any obligation to undertake any such proceedings), Landlord shall promptly pay to Tenant, or credit against the next accruing payments to be made by Tenant pursuant to this subsection 4.2.1, the Tenant’s Percentage of the refund (less the proportional, pro rata expenses, including attorneys’ fees and appraisers’ fees, incurred in connection with obtaining any such refund), as relates to Tax Excess paid by Tenant to Landlord with respect to any Tax Year for which such refund is obtained.

In the event this Lease shall commence, or shall end (by reason of expiration of the term or earlier termination pursuant to the provisions hereof), on any date other than the first or last day of the Tax Year, or should the Tax Year or period of assessment of real estate taxes be changed or be more or less than one (1) year, as the case may be, then the amount of Tax Excess which may be payable by Tenant as provided in this subsection 4.2.1 shall be appropriately apportioned and adjusted.

The term “Taxes” shall mean all taxes, assessments, betterments and other charges and impositions (including, but not limited to, fire protection service fees and similar charges) levied, assessed or imposed at any time during the term by any governmental authority upon or against the Property, or taxes in lieu thereof, and additional types of taxes to supplement real estate taxes due to legal limits imposed thereon. If, at any time during the term of this Lease, any tax or excise on rents or other taxes, however described, are levied or assessed against Landlord with respect to the rent reserved hereunder, either wholly or partially in substitution for, or in addition to, real estate taxes assessed or levied on the Property, such tax or excise on rents shall be included in Taxes; however, Taxes shall not include franchise, estate, inheritance, succession, capital levy, transfer, income or excess profits taxes assessed on Landlord. Taxes shall include any estimated payment made by Landlord on account of a fiscal tax period for which the actual and final amount of taxes for such period has not been determined by the governmental authority as of the date of any such estimated payment.

If during any portion of any tax year, including but not limited to fiscal year 2008, for which Taxes are being computed, the Building was not at least 95% occupied by tenants and as a result the Taxes assessed were less than the same would have been had the Building been at least 95% occupied, then Taxes shall be reasonably extrapolated or “grossed up” by Landlord to the reasonably estimated Taxes that would have been incurred if the Building were 95% occupied by tenants, and such extrapolated amount shall, for the purposes of this Section 4.2.1, be deemed to be the Taxes for such year. Such extrapolation or “gross up” shall be determined for each fiscal year on a basis consistent with such determination for fiscal year 2008.

 

  4.2.2 Personal Property Taxes . Tenant shall pay all taxes charged, assessed or imposed upon the personal property of Tenant in or upon the Premises.

 

  4.2.3 Operating Costs . If, during the term hereof, Operating Costs (as hereinafter defined) incurred by Landlord in any calendar year shall exceed the Base Operating Costs, Tenant shall reimburse Landlord, as Additional Rent, for Tenant’s Percentage of any such excess (such amount being hereinafter referred to as the “Operating Costs Excess”). Tenant shall remit to Landlord, on the first day of each calendar month, estimated payments on account of Operating Costs Excess, such monthly amounts to be sufficient to provide Landlord, by the end of the calendar year, a sum equal to the Operating Costs Excess, as reasonably estimated by Landlord from time to time (it being understood that Tenant shall have at least ten [10] days’ prior notice before it shall be required pay any revised estimate of Operating Costs Excess). If, at the expiration of the year in respect of which monthly installments of Operating Costs Excess shall have been made as aforesaid, the total of such monthly remittances is greater than the actual Operating Costs Excess for such year, Landlord shall promptly pay to Tenant, or, if the term of this Lease has not expired or otherwise been terminated, credit against the next accruing payments to be made by Tenant pursuant to this subsection 4.2.3, the difference; if the total of such remittances is less than the Operating Costs Excess for such year, Tenant shall pay the difference to Landlord within twenty (20) days from the date Landlord shall furnish to Tenant an itemized statement of the Operating Costs Excess, prepared, allocated and computed in accordance with generally accepted accounting principles. Any reimbursement for Operating Costs due and payable by Tenant with respect to periods of less than twelve (12) months shall be equitably prorated.

The term “Operating Costs” shall mean all costs and expenses incurred for the operation, cleaning, maintenance, repair and upkeep of the Property, including, without limitation, all costs of maintaining and repairing the Property (including snow removal, landscaping and grounds maintenance, operation and maintenance of parking lots, sidewalks, walks, access roads and driveways, security, operation and repair of heating and air-conditioning equipment, elevators, lighting, trash compactors and any other Building equipment or systems) and of all repairs and replacements (other than repairs or replacements for which Landlord has received full reimbursement) necessary to keep the Property in good working order, repair, appearance and condition; all costs, including material and equipment costs, for cleaning and janitorial services to the Building (including window cleaning of the Building); all costs of any reasonable insurance carried by Landlord relating to the Property; all costs related to provision of heat (including oil, electric, steam and/or gas), air-conditioning, and water (including sewer charges) and other utilities to the Building; payments under all service contracts relating to the foregoing; all compensation, fringe benefits, payroll taxes and workmen’s compensation insurance premiums related thereto with respect to any employees of Landlord or its affiliates engaged in security and maintenance of the Property; costs of maintaining or operating an on-site cafeteria for the Building (including subsidy programs, if any); attorneys’ fees and disbursements (exclusive of any such fees and disbursements incurred in tax abatement proceedings) and auditing and other professional fees and expenses; and a management fee. Notwithstanding the foregoing, in the event that Landlord decides to aggregate Operating Costs with regard to the common areas, facilities and amenities associated with the Property (e.g. landscaping) with those of adjoining properties owned by Landlord or an affiliate of Landlord, then to the extent such costs have been aggregated, Tenant shall be responsible for the portion of such costs and expenses that are equitably allocable to the Property.

There shall not be included in such Operating Costs:

A. brokerage fees (including rental fees) related to the operation of the Building;

B. interest and depreciation charges incurred on the Property;

C. expenditures made by Tenant with respect to (i) cleaning, maintenance and upkeep of the Premises, and (ii) the provision of electricity to the Premises;

D. capital expenditures (except as provided for below);

E. any cost representing an amount paid to any person, firm, corporation or other entity related to or affiliated with Landlord, which amount is in excess of the amount which would have been paid in the absence of such relationship for comparable work or services;

F. the cost of correcting any violation of law existing as of the Commencement Date;

 

6

 


G. the costs of repairs or other work necessitated by fire or other casualty (provided Landlord shall be permitted to include in Operating Expenses any commercially reasonable deductible paid by Landlord in connection with such work);

H. costs or expenses related to the removal, abatement or remediation of hazardous materials in or about the Building and/or Property, to the extent such costs are not attributable to or do not arise from the acts or omissions of Tenant or Tenant’s agents, employees, invitees or contractors; and

I. costs incurred in connection with upgrading the Building to comply with handicap, life, fire and safety codes enacted prior to the Commencement Date and for which Landlord would be responsible by the terms of this Lease.

If, during the term of this Lease, Landlord shall replace any capital items or make any capital expenditures which are (a) required to comply with laws in effect after the Commencement Date, or (b) are intended to reduce Operating Costs, or (c) following the expiration of the first four (4) years of the term, as are required to replace worn-out items as may be necessary to maintain the Building in good working order, repair and appearance and in a first class condition (the items in (a), (b) and (c) above collectively called “capital expenditures”) the total amount of which is not properly included in Operating Costs for the calendar year in which they were made, there shall nevertheless be included in Operating Costs for each calendar year in which and after such capital expenditure is made the annual charge-off of such capital expenditure. (Annual charge-off shall be determined by (i) dividing the original cost of the capital expenditure by the number of years of useful life thereof [the useful life shall be reasonably determined by Landlord in accordance with generally accepted accounting principles and practices in effect at the time of acquisition of the capital item]; and (ii) adding to such quotient an interest factor computed on the unamortized balance of such capital expenditure based upon an interest rate reasonably determined by Landlord as being the interest rate then being charged for long-term mortgages by institutional lenders on like properties within the locality in which the Building is located.) Provided, further, that if Landlord reasonably concludes on the basis of engineering estimates that a particular capital expenditure will effect savings in Operating Costs and that such annual projected savings will exceed the annual charge-off of capital expenditure computed as aforesaid, then and in such events, the annual charge-off shall be determined by dividing the amount of such capital expenditure by the number of years over which the projected amount of such savings shall fully amortize the cost of such capital item or the amount of such capital expenditure; and by adding the interest factor, as aforesaid.

If during any portion of any year, including but not limited to calendar year 2008, for which Operating Costs are being computed, the Building was not at least 95% occupied by tenants or if Landlord was not supplying all tenants with the services being supplied hereunder, actual Operating Costs incurred shall be reasonably extrapolated or “grossed up” by Landlord to the reasonably estimated Operating Costs that would have been incurred if the Building were 95% occupied by tenants or if such services were being supplied to all tenants occupying 95% of the Building, and such extrapolated amount shall, for the purposes of this Section 4.2.3, be deemed to be the Operating Costs for such year. Such extrapolation or “gross up” shall be determined for each calendar year on a basis consistent with such determination for calendar year 2008.

 

  4.2.4 Insurance . Tenant shall, at its expense, as Additional Rent, take out and maintain throughout the term the following insurance protecting Landlord:

 

  4.2.4.1 Commercial general liability insurance naming Landlord, Tenant, and Landlord’s managing agent and any mortgagee of which Tenant has been given notice as insureds or additional insureds and indemnifying the parties so named against all claims and demands for death or any injury to person or damage to property which may be claimed to have occurred on the Premises (or the Property, insofar as used by customers, employees, servants or invitees of the Tenant), in amounts which shall, at the beginning of the term, be at least equal to the limits set forth in Section 1.1, and, which, from time to time during the term, shall be for such higher limits, if any, as are customarily carried in the area in which the Premises are located on property similar to the Premises and used for similar purposes; and workmen’s compensation insurance with statutory limits covering all of Tenant’s employees working on the Premises.

 

  4.2.4.2 Fire insurance with the usual extended coverage endorsements covering all Tenant’s furniture, furnishings, fixtures and equipment.

 

  4.2.4.3 All such policies shall be obtained from responsible companies qualified to do business and in good standing in Massachusetts, which companies and the amount of insurance allocated thereto shall be subject to Landlord’s approval, not to be unreasonably withheld. Tenant agrees to furnish Landlord with certificates evidencing all such insurance prior to the beginning of the term hereof and evidencing renewal thereof at least thirty (30) days prior to the expiration of any such policy. Each such policy shall be non-cancelable with respect to the interest of Landlord without at least ten (10) days’ prior written notice thereto. In the event provision for any such insurance is to be by a blanket insurance policy, the policy shall allocate a specific and sufficient amount of coverage to the Premises.

 

  4.2.4.4 All insurance which is carried by either party with respect to the Building, Premises or to furniture, furnishings, fixtures, or equipment therein or alterations or improvements thereto, whether or not required, shall include provisions which either designate the other party as one of the insured or deny to the insurer acquisition by subrogation of rights of recovery against the other party to the extent such rights have been waived by the insured party prior to occurrence of loss or injury, insofar as, and to the extent that, such provisions may be effective without making it impossible to obtain insurance coverage from responsible companies qualified to do business in the state in which the Premises are located (even though extra premium may result therefrom). In the event that extra premium is payable by either party as a result of this provision, the other party shall reimburse the party paying such premium the amount of such extra premium. If at the request of one party, this non-subrogation provision is waived, then the obligation of reimbursement shall cease for such period of time as such waiver shall be effective, but nothing contained in this subsection shall derogate from or otherwise affect releases elsewhere herein contained of either party for claims. Each party shall be entitled to have certificates of any policies containing such provisions. Each party hereby waives all rights of recovery against the other for loss or injury to property against which the waiving party is protected by insurance (or is required to be to protected by insurance under this Lease) containing said provisions, reserving, however, any rights with respect to recoupment of any commercially reasonable deductibles under such insurance. Tenant shall not acquire as insured under any insurance carried on the Premises any right to participate in the adjustment of loss or to receive insurance proceeds and agrees upon request promptly to endorse and deliver to Landlord any checks or other instruments in payment of loss in which Tenant is named as payee.

 

  4.2.5 Utilities . Tenant shall pay to Landlord all actual charges, without mark-up, for electricity supplied by Landlord and separately check metered (which shall include electricity for lights, outlets and VAV boxes), and charges for telephone and other utilities or services not supplied by Landlord pursuant to Subsections 5.1.1, 5.1.2, and 5.1.3, whether designated as a charge, tax, assessment, fee or otherwise, all such charges to be paid as the same from time to time become due. Except as otherwise provided in Article 5, it is understood and agreed that Tenant shall make its own arrangements for the installation or provision of all such utilities and that Landlord shall be under no obligation to furnish any utilities to the Premises and shall not be liable for any interruption or failure in the supply of any such utilities to the Premises. Any utilities for which Landlord bills Tenant shall be billed at the cost incurred by Landlord in obtaining such utilities.

 

4.3 Late Payment of Rent . If any installment of rent is paid after the date the same was due, and if on a prior occasion in the twelve (12) month period prior to the date such installment was due an installment of rent was paid after the same was due, then Tenant shall pay Landlord a late payment fee equal to five (5%) percent of the overdue payment.

 

7

 


4.4 Letter of Credit . The performance of Tenant’s obligations under this Lease shall be secured by a letter of credit throughout the term hereof in accordance with and subject to the following terms and conditions:

 

  4.4.1 Amount of Letter of Credit . (a) Concurrently with Tenant’s execution and delivery of this Lease, Tenant shall deliver to Landlord an irrevocable standby letter of credit (the “Original Letter of Credit”) which shall be (i) in the form of Exhibit E attached to this Lease (the “Form LC”), (ii) issued by a bank reasonably satisfactory to Landlord, (iii) in the amount equal to the Letter of Credit Amount, and (iv) for a term of at least 1 year, subject to the provisions of Section 4.4.2 below. The Original Letter of Credit, any Additional Letters(s) of Credit and Substitute Letter(s) of Credit are referred to herein as the “Letter of Credit.”

 

  4.4.2 Renewal of Letter of Credit . Each Letter of Credit shall be automatically renewable in accordance with the second to last paragraph of the Form LC; provided however, that Tenant shall be required to deliver to Landlord a new letter of credit (a “Substitute Letter of Credit”) satisfying the requirements for the Original Letter of Credit under Section 4.4.1 on or before the date 30 days prior to the expiration of the term of the Letter of Credit then in effect, if the issuer of such Letter of Credit gives notice of its election not to renew such Letter of Credit for any additional period pursuant thereto. Should any Letter of Credit contain a final expiration date, in addition to a current expiration date, such final expiration date shall be no earlier than 45 days following the Expiration Date of this Lease.

 

  4.4.3 Draws to Cure Defaults . If the Fixed Rent, Additional Rent or any other sum payable to Landlord hereunder shall be overdue and unpaid or should Landlord make payments on behalf of the Tenant, or Tenant shall fail to perform any of the terms of this Lease in all cases beyond the expiration of all applicable notice and cure periods, then Landlord shall have the right, at any time thereafter to draw down from the Letter of Credit the amount necessary to cure such default. In the event of any such draw by the Landlord, Tenant shall, within 30 days of written demand therefor, deliver to Landlord an additional Letter of Credit (“Additional Let

 
SITE SEARCH

AGREEMENTS / CONTRACTS

Document Title:

Entire Document: (optional)

Governing Law:(optional)


Try our advanced search >>
 

CLAUSES

Search Contract Clauses >>

Browse Contract Clause Library>>

Get Email Updates
Email:
This is only a partial view of this document. We have millions of legal documents and clauses drafted by top law firms. learn more search for free browse for free learn more