Exhibit 10.1
LEASE AGREEMENT
732 Milford Road
Merrimack, NH. 03054-4631
This Lease is made this
August 11, 2008 by and between G&H Post, LLC, a New
Hampshire limited liability company with an address at P.O. Box
385, Gilsum, NH 03448 (hereinafter called “Lessor”),
and Merrimack Services Corporation dba PC Connection Services, a
Delaware corporation with offices at 730 Milford Road
Merrimack, NH 03054-4631 (hereinafter called
“Lessee”).
1.1 In consideration of the rents,
agreements and conditions herein reserved and contained on the part
of Lessee to be paid, performed and observed, Lessor hereby leases
to Lessee, and Lessee hereby leases from Lessor, for the term
herein set forth, approximately 18,786 square feet encompassing the
building known as 732 Milford Road, Merrimack, New Hampshire.
(Hereinafter referred to as the “Premises” The Premises
are a portion of “the property” consisting of both 730
and 732 Milford Road. Lessee shall also have the right to use, in
common with other tenants, the parking areas, pedestrian walkways,
landscaped and planted areas, and other areas and facilities
intended for use by all tenants of the Property (“Common
Areas”).
2.1 The term of this Lease (the
“Term”) shall be for ten years (10), commencing on the
date of Lessor’s completion of the Tenant Improvements
(hereinafter defined) (the “Commencement Date.”) Lessor
shall construct leasehold improvements in accordance with plans and
specifications prepared by Sheerr McCrystal Palson Architecture,
Inc. (“Tenant Improvements”). The Plans shall be
subject to Lessee’s approval. Once Lessee has approved the
Plans, Lessor shall construct the Tenant Improvements. Lessor shall
not be obligated to expend more than $15.33/SF on Tenant
improvements, and Lessor shall competitively bid all such
improvement work and make available to Lessee for its review and
approval all information reasonably requested by Lessee to verify
such costs. Any cost approved by Lessee in constructing the Tenant
Improvements in excess of $15.33/SF shall be paid by Lessee. The
allocation of funds is defined by attachment “A” to
this Lease. The parties agree that attachment A will be replaced by
a final attachment “A” when the costs are
final.
2.2 Lessor agrees to use reasonable
efforts to expedite the Tenant Improvements. The Tenant
Improvements shall be deemed complete (and shall serve as the lease
commencement date) when a final certificate of occupancy has been
issued and the Premises are ready for occupancy by Lessee as
certified by Lessor’s architect with the exception of minor
items which can be fully completed without material interference
with Lessee and other items which because of the season or weather
or the nature of the item are not practicable to do at the time,
provided that none of said items is necessary to make the Premises
tenantable for the permitted uses.
2.3 Lessor shall permit Lessee
access for installing equipment and furnishings in the Premises
prior to the Term if it can be done without material interference
with completion of the Tenant Improvements. All construction work
required or permitted by this Lease shall be done in a good and
workmanlike manner and in compliance with all applicable laws and
all lawful ordinances, regulations and orders of governmental
authority. Either party may inspect the work of the other at
reasonable times and promptly shall give notice of observed
defects.
2.4 Lessee’s obligation to pay
rent under Section 3 below shall commence on the Commencement
Date which is July 25, 2008.
1
3.1 Lessee shall pay to Lessor rent
for the Premises, in the amount provided in Section 3.2, in
advance, on the first day of each calendar month during the Term,
at P.O. Box 385, Gilsum, NH 03448 (or at such other place as may be
designated in writing by Lessor).
3.2 The base rent (“Base
Rent”) for year 1 of the term hereof shall be the sum of
$12.00 per square foot or $225,432 per year payable monthly, in
advance, in installments of $18,786 (the "Base Rent"). The Base
Rent for subsequent years shall be subject to adjustment to reflect
increases to the United States Bureau of Labor Statistics Consumer
Price Index, All Items, All Urban Consumers,
Boston-Cambridge-Quincy, MA-NH MSA or such other renamed local
index covering “All Items” for the Boston,
Massachusetts metropolitan statistical area (the
“Index”), but such adjustments shall not exceed an
increase higher than 5.0% for any given year. Each one
(1) year anniversary of the commencement date of the Lease
will be referred to as the adjustment date (each an
“Adjustment Date”). Base Rent adjustment shall be as
follows:
3.2.1 As of each Adjustment Date ,
the Base Rent shall be adjusted as provided in paragraph 3.2 to
reflect changes in the Index as follows:
(1) For the first annual adjustment
(commencing on the first day following the Expiration of the first
year of the term of this Lease), the basis for computing such
adjustment shall be the Index most recently published prior to the
beginning of the first year of the term (“Beginning
Index”). If the Index most recently published prior to the
first Adjustment Date (“Extension Index”) has increased
over the Beginning Index, the Base Rent for one-year period
commencing as of such first Adjustment date shall be the result
obtained by multiplying the annual Base Rent in effect on the day
of the Adjustment Date (i.e. the annual rental for year one by a
fraction, the numerator of which is the Extension Index and the
denominator of which is the Beginning Index).
(2) For all subsequent annual
adjustments, the Base Rent shall be adjusted in the same manner as
that for the first annual adjustment provided; however, that the
rental base shall be the rental in effect just prior to the then
applicable Adjustment Date, the Extension Index for the preceding
period shall be the Beginning Index and the Extension Index shall
be the Index most recently published prior to the then applicable
Adjustment Date.
(3) If for any Adjustment Date the
Index most recently published following the Adjustment Date has not
increased over, or has decreased from, the Beginning Index for that
period, no escalation in Base Rent shall be required on that
Adjustment Date, and the Base Rent shall remain at it’s then
current rate until the next Adjustment Date. At no time, will the
escalation in Base Rent exceed 5%.
If the Index is changed in any
manner, including without limitation, a change in the base year or
month, the Index shall be converted in accordance with the
conversion factor published by the United States Department of
Labor, Bureau of Labor Statistics. If the Index is discontinued or
revised during the term of this Lease, such other government index
or computation with which it is replaced shall be used in order to
obtain substantially the same result as would be obtained if the
Index had not been discontinued or revised. If the parties shall be
unable to agree upon a successor index, the Parties shall refer the
choice of a successor index to arbitration in accordance with the
rules of the American Arbitration Association.
3.3 In the event that any monthly
installment of rent accruing under this Lease shall not be paid
when due, Lessee shall pay to Lessor (i) a late charge of
$500, due as of the due date of the monthly installment, and
(ii) any bank penalty or late charges and mortgage interest
incurred by Lessor because of said delayed payment of rent, and, in
the event that said delay in payment of rent becomes a default
under Section 14, then the delayed payment of rent shall bear
interest from the date said delayed payment becomes a default at a
rate of one percent (1%) per annum over the prime rate (the
base rate on corporate loans at large U.S. money center commercial
banks) as published in the Money Rates section of the Wall Street
Journal or other equivalent publication if the Wall Street Journal
no longer publishes such information , at the time when said rent
payment is due.
2
3.4 Lessee to Pay Proportionate
Share of Taxes. Lessee shall pay as additional rent, its
Proportionate Share (as defined in Section 3.9 below) of all
amounts payable by Lessor with respect to real estate taxes due
with respect to the Property, including, without limitation, ad
valorem taxes and assessments, general and special taxes and
assessments, taxes on real estate rental receipts, or any other tax
imposed upon or levied against real estate, or upon owners of real
estate as such rather than persons generally, extraordinary as well
as ordinary, foreseeable and unforeseeable, including taxes imposed
on leasehold improvements which are assessed against Lessor,
payable with respect to or allocable to the Property together with
the reasonable cost (including fees of attorneys, consultants and
appraisers) of any negotiation, contest or appeal pursued by Lessor
in an effort to reduce any such tax, assessment or charge, all of
the above being collectively referred to herein as
“Taxes.” “Taxes” shall not include any
income, profit, business or gross receipt tax or capital levy, nor
any inheritance, estate, succession, transfer, gift, franchise or
corporation tax levied or imposed upon Lessor, nor any real estate
transfer tax, mortgage lien tax, documentary stamp tax, recording
fees or the like.
3.5 Payment. Lessee’s
Proportionate Share of Taxes shall be paid by Lessee in monthly
installments on the date Base Rent is paid. Monthly payments shall
be based on estimates made by Lessor from time to time. Lessor may
reestimate Lessee’s proportionate share of Taxes and
thereafter adjust Lessee’s monthly installments to reflect
more accurately Lessee’s Proportionate Share of Taxes. Within
one hundred twenty (120) days after Lessor’s receipt of
tax bills, Lessor will notify Lessee of the amount of Taxes for the
tax year in question and the amount of Lessee’s Proportionate
Share thereof. Any overpayment or deficiency in Lessee’s
payment of its proportionate share of Taxes shall be adjusted
between Lessor and Lessee, and Lessor and Lessee hereby agree that
Lessee shall pay Lessor or Lessor shall credit to Lessee’s
account (or, if such adjustment is at the end of the Term, Lessor
shall pay Lessee), as the case may be, within fifteen
(15) days of the aforesaid notice to Lessee, such amounts as
may be necessary to effect such adjustment. Failure of Lessor to
provide such notice within the time prescribed shall not relieve
Lessor or Lessee of their respective obligations hereunder. Lessee
shall not be responsible for any interest, fines or penalties due
to the taxing authorization arising out of Lessor’s failure
to pay the Taxes when due, provided that Lessee has complied with
its obligations under this Section 3.
3.6 Management and Operation of
Common Areas. Lessee will operate and maintain, or will cause to be
operated and maintained, the Common Areas in a good, clean, and
neat condition, and to cause snow to be removed from the parking
lot and walkways all in a reasonable manner deemed by Lessor to be
appropriate and in the best interests of the Property, and
consistent with other similar first class office buildings.
Notwithstanding the foregoing, if Lessee does not continue to lease
the building located at 730 Milford Road, Merrimack, New Hampshire,
at anytime during the term of this Lease, then Lessor will operate
and maintain the Common Areas as set forth in this
Section 3.6. Lessor will have the right (i) to establish,
modify and enforce rules and regulations with respect to the Common
Areas which rules are commercially reasonable for Property of
similar size in similar locations; (ii) to enter into, modify
and terminate easement and other agreements pertaining to the use
and maintenance of the Common Areas, (iii) to temporarily
close all or any portion of the Common Areas to such extent as may,
in the opinion of Lessor, be necessary to prevent a dedication
thereof or the accrual of any rights to any person or to the public
therein; and (iv) to close temporarily any or all portions of
the Common Areas which may in the opinion of Lessor, be necessary
to perform Lessor’s repairs or maintenance; and (v) to
do and perform such other acts in and to said areas and
improvements as, in the exercise of good business judgment, Lessor
shall determine to be advisable and in the best interest of the
Property. In no event shall Lessor alter the Common Areas in such a
way as to reduce the number of parking spaces available to Lessee
below or to otherwise materially interfere with the operation of
Lessee’s business.
3.7 Expense of Common Areas and
Operating Costs. Lessee will pay directly the Operating Costs (as
defined in Section 3.9 below) with the exception of Taxes (see
Section 3.4 and 3.5) and Lessor’s insurance (see
Section 10 and below). Notwithstanding the foregoing, if
Lessee does not continue to lease the building located at 730
Milford Road, Merrimack, New Hampshire at any time during the term
of this Lease, then Lessor will pay directly Operating Costs as set
forth in this Section 3.7 and Lessee will pay to Lessor, as
additional rent, its Proportionate Share (as defined in
Section 3.9) of Lessor’s Operating Costs on the same
terms as provided in this Section 3.7 for insurance costs.
With respect to insurance, Lessor may estimate Lessee’s
monthly installments
3
and thereafter adjust Lessee’s monthly
installments to reflect more accurately Lessor’s insurance
cost. Within one hundred twenty (120) days (or such additional
time thereafter as is reasonable under the circumstances) after the
end of each twelve (12) month period, Lessor shall deliver to
Lessee a copy of Lessor’s insurance bill(s) for such twelve
(12) month period and the monthly installments paid or payable
shall be adjusted between Lessor and Lessee, and Lessee shall pay
Lessor or Lessor shall credit Lessee’s account (or, if such
adjustment is at the end of the Term, Lessor shall pay Lessee), as
the case may be, within fifteen (15) days of receipt of such
bill, such amounts as may be necessary to effect such
adjustment.
3.8 “Operating Costs”
Defined. The term “Operating Costs” means all costs and
expenses reasonably incurred by or on behalf of Lessor in
operating, managing, insuring, securing and maintaining the
Property and the common areas pursuant to Section 3.6
including, but not limited to, all costs and expenses of operating,
maintaining, repairing, lighting, signing, cleaning, painting,
striping, policing and security of the Common Areas; alarm and life
safety systems; insurance, including, without limitation, liability
insurance for personal injury, death and property damage, all-risks
casualty insurance (including coverage against fire, flood, theft
or other casualties), worker’s compensation insurance or
similar insurance covering personnel, fidelity bonds for personnel,
insurance against liability for assault and battery, defamation and
claims of false arrest occurring on and about the Common Areas, the
costs and expenses of maintenance of all exterior glass;
maintenance of sprinkler systems; removal of water, snow, ice,
trash and debris; installing and renting of signs for the Property
as a whole; fire protection; maintenance and repair of utility
systems serving the Property, including, but not limited to, water,
sanitary sewer and storm water lines and other utility lines, pipes
and conduits; costs and expenses of repair or replacement of
awnings, paving, curbs, walkways, landscaping, drainage, pipes,
ducts, conduits and similar items, lighting facilities; costs and
expenses of planting, replanting, replacing and displaying flowers,
shrubbery and planters; costs of providing light and power to the
Common Areas; cost of water services, if any, ; parcel pick-up and
delivery services. Notwithstanding anything to the contrary in this
Section 3.9, Operating Costs shall not include any costs
incurred for repairs or replacements which would be classified
under the Internal Revenue Code as “capital” in nature
(except for items built or installed at Lessee’s request
and/or any repairs occasioned by the act or neglect of Lessee, its
assignees, sub lessees, servants, agents, employees, invitees,
licensees or concessionaires).
3.9 “Proportionate
Share” defined: For purposes of this Lease, Lessee’s
Proportionate Share shall equal the rentable area of the Premises
divided by the rentable area of all space available to lease on the
Property from time to time. Lessee’s Proportionate Share
shall be modified proportionately in the event Lessee occupies
additional space within.
4.1 The Premises shall be used for
office, storage, retail uses, telemarketing and storage of
inventory.
4.2 Lessee shall not use or occupy
or permit the Property and/or Premises to be used or occupied, nor
do or permit anything to be done in or on the Property and/or
Premises, in a manner which will in any way violate any certificate
of occupancy affecting the Property and/or Premises, or make void
or void able any insurance then in force with respect thereto,
which will make it impossible to obtain fire or other insurance
required to be furnished by Lessor hereunder, or which will cause
or be likely to cause structural damage to the building or any part
thereof, or which will constitute a public or private nuisance, and
shall not use or occupy or permit the Property and/or Premises to
be used or occupied in any manner which will violate any present or
future laws or regulations of any governmental
authority.
5.1 Repairs To Be Made By Lessor.
Lessor, at its expense, will make, or cause to be made, structural
repairs to exterior walls, structural columns, structural girders,
roof, roof deck and roof penetrations and structural
floors
4
which collectively enclose the Premises
(excluding, however, all doors, door frames, storefronts, windows
and glass). Lessor shall not be required to make any repairs to
items built or installed at Lessee’s request and/or any
repairs occasioned by the act or neglect of Lessee, its assignees,
sub lessees, servants, agents, employees, invitees, licensees or
concessionaires. If the Premises should become in need of repairs
required to be made by Lessor hereunder, Lessee shall give
immediate written notice thereof to Lessor, and Lessor shall not be
responsible in any way for failure to make any such repairs until a
reasonable time shall have elapsed after the giving of such written
notice.
5.2 Repairs To Be Made By Lessee.
All repairs to the Premises, or any installations, equipment or
facilities therein, other than those repairs required to be made by
Lessor pursuant to Section 5.1, shall be made by Lessee at its
expense. Without limiting the generality of the foregoing, Lessee
will keep the interior of the Premises, together with all
electrical, plumbing and other mechanical installations therein and
the heating ventilating and air-conditioning system, in good order
and repair and will make all replacements from time to time
required thereto at its expense; provided, however, that Lessee
shall not be required to make any repairs which are capital in
nature (other than to items built or installed at Lessee’s
request and/or any repairs occasioned by the act or neglect of
Lessee, its assignees, sub lessees, servants, agents, employees,
invitees, licensees or concessionaires, as set forth in
Section 5.1), the cost of which shall be borne by Lessor and
performed by Lessor. Lessee will surrender the Premises at the
expiration of the Term or at such other time as it may vacate the
Premises in as good condition as when received, excepting
depreciation caused by ordinary wear and tear, damage by Casualty,
unavoidable accident or Act of God. Any damage or injury sustained
by any person because of mechanical, electrical, plumbing or any
other equipment or installations, whose maintenance and repair
shall be the responsibility of Lessee, shall be paid for by Lessee,
and Lessee hereby agrees to indemnify and hold Lessor harmless from
and against all claims, actions, damages and liability suffered by
Lessor in connection therewith, including, but not limited to
reasonable attorneys’ and other professional fees.
5.3 Damage to Premises. Lessee will
repair promptly at its expense any damage to the Premises, and,
upon demand, shall reimburse Lessor (as Additional Rent) for the
reasonable cost of the repair of any damage elsewhere in the
Property, caused by Lessee, its agents, servants, employees, or
contractors, invitees or customers. If Lessee shall fail to
commence such repairs within twenty (20) days after notice to
do so from Lessor, Lessor may make or cause the same to be made and
Lessee agrees to pay Lessor promptly upon Lessor’s demand, as
Additional Rent. Lessee shall not be responsible for any damage
caused by Lessor’s gross negligence or misconduct.
|
6.
|
Right to Alter
and Improve
|
6.1 Lessee may not make any
additions and alterations, structural or otherwise, to the Premises
without prior approval in writing from the Lessor . In any case
where any addition, alteration or improvement would require the
consent of any institution which holds any mortgage, Lessee shall
also procure such consent before undertaking such addition,
alteration or improvement.
6.2 All work done in connection with
any addition, improvement or alteration shall be done in a good and
workmanlike manner and in compliance with the building and zoning
laws and with all other laws, ordinances, orders, rules,
regulations, and requirements of all federal, state and municipal
governments and the appropriate departments, commissions, boards,
and offices thereof, and in accordance with the orders, rules and
regulations of the board of fire underwriters or any other body,
now or hereafter constituted, exercising similar functions and
Lessee shall procure, at its own cost, certificates of occupancy
and other certificates and permits if required by law.
6.3 Lessee will not permit any
mechanic’s, materialmen’s or other liens to stand
against the property for work or material furnished to Lessee;
provided that Lessee shall have the right to contest the validity
of any lien or claim. If Lessee has not caused such lien or liens
to be dismissed within ninety (90) days of notice
thereof;
5
Lessee shall post a bond to ensure that upon
final determination of the validity of such lien or claim and
Lessee shall immediately pay any judgment rendered against it, with
all proper costs and charges, and shall have such lien released
without cost to Lessor.
6.4 Changes and Additions to
Property. Lessor reserves the right at any time and from time to
time to (a) make or permit changes or revisions to the
Property including additions to, subtractions from, arrangements
of, alterations of, modifications of; or supplements to, the
building areas, walkways, driveways, parking area, or other Common
Areas, b) construct improvements and to make alterations thereof or
additions thereto and to build additional stories on or in any such
building(s) provided, however, that no such changes, rearrangements
or other construction have a material adverse impact on the
operation of Lessee’s business at the Premises.
7. Removal
of Improvements. With the exception of that machinery and equipment
and personal property referenced in Section 8.1 and 8.2 below,
all permanent light fixtures, paneling and other wall coverings,
partitions, insulation, water system, carpets and wall to wall
floor coverings, air conditioning, heating, ceiling tiles and all
other permanent improvements which are installed by Lessee and
enhance the Premises shall become the property of Lessor at the
expiration of this Lease, or at its earlier termination for any
cause herein provided for; provided, however, if Less