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GMCR » Topics » Improvements

This excerpt taken from the GMCR 10-K filed Dec 13, 2007.

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.

 

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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.

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