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Exhibit
10.13
EDGEWATER OFFICE
PARK
WAKEFIELD,
MASSACHUSETTS
FIRST AMENDMENT TO
LEASE
Epsilon Data Management,
Inc.
First Amendment to Lease
(“First Amendment”) dated as of August 29, 2007
between 601 Edgewater LLC, a Delaware limited liability company
(“ Landlord” ), and Epsilon Data Management,
LLC, a Delaware limited liability company (
“Tenant” ).
Background
Reference is made to a lease
dated July 30, 2002 (the “Lease” ) between
Landlord and Tenant for certain premises containing 96,726 square
feet of Rentable Floor Area (the “Original
Premises” ) in the building known as 601 Edgewater Drive,
Wakefield, Massachusetts (the “ Building” ).
Capitalized terms used and not otherwise defined in this First
Amendment shall have the meanings ascribed to them in the
Lease.
Landlord and Tenant desire to
enter into this First Amendment to add certain expansion space to
the Original Premises on the terms more particularly set forth in
this First Amendment.
Agreement
FOR VALUE RECEIVED, Landlord
and Tenant agree as follows:
1. Expansion .
Effective as of the Expansion Commencement Date (defined below),
Landlord hereby agrees to lease to Tenant and Tenant hereby agrees
to lease from Landlord an additional 16,707 square feet of Rentable
Floor Area (the “Additional Premises” ) as shown
on the floor plan attached hereto as Exhibit A .
Tenant’s lease of the Additional Premises shall be on all of
the same terms and conditions as the Original Premises, except as
otherwise specified herein. Effective as of the Expansion
Commencement Date, the Additional Premises shall be made a part of
the Premises under the Lease and Tenant shall be leasing a total of
113,433 square feet of Rentable Floor Area in the Building.
Landlord shall deliver the Additional Premises to Tenant on the
Expansion Commencement Date free of all tenants and occupants
(including their personal property and trade fixtures), in broom
clean condition, good working order condition and repair
(including, but not limited to, all building, mechanical and
life-safety systems serving same) and in compliance in all respects
with applicable laws, codes, ordinances, rules and
regulations.”
(a) Annual Fixed Rent for
the Additional Premises . Commencing on the Expansion
Commencement Date and continuing through the Term Expiration Date,
Tenant shall pay Annual Fixed Rent for the Additional Premises in
the amount per rentable square foot set forth below and otherwise
on the same terms and conditions as the Original
Premises.
(b) Additional Rent .
Commencing on the Expansion Commencement Date and continuing
through the Term Expiration Date, payments of Additional Rent for
Landlord’s Operating Expenses and Taxes shall be determined
and paid at the times and in the manner set
forth in Sections 2.5 and 2.6 of
the Lease (using the new figures for Base Operating Expenses and
Base Taxes provided under this First Amendment). From and after the
Expansion Extension Date, however, Tenant shall pay for all
electricity consumed in the Additional Premises as and to the
extent set forth in Section 2.7 of the Lease and any
other additional charges incurred under the Lease for the
Additional Premises other than Additional Rent for Landlord’s
Operating Expenses and Taxes.
(c) As-Is . Subject to
Landlord’s obligations set forth in this First Amendment and
the Lease, the Additional Premises are being leased in their
“as-is” condition without representation or warranty by
Landlord, and Landlord shall not be required to perform any work in
connection with Tenant’s occupancy of the Additional Premises
during the Term.
(d) Expansion Commencement
Date . The “Expansion Commencement Date” shall be
March 1, 2008, or if later, the date of substantial completion
(as defined below) of Tenant’s Expansion Construction (as
defined on Exhibit B), provided, however, that the extension of the
Expansion Commencement Date beyond March 1, 2008 shall be
applicable only if and to the extent that the completion of
Tenant’s Expansion Construction is delayed beyond
March 1, 2008 as a result of Force Majeure, as such term is
defined in Section 4.2 of the Lease, and/or delays,
caused by the action or inaction of Landlord, including but not
limited to Landlord’s failure to deliver the Additional
Premises as required under this First Amendment on or before
November 30, 2007, and provided that as a condition of such
extension (except for an extension based on Landlord’s
failure to deliver as aforesaid) Tenant shall give notice to
Landlord upon earning of the event of Force Majeure or Landlord
delay and Tenant shall use all commercially reasonable efforts to
substantially complete Tenant’s Expansion Construction as
soon as possible thereafter. As used herein, Tenant’s
Expansion Construction shall be “substantially
complete” or “substantially completed” when
Tenant obtains a certificate of occupancy for the Premises allowing
the use and occupancy thereof as contemplated in the Lease^ if
necessary, and all of Tenant’s Expansion Construction has
been completed except for so-called “punch-list items”
which shall consist of, for example, minor work, adjustments or
installations, the completion of which will not materially
interfere with Tenant’s use and occupancy of the Premises. If
Landlord has not delivered the Additional Premises to Tenant on or
before December 15, 2007, Tenant shall have the right at its
sole election to terminate this First Amendment upon written notice
to Landlord whereupon this First Amendment shall be of no further
force or effect.
2. Tenant Improvement
Allowance . Landlord shall reimburse Tenant for actual
third-party costs incurred by Tenant to make improvements to the
Original Premises and the Additional Premises in an amount up to
$417,675 (the “Tenant Improvement Allowance”), such
reimbursement to be paid in accordance with Exhibit B
attached hereto. Tenant may use up to $250,605 of the Tenant
Improvement Allowance to assist with Tenant’s actual
third-party costs incurred by Tenant in connection with moving,
cabling, wiring, furniture, telephone systems and other
building-related items or to offset Annual Fixed Rent during the
first 7 months following the Expansion Commencement Date. In
addition, Landlord shall reimburse Tenant for actual third-party
costs incurred by Tenant for Tenant’s space planning for the
Additional Premises in an amount up to $2,506.05 (the “Space
Planning Allowance”).
3. Annual Fixed Rent .
Commencing on the Expansion Commencement Date, Annual Fixed Rent
for the Additional Premises shall be due and payable in equal
monthly installments as provided in Section 2.5 of the
Lease as follows:
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Time Period
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Rent Per Rentable
Square Foot |
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Annual Fixed Rent |
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Monthly Rent |
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Expansion Commencement Date to the day
before the Second Anniversary thereof.
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$ |
23.00 |
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$ |
384,261 |
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$ |
32,021.75 |
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Second Anniversary of Expansion
Commencement Date to day before Fourth Anniversary of Expansion
Commencement Date.
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$ |
24.00 |
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$ |
400,968 |
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$ |
33,414 |
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Fourth Anniversary of Expansion
Commencement Date to April 30, 20l3
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$ |
25.00 |
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$ |
417,675 |
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$ |
34,806.25 |
4. Base Operating Expenses
and Taxes . Commencing as of the Expansion 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 2007, which amount shall be “grossed-up”
to a level of 95% occupancy as to those costs that vary with
occupancy in the event the Building occupancy is less than 95% on
average in any given year, and (ii) the Base Taxes Per Square
Foot of Rentable Floor Area figure shall be equal to actual Taxes
for fiscal year 2008, which amount will be “grossed up”
to reflect a real estate tax assessment based on a fully-completed
and 100% leased and occupied Building.
5. Additional Right of
First Offer .
Simultaneously with any offer
to lease all or any portion of the second (2nd) or third
(3rd) floors of the Building (the “601 ROFO
Space”) or any portion of the building located at 701
Edgewater Drive, Wakefield, Massachusetts (the “701
Building” and collectively with the 601 ROFO Space, the
“ROFO Space”), to any third party, Landlord shall offer
to lease such space (the “Amendment Offered Space”) to
Tenant at the Amendment Expansion Market Rent (defined below) -and
except as otherwise specified herein on the same terms and
conditions as this Lease, provided however, that (a) if there
are less than three (3) Lease Years left in the
Term
at the time Landlord is offering to
lease the Amendment Offered Space, Tenant may lease the Amendment
Offered Space only if Tenant has, and irrevocably exercises, an
Extension Option set forth in Section 2.4.1 of the
Lease for the Premises so that the Amendment Offered Space shall be
leased by Tenant for at least a three (3) year term,
(b) the Amendment Offered Space shall be leased by Tenant in
its “as is” (but vacant, broom-clean and in good order
and repair and operating condition and in compliance with
applicable laws, codes, ordinances, rules and regulations, except
for any Tenant work) with such tenant improvement allowances, free
rent, or other concessions as are then being offered generally for
comparable space in comparable properties in the
“Metro-North” area, (c) the figures for Base
Operating Expenses and Base Taxes applicable to the Amendment
Offered Space shall be the actual amounts (adjusted to 95%
occupancy, and to 100% fully-built, leased and occupied,
respectively) for the calendar year and fiscal year, respectively,
in which the Amendment Offered Space is to be delivered to Tenant,
and (d) Tenant may elect to lease either the Amendment Offered
Space or, at Tenant’s option, the entire ROFO Space to the
extent that the same is not then under lease to other tenants or
the subject of active lease negotiations following an offer to
Tenant under this Section 5. Any tenant or occupant of
the Amendment Offered Space from time to time, any affiliate
thereof, or Metcalf & Eddy or ah affiliate thereof to the
extent of its rights to lease a portion (approximately 3,000 square
feet) of such space as of the date hereof shall not be considered a
“third-party” for purposes of this
Section 5 . and Landlord shall be free to lease the
Amendment Offered Space to any of the foregoing without offering
the same to Tenant first.
Any offer by Landlord under
this Section 5 may be accepted by Tenant by written
notice given within ten (10) Business Days, as defined in
Section 8.19 of the Lease, of delivery of
Landlord’s offer. If Tenant does not timely accept
Landlord’s offer, then Tenant’s rights under this
Section 5 shall be deemed conclusively waived by Tenant
with respect to the next lease of the Amendment Offered Space
provided that the next such lease of the Amendment Offered Space is
entered into within nine (9) months after Tenant’s
failure to accept Landlord’s offer, and . Landlord shall have
no further obligation to offer the Offered Space to Tenant before
next leasing the same to a third party occurring within such nine
(9) month period, but this Section 5 shall apply
to any other lease of ROFO Space. In the event that Tenant accepts
any offer by Landlord under this section, the leasing of such
Amendment Offered Space and the rent therefor shall be documented
by an amendment to the Lease. Tenant’s rights under this
Section 5 as to that particular accepted Amendment
Offered Space shall be rendered void, at Landlord’s election,
if Tenant is in default beyond any applicable notice or grace
period at the time Landlord offers any space to a third party or at
the time Tenant’s lease of any Offered Space under this
Section 5 would otherwise commence.
“ Amendment
Expansion Market Rent” shall mean the then prevailing
market rate for a five (5) year lease of office space in the
greater “Metro-North” area comparable to the Amendment
Offered Space 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 on which Tenant shall have the
right to lease the Amendment Offered Space. If Landlord and Tenant
have not agreed, in writing, on the Amendment Expansion Market Rent
for the Offered Space within fourteen (14) days after Tenant
accepts Landlord’s offer, then at the request of either party
Amendment Expansion Market Rent for the Amendment Offered Space
shall be determined in accordance with the arbitration procedure
set forth in Section 2.4.1 of the Lease for the
determination of Fair Market Rent.
If Tenant exercises its
rights under this Section 5. Landlord shall use
reasonable efforts to deliver the Amendment Offered Space as set
forth in Landlord’s offer. Landlord’s failure to
deliver, or delay in delivering, all or any part of the Amendment
Offered Space by reason of Force Majeure, as such term is defined
in Section 4.2 of the Lease, and including continued
occupancy of any such Amendment Offered Space by any occupant
thereof shall not give rise to any liability of Landlord, shall not
alter Tenant’s obligation to accept such Amendment Offered
Space when delivered, shall not constitute a default of Landlord,
and shall not affect the validity of the Lease; provided, however,
that if Landlord shall fail to deliver the Amendment Offered Space
within ninety (90) days following the date set forth in
Landlord’s offer, Tenant shall have the right at its sole
election to terminate its exercise of its rights thereto upon
written notice to Landlord whereupon such exercise shall be of no
further force or effect.
This Section 5
shall not be construed to grant to Tenant any rights or interest in
any space in the Building and any claims by Tenant alleging a
failure of Landlord to comply herewith shall be limited to claims
for monetary damages and Tenant may not assert any rights in any
space nor file any lis pendens or similar notice with respect
thereto.
6. Notices and
Tenant’s Authorized Representative . From and after the
date of this First Amendment, Tenant’s Authorized
Representative and notice therefore shall be as follows and the
following shall be added as an additional Tenant notice party for
all notices and communications to Tenant pursuant to the
Lease:
Epsilon
601 Edgewater
Drive
Mailstop 5/M06
Wakefield, MA
01880
Attention: Laura Vosburgh
Marshall
Senior Director,
Facilities & Real Estate
And to:
ADS
17655 Waterview
Parkway
Dallas, TX 75252
Attention: General
Counsel
7. Brokerage . Tenant
represents an
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