Back to top

EDGEWATER OFFICE PARK WAKEFIELD, MASSACHUSETTS SECOND AMENDMENT TO LEASE Epsilon Data Management, LLC

Lease Agreement

EDGEWATER OFFICE PARK WAKEFIELD, MASSACHUSETTS SECOND AMENDMENT TO LEASE Epsilon Data Management, LLC | Document Parties: ALLIANCE DATA SYSTEMS CORP You are currently viewing:
This Lease Agreement involves

ALLIANCE DATA SYSTEMS CORP

. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here.
Title: EDGEWATER OFFICE PARK WAKEFIELD, MASSACHUSETTS SECOND AMENDMENT TO LEASE Epsilon Data Management, LLC
Date: 3/2/2009
Industry: Computer Services     Law Firm: Holland Knight     Sector: Technology

EDGEWATER OFFICE PARK WAKEFIELD, MASSACHUSETTS SECOND AMENDMENT TO LEASE Epsilon Data Management, LLC, Parties: alliance data systems corp
50 of the Top 250 law firms use our Products every day

Exhibit 10.13

EDGEWATER OFFICE PARK

WAKEFIELD, MASSACHUSETTS

SECOND AMENDMENT TO LEASE

Epsilon Data Management, LLC

Second Amendment to Lease (“Second Amendment”) dated as of October 3, 2008 between 601 Edgewater LLC, a Delaware limited liability company (“Landlord”), and Epsilon Data Management, LLC, a Delaware limited liability company, successor by merger to Epsilon Data Management, Inc., a Delaware corporation (“Tenant”).

Background

Reference is made to that certain Office Lease between Landlord and Tenant, dated July 30, 2002 (the “Original Lease”), as amended by that certain First Amendment to Lease between Landlord and Tenant, dated August 29, 2007 (the “First Amendment” and together with the Original Lease, the “Lease”) for certain premises containing 113,433 square feet of Rentable Floor Area (the “Premises”) in the building known as 601 Edgewater Drive, Wakefield, MA (the “Building”). Capitalized terms used and not otherwise defined in this Second Amendment shall have the meanings ascribed to them in the Lease.

Landlord and Tenant desire to enter into this Second Amendment to extend the Term of the Lease and to make certain other changes, all on the terms more particularly set forth in this Second Amendment.

Agreement

FOR VALUE RECEIVED, Landlord and Tenant agree as follows:

1. Term Extension. The Term of the Lease is hereby extended for an additional twelve (12) year term commencing on January 1, 2009 (the “Extension Commencement Date”) and expiring on the last day of the twelfth (12th) Extended Lease Year, which shall be the new Term Expiration Date (the “Extended Term”). Each “Extended Lease Year” shall consist of twelve (12) calendar months beginning with the Extension Commencement Date. All references to Lease Year in the Lease shall be amended to include Extended Lease Year, mutatis mutandis.

2. Improvements. (a) Tenant Work: Landlord shall reimburse Tenant for actual third-party costs incurred by Tenant to make improvements to the Premises in the amount of $1,134,330 (the “Extension Tenant Improvement Allowance”). Any portion of the Extension Tenant Improvement Allowance may be credited against the next payments due of Annual Fixed Rent by notice to such effect given by Tenant to Landlord. Any portion of the Extension Tenant Improvement Allowance not so credited shall be made available to Tenant within ninety (90) days after the date hereof. In addition, Landlord shall reimburse Tenant for actual third-party costs incurred for Tenant’s space planning for the Premises in the amount of $11,343.30 (the “Extension Space Planning Allowance”). The Extension Space Planning Allowance shall be distributed within five (5) Business Days after the date hereof. All Tenant’s construction costs for


the Premises in excess of the Extension Tenant Improvement Allowance and all design costs for the Premises in excess of the Extension Space Planning Allowance shall be paid for entirely by Tenant, and Landlord shall not provide any reimbursement therefor.

(b) Landlord Work. Landlord shall perform, at Landlord’s sole cost and expense, subject to an allowance in the amount of $2,268,660.00 (the “Base Building Allowance”), the base building work described on Exhibit C attached hereto (the “Base Building Work”). The Base Building work is in the nature of Landlord’s capital and depreciable improvements to the Building and shall commence upon the date hereof. Landlord shall use best efforts to substantially complete the Base Building Work on Of before February 1, 2009, subject to Tenant’s Delays (as defined below) and Force Majeure. All Base Building Work (including, without limitation, any Change Orders (as defined on Exhibit B attached hereto) the cost of which exceeds the Base Building Allowance shall be “Excess Work.” All Excess Work shall be performed at the sale expense of Tenant. Tenant shall pay Landlord for such Excess Work within ten (10) days following receipt of Landlord’s invoice therefor. Tenant acknowledges and agrees that (a) Landlord may be performing the Base Building Work during the first month of the Extended Term, and Tenant shall use reasonable efforts to cooperate with Landlord with respect to such work including, without limitation, providing Landlord with reasonable access to the Premises, if necessary, during performance of the Base Building Work, and (b) the Base Building Work is being performed for Landlord’s purposes only and all Base Building Work shall be the property of Landlord and shall be retained by Landlord at the expiration or earlier termination of the Extended Term.

No charges shall be imposed by Landlord for Tenant’s use of utilities, loading docks, and passenger and freight elevators during construction of Tenant improvements. Landlord agrees not to impede, hinder or interfere with the construction of Tenant improvements. Landlord agrees that deliveries may be received, without preference or priority given to Landlord’s deliveries, at any time of the day, subject to scheduling with the Landlord. Landlord shall pad the elevators.

For purposes of this Second Amendment, “Tenant’s Delays” shall include: (i) any request by Tenant that Landlord delay in the commencement or completion of the Base Building Work, (ii) any change made or requested by Tenant in any of the Base Building Work Plans (as defined on Exhibit B attached hereto), (iii) any special requirements of Tenant not in conformity with the Base Building Work Plans, (iv) the failure of Tenant to submit the Base Building Work Plans to Landlord for approval on or before October 15, 2008 (the “Base Building Work Plans Submission Deadline”), (v) any other act or Omission of Tenant or its members, managers, officers, directors, agents, servants, contractors, architects, engineers or employees, or (vi) any reasonably necessary rescheduling of the sequence of any of the Base Building Work due to any of the causes for delay referred to in the preceding clauses (i) - (v).

3. Base Operating Expenses and Taxes. Commencing as of the Extension Commencement Date, (i) the Base Operating Expenses Per Square Foot of Rentable Floor Area figure shall be equal to actual Operating Expenses for calendar year 2009, adjusted to 100% occupancy and (ii) the Base Taxes Per Square Foot of Rentable Floor Area figure shall be equal to actual Taxes for fiscal year 2009.


4. Annual Fixed Rent. Effective as of the Extension Commencement Date, the definitions of “Annual fixed Rent” in Section 1.1 of the Original Lease and Section 3 of the First Amendment shall be deleted in their entirety and replaced with the following:

 

Extended Lease Year

  

Rent Per
Rentable
Square
Foot

  

Annual Fixed
Rent

  

Monthly Rent

1-3

  

$

24.25

  

$

2,750,750.25

  

$

229,229.19

4-5

  

$

25.25

  

$

2,864,183.25

  

$

238,681.94

6-10

  

$

28.25

  

$

3,204,482.25

  

$

267,040.19

11-12

  

$

31.25

  

$

3,544,781.25

  

$

295,398.44

Annual Fixed Rent shall be due and payable in equal monthly installments as provided in Section 2.5 of the Lease.

5. Extension Options. Section 2.4.1 of the Lease is hereby deleted in its entirety and replaced with the following:

Tenant shall have the option to extend the Term for two (2) additional 5 year extension terms (each an “Extension Term”) by notice given to Landlord at least one (1) year before the Term Expiration Date. Tenant’s election shall be exercised, and Annual Fixed Rent for the Extension Term determined, as set forth below. If Tenant fails timely to exercise its option for any Extension Term, Tenant shall have no further extension rights hereunder.

Tenant’s option so to extend the Term shall be void, at Landlord’s election, if Tenant is in default at the time Tenant elects to extend the Term or at the time the Term would expire but for such extension or if more than seventy percent (70%) of the Premises are to be used as a data center during such Extension Term. Tenant shall have no right to extend the Term for less than seventy percent (70%) of the Premises. During the Extension Term, if any, all provisions of this Lease shall apply except that Tenant shall have no further option to extend the Term after the last Extension Tenn.

During the Extension Term, Tenant shall pay Annual Fixed Rent equal to the greater of (i) the Annual Fixed Rent then being paid under the Lease or (ii) ninety five percent (95%) of the then prevailing market rate for a five (5) year lease of office space in the Greater Boston, Massachusetts “Metro-North” area comparable to the Premises in terms of location within a building, finish, age, building quality and amenities for a tenant of equal size and financial strength as Tenant, under terms and conditions substantially the. same as those of this Lease as though then available for single occupancy for the Permitted Uses (or any higher and better use then being made by Tenant) in “as-is” condition or such better condition in which Tenant is required to maintain the Premises taking into account rent abatements, construction costs and other concessions and the manner, if any, in which Landlord is reimbursed for operating expenses and taxes (the “Fair Market Rent”).

Landlord shall notify Tenant of its estimate of the Fair Market Rent within ten (10) days after Tenant exercises the applicable extension option. Tenant shall have the option to accept or


reject by written notice Landlord’s estimate, or to withdraw its exercise of the extension option, in any case within fourteen (14) days following delivery of Landlord’s estimate. Tenant’s failure to respond within such period shall be deemed to constitute acceptance of Landlord’s estimate. In the event Tenant rejects Landlord’s estimate then the Fair Market Rent shall be arbitrated in accordance with the following procedure.

Each of Landlord and Tenant, within twenty (20) days after notice by Tenant disputing Landlord’s estimate of the Fair Market Rate, shall appoint as an arbitrator an MAI appraiser with at least ten (10) years experience as an appraiser of office buildings in the Greater Boston area, including first class suburban office buildings, and shall give notice of such appointment to the other party. If either Landlord or Tenant shall fail timely to appoint an arbitrator, the other may apply to the Boston office of the American Arbitration Association (“AAA “) for appointment of such an arbitrator five (5) Business Days, as such term is defined in Section 8.19, after notice of such failure to the delinquent party if such arbitrator has not then been appointed. The two arbitrators shall, within five (5) Business Days after appointment of the second arbitrator, appoint a third arbitrator who shall be similarly qualified. If the two arbitrators are unable to agree timely on the selection of the third arbitrator, then either arbitrator on behalf of both may request such appointment from the Boston office of the AAA. The arbitration shall be conducted in accordance with the commercial arbitration rules of the AAA insofar as such rules are not inconsistent with the provisions of this Lease (in which case the provisions of this Lease shall govern). The arbitrators shall be charged to reach a majority written decision in accordance with the standards for the Fair Market Rate as provided in this Section 2.4.1, within twenty (20) days after the third arbitrator is appointed, by selecting either of the final estimates of the Fair Market Rate provided by Landlord and Tenant at the commencement of the hearing. The arbitrators shall have no authority or jurisdiction to make any other determination of such amount. The cost of the arbitration (exclusive of each party’s witness and attorneys fees, which shall be paid by such party) shall be borne equally by the parties. If the AAA shall cease to provide arbitration for commercial disputes in Boston, the second or third arbitrator, as the case may be, shall be appointed by any successor organization providing substantially the same services, and in the absence of such an organization, by a court of competent jurisdiction under the arbitration act of The Commonwealth of Massachusetts.

If Landlord should delay in giving the notice which begins the valuation procedures of this Section 2.4.1, or if the process should otherwise be delayed for any reason, then such procedures shall nevertheless remain in effect and be applicable when and as invoked with respect to Annual Fixed Rent payable during the Extension Term; but until such procedures are completed, Tenant shall pay on account of Annual Fixed Rent at the rate established for Annual Fixed Rent for the last twelve (12) months of the Term (and upon Fair Market Rent being established, Tenant shall pay the same within ten (10) days of such determination, retroactively to the beginning of the Extension Term). Each party shall bear the costs of the arbitrator selected by it and shall share equally in the costs of the third arbitrator selected in accordance herewith. The parties shall adjust for over or under payments within twenty (20) days after the decision of the arbitrators is announced.


Promptly after the Annual Fixed Rent is determined for each Extension Term, Landlord and Tenant shall enter into an amendment of this Lease confirming the extension of the Term and the new rate for Annual Fixed Rent.

6. Expansion. (a) Right of First Offer. Simultaneously with any offer to lease any portion of the Building or any portion of the b


 
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