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EXHIBIT 10.20
SUBLEASE
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This Sublease effective as of the 20th day of May, 1999, between XXXXXXXX,
XXXXXXX & XXXXXX, LLP, a Massachusetts limited liability partnership formerly
known as Xxxxxxxx, Xxxxxxx & Xxxxxx, ("SUB-LANDLORD") whose address is 000
Xxxxxx Xxxxxx, Xxxxxx, XX 00000 and STUDENT ADVANTAGE, INC., a Massachusetts
corporation ("SUB-TENANT"), whose address is 000 Xxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, who agree as follows:
1. Recitals. This Sublease is made with reference to the following facts
and objectives:
a. 000 Xxxxxx Xxxxxx Limited Partnership ("Master Landlord") and
Sub-landlord, as tenant, entered into that certain written lease dated February
26, 1986, as amended, (the "Master Lease") regarding a portion of that certain
real property with an address of 000 Xxxxxx Xxxxxx, Xxxxxx, XX 00000
("Building"). A copy of the executed Master Lease has been made available to
Sub-tenant at all times hereto, upon a strict confidentiality basis and is
attached hereto as Exhibit 1a.
b. Sub-tenant desires to sublet the entire third floor (approximately
12,000 square feet, more or less) of the Building referenced in the Master Lease
from Sub-landlord, pursuant to the terms and conditions both contained in this
Sublease and in the Master Lease, and its Rules and Regulations.
c. Master Landlord consents to this Sublease, subject to the terms and
conditions of the Master Lease, as evidenced by the Consent to Sublease attached
hereto as Exhibit 1c.
2. Premises:
Sub-landlord hereby demises and sublets to Sub-tenant and Sub-tenant hereby
takes and hires from Sub-landlord the entire third floor of he Building as shown
on Exhibit A (the "Premises") together with the exclusive use of the third floor
hallway, and restrooms together with the right to use the stairway and the
common areas.
3. Length of Occupancy/Term:
a. Forty-seven (47) months commencing June 1, 1999 and terminating
April 30, 2003, but only so long as Sub-landlord is a tenant under the Master
Lease.
4. Base Rent and Additional Rent:
Sub-tenant shall pay Base Rent and other below defined Additional Rent
for the Premises as follows: Sub-tenant shall pay Base Rent of $22.00 per square
foot for the Term, to wit: Two Hundred Sixty-four Thousand Dollars per annum,
payable in equal monthly installments of Twenty-two Thousand ($22,000) Dollars.
Furthermore, Sub-tenant specifically
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agrees to pay its pro-rata portion based upon rentable square feet of the
Premises to rentable square feet of the Building of increases over the base year
of "Landlord's Expenses" as defined in Article III of the Master Lease (and
otherwise defined in the Master Lease) and Landlord's Tax Expense, if any, as
defined in the Master Lease, which costs are payable as Additional Rent, on the
first day of each calendar month and all deemed to be collectible as "Rent". The
base year for Landlord's Expenses shall be calendar year 1999, which shall be
estimated for 1999 and collected as Additional Rent as of January 1, 2000. The
Base Year for Landlord's tax expense shall be fiscal year 2000. The real estate
tax adjustments shall be collected as Additional Rent as of June 1, 2000. The
Sub-tenant also specifically agrees to pay all such sums of Rent in a timely
manner, as required by the Master Lease or shall be subject to the same
penalties of late charge and/or interest as defined in the Master Lease.
5. Electricity:
The premises are separately metered, and the Sub-tenant shall be
responsible for its usage of electricity as billed to it by Boston Edison.
6. Signage:
Sub-landlord and Master Landlord shall permit INTERIOR "marque"
signage on the first floor directory, according to the rules provided for Tenant
signage within the Master Lease. This shall specifically EXCLUDE any signage at
the entrance to the outside of the Building or at lobby entrance.
7. Use:
Sub-tenant shall use the Premises for general office and
administrative uses and no other. Sub-tenant shall pay for all keys and cards
required for access to the Premises. The Premises shall be delivered as of the
Commencement Date in broom-clean condition with all existing furniture in place.
The use of such furniture shall remain free of charge during the Term.
8. Provisions Constituting Sublease:
This Sublease is subject to ALL, except as set forth in 8(b) below of
the terms and conditions of the Master Lease attached hereto and incorporated
herein by reference. Sub-tenant shall not commit or permit to be committed on
the Premises, any act or omission which shall violate any term or condition of
the Master Lease. This provision shall not be construed to extend privity
between Master Landlord and Sub-tenant hereunder. Sublandlord shall use its
reasonable efforts to ensure Master Landlord will perform its obligations under
the Master Lease. Furthermore, Sub-landlord shall not be in default hereunder or
be liable for any damages directly or indirectly resulting from, nor shall the
Base Rent herein reserved be abated by reason of (1) the installation, use or
interruption of use of any equipment in connection with the furnishing of any of
the services supplied by Master Landlord; to wit: (i) electricity for lighting
and the operation of customary office machines, (ii) heat and air conditioning
to the extent reasonably
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required for the comfortable occupancy by Sub-tenant in its use of the Premises
during the period from 8 a.m. to 6 p.m. on weekdays (except holidays), or such
shorter period as may be prescribed by any applicable policies or regulations
adopted by any utility or governmental agency, (iii) lighting replacement (for
building standard lights), (iv) restroom supplies, and (v) security guards and
services and daily janitor service during the times and in the manner that such
services are customarily furnished in comparable office buildings in the area,
(2) by the making of necessary repairs or improvements to the Premises or to the
Building, or (3) the limitation, curtailment, rationing or restrictions on use
of water, electricity, gas or any other form of energy serving the Premises or
Building, except to the extent that the base rent is abated pursuant to the
terms of the Master Lease. If base rent is abated pursuant to the said Master
Lease, Sub-tenant's base rent shall be abated proportionately. Sub-landlord
shall not amend the Master Lease to adversely affect Sub-tenant's rights.
(b) The following articles, sections of and exhibits to the Master
Lease are not incorporated herein except to the extent that any provisions set
forth therein are referred to in this Sublease:
(i) Sections 10.13, 10.15, 10.16, 10.17, 10.18, 10.19, 10.20,
10.21 and 10.22 and Article VI.
(ii) The following paragraphs of the First Amendment of Lease:
Xxxxxxxxxx 0, 0, 0, 0 xxx 00.
(xxx) The following paragraphs of the Second Amendment of Lease:
Paragraphs 4 and 7.
(iv) The following paragraphs of the Third Amendment of Lease:
Paragraphs 4, 8 and 9.
(v) The following paragraph of the Fourth Amendment of Lease:
Paragraph 4.
(vi) The following paragraph of the Fifth Amendment of Lease:
Paragraph 4.
(vii) The following paragraphs of the Sixth Amendment of Lease:
Paragraphs 4 and 5.
(viii) The following paragraphs of the Seventh Amendment of
Lease: Paragraphs 1 and 2.
(ix) The following paragraph of the Eighth Amendment of Lease:
Paragraphs 7 and 9.
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(x) The following paragraph of the Ninth Amendment of Lease:
Paragraph 4.
9. Disputes Resolved Under Massachusetts Law:
Any dispute related to this Sublease shall be resolved under and
pursuant to the laws of the Commonwealth of Massachusetts and any and all
actions to resolve any dispute between the parties under this Sublease agreement
shall be commenced in the Small Claims Court or the Municipal Court or the
Superior Court for the Commonwealth of Massachusetts located in Boston.
10. Indemnification:
Sub-tenant hereby waives all claims against Sub-landlord and Master
Landlord for damage to any property or injury or death of any person in upon or
about the Premises arising at any time and from any cause, other than by reason
of gross negligence of Sub-landlord, its employees or contractors, and
Sub-tenant shall hold Sub-landlord and Master Landlord harmless from and
reimburse Sub-landlord and Master Landlord for all and any damage to any
property or injury to or death of any person arising from the use or occupancy
of the Premises by Sub-tenant or for Sub-tenant's failure to perform its
obligations under this Sublease, specifically including, but not limited to, any
compensation or damages for (i) loss of the use of the whole or any part of the
Premises after destruction or damage, (ii) damage to Sub-tenant's personal
property in or improvements to the Premises, or (iii) any inconvenience,
annoyance or expense occasioned by such damage or repair (including moving
expenses and the expense of establishing and maintaining any temporary
facilities), except such as is caused by gross negligence, willful act of
Sub-landlord, its contractors or employees. The foregoing indemnity obligation
of Sub-tenant shall include reasonable attorneys' fees, investigation costs and
all other reasonable costs and expenses incurred by Sub-landlord and Master
Landlord from the first notice that injury, death or damage has occurred or that
any claim or demand is to be made or may be made. The provisions of this
paragraph shall survive the termination of this Sublease with respect to any
damage, injury or death occurring prior to such termination.
11. Security Deposit: $11,000.00
12. Sub-tenant Improvements:
Sub-tenant acknowledges that the Premises shall be delivered in an "as
is", "where is" condition and that Sub-landlord shall have no obligation for the
construction of any improvements to or within the Premises. Sub-tenant shall not
make any alterations, additions or improvements to the Premises without Master
Landlord's and Sub-landlord's prior written approval, which approval shall not
be unreasonably withheld. Before making any authorized buildout (to be concluded
within three (3) months of Sub-tenant's occupancy) Sub-tenant shall obtain, at
its own expense, all permits, approvals and certifications required by any
governmental authority and shall promptly deliver copies of same to Master
Landlord and Sub-landlord. Sub-tenant will cause Sub-tenant's contractors and
subcontractors to carry such workers'
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compensation, general liability and personal and property damage insurance as
Landlord may reasonably require. Sub-tenant agrees to hold the Master Landlord
and the Sub-landlord free and harmless from any liability for labor or materials
supplied for such work and shall keep the Premises free from mechanics liens of
any kind by obtaining waivers thereof or by removing or bonding any lien filed,
within ten (10) days from receipt of notice of the filing thereof. At the
expiration of the term of this Sublease, or upon the earlier termination hereof
(at the option of the Master Landlord) any and all alterations, additions or
improvements to the Premises made by the Sub-tenant during the term of this
Sublease shall become the property of the Master Landlord (without payment
therefor by the Master Landlord). For purposes of this Sublease, Sub-landlord
shall deliver the Premises to Sub-tenant when this Sublease is fully executed by
Sub-Landlord and Sub-Tenant and the date of such delivery shall be confirmed by
written notice from Sub-landlord to Sub-tenant concerning Master Landlord's
written consent to Sublease. However, access before said delivery, as required,
to the Premises (and its wiring), after notification by Sub-tenant of specific
requirements, shall be permitted after obtaining consent by Sub-landlord and
Master Landlord.
13. Sub-tenant shall not do or keep anything in, upon or about the
Premises, nor permit any such action or nonaction by any other person, which may
prevent the obtaining of any fire, public liability, or other insurance of any
kind upon or written in connection with the Premises, or the Building or any
property of any person anywhere therein, or which may make any such insurance
void or voidable. In the event any insurer shall assess any extra premiums or
increase the rate of any such insurance or premiums as a result of any special
activities of the Sub-tenant, the Sub-tenant shall reimburse the Master Landlord
for any such increase or extra premium, and any reimbursement shall be
Additional Rent hereunder.
14. First Right of Refusal. Sub-landlord grants Sub-tenant a recurring
first fight of refusal on any additional space it may offer for sublease.
Sub-tenants must respond in writing to notice provided by Sub-landlord within
five business days of its receipt of such notice. Failure to timely respond
waives this fight.
15. Premises Insurance and Waiver of Subrogation:
a. Sub-tenant shall provide those certificates of insurance to
Sub-landlord and Master Landlord prior to Sub-tenant's occupancy, in forms
acceptable to Sub-landlord, with such provisions and insurance coverages as
Sub-landlord reasonably may require.
b. Sub-tenant waives, discharges and releases, all rights of recovery
against Sub-landlord and the agents and employees of Sub-landlord and Master
Landlord for loss or damage to property of Sub-tenant or to its property located
on the Premises and insured under valid and collectible insurance policies, to
the extent of any recovery actually collected under such insurance, provided
that this waiver shall only be operative with respect to loss or damage
occurring during such time as Sub-tenant's policies of insurance contain a
clause providing that such waiver shall not affect or impair the policy and the
Sub-tenant's fights to recover thereunder.
c. Sub-tenant agrees that such insurance policies as it may have in
effect during
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the term of this Sublease or any extension or renewal thereof shall, if the
insurance xxxxxx permits the inclusions of such clause or endorsement in such
policies, include a clause or endorsement which provides in substance that the
insurance company waives any right of subrogation which it might otherwise have
against the Master Landlord and Sub-landlord.
16. Sub-landlord's Access:
Sub-tenant agrees that Sub-landlord upon reasonable advance notice to
Sub-tenant (or without notice in case of emergency) may enter upon the Premises
at reasonable hours so as not to unduly interfere with the normal conduct of
Sub-tenant's business (or at any time in case of emergency) for the purposes of
inspecting the same. Sub-landlord shall have the right, during the last three
(3) months of the term hereof to place signs upon the common areas in the
Building in which the Premises are located indicating the Premises are for rent,
provided that any such signs shall not materially interfere with the Premises.
17. No Assignment and Subletting:
Sub-tenant shall not transfer, sublet, assign, hypothecate or
otherwise alienate this sublease or Sub-tenant's interest in and to all or any
part of the Premises without the express written consent of the Master Landlord,
which shall not be unreasonably withheld or delayed, nor shall Sub-tenant grant
any person any license or permission to use the Premises. Sub-landlord hereby
consents to the further sublease of a portion of the Premises to Ivy
Productions, Inc., so long as used for office purposes.
18. Hazardous Waste:
a. The Sub-tenant shall: (i) not store (except in compliance with all
laws, ordinances and regulations pertaining thereto), or dispose of any
hazardous material or oil on the Premises (the terms "site", "vessel" and
"hazardous material" being used in this paragraph having the same meaning given
those terms in Massachusetts General Laws, Chapter 21E, as amended); (ii)
provide the Master Landlord and the Sub-landlord with written notice (a) upon
the Sub-tenant's obtaining knowledge of any potential or known release, or
threat of release, of any hazardous material or oil at or from the Premises in
violation of applicable environmental laws; (b) upon the Sub-tenant's receipt of
any notice to such effect from any federal, state or other governmental
authority; and (c) upon the Sub-tenant's obtaining knowledge of any incurrence
of any expense or loss by such governmental authority in connection with the
assessment containment or removal of any hazardous material or oil for which
expense or loss the Master Landlord or the Sub-landlord may be liable or for
which expense a lien may be imposed on the Premises. Except as the context
otherwise indicates, the terms "notice" or "knowledge" shall have the same
meaning ascribed to them by M. G. L. c.21E, ss.7.
b. Sub-tenant hereby indemnifies and agrees to hold Master Landlord
and Sub-landlord harmless for any and all losses, liabilities, damages,
expenses, fines, penalties or fees (including reasonable attorneys fees)
suffered by Master Landlord and/or Sub-landlord resulting from Sub-tenant's
failure to perform its obligations under this paragraph. This paragraph shall
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survive the termination of the Sublease.
19. Submission of this instrument for examination or signature is without
prejudice and does not constitute a reservation or option and it is not
effective until execution and delivery by both Sub-landlord and Sub-tenant and
consented to by Master Landlord.
20. Upon the execution of this lease, the Sub-tenant shall provide to the
Sub-landlord a Certificate of Legal Existence as issued by the Secretary of
State of the Commonwealth of Massachusetts as well as a listing of the officers
and directors of the Sub-tenant.
21. NOTICE PROVISION:
(a) The addresses to which notices are to be sent under Section 10.2
of the Master Lease are as follows:
To Sub-landlord: Xxxxxxxx, Xxxxxxx & Xxxxxx, LLP.
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxx
to Sub-tenant: Student Advantage, Inc.
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Either party may inform the other in the manner provided for the giving of
notices of any change in address.
(b) Whenever in the Master Lease notice is required by the Tenant or
Landlord thereunder, or notice is required under this Sublease, such notice
shall be delivered simultaneously to the other three parties. It is the purpose
and intent of the foregoing provision to provide Sub-landlord hereunder with
time within which to transmit to the Master Landlord any notices or demands
received from Sub-tenant and to transmit to Sub-tenant any notices or demands
received from Master Landlord. Notwithstanding the foregoing, any notices
required to be delivered by either Sub-landlord or Sub-tenant under the terms of
this Sublease which are not notices to or from Master Landlord under the Master
Lease shall be given in a manner, and the times provided in this Sublease
without reference to the addition or subtraction of these as provided in this
Section 21.
22. BROKERAGE. Sub-landlord and Sub-tenant each warrants and represents to
the other that it had no dealing with any broker or finder concerning the
subletting of the Premises except for Nordblum Company. Each party hereto agrees
to indemnify and hold the other party harmless from any and all liabilities and
expenses, including, without limitation, reasonable attorneys' fees, arising out
of claims against the other party by any other broker, consultant,
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finder or like agent claiming to have brought about this Sublease based upon the
alleged acts of the indemnifying party. This Section 22 shall survive the
termination of this Sublease.
23. MISCELLANEOUS:
(a) This Sublease (i) contains the entire agreement of the parties
with respect to the subject matter which it covers; (ii) supersedes all prior or
other negotiations, representations, understandings and agreements of, by or
between the parties, which shall be deemed fully merged herein; (iii) shall be
construed and governed by the laws of the State in which the Building is
located; and (iv) may not be changed or terminated orally.
(b) This Sublease may be executed in any number of counterparts, each
of which shall be deemed to be an original and all of which shall constitute one
and the same instrument.
(c) The captions herein are inserted only as a matter of convenience
and for reference and in no way define, limit, construe or describe the scope of
this Sublease or the meaning or intent of any provision hereof.
(d) This Sublease shall be binding upon and inure to the benefit of
the parties hereto and their respective permitted successors and assigns.
24. SUB-LANDLORD REPRESENTATION. Sub-landlord represents that as of the
Commencement Date the Premises, including any tenant improvements made by
Sub-landlord, and any common areas under the Lease, are in compliance with all
laws and regulations and built in good and workmanlike manner with good
materials in accordance with the plans therefor and the equipment and building
system serving the Premises are in good working order. Sub-landlord represents
that there are no hazardous materials on the Premises. Sub-landlord hereby
indemnifies and agrees to hold Sub-tenant harmless for any and all losses,
liabilities, damages, expenses, fines, penalties or fees, including reasonable
attorneys fees incurred by Sub-tenant resulting from Sub-landlord's failure to
perform its obligations hereunder. This paragraph shall survive termination of
the Sublease.
25. NON-DISTURBANCE AGREEMENTS. Sub-landlord shall provide Sub-tenant with
a Recognition, Attornment & Agreement in form reasonably acceptable to
Sub-tenant from all future and present lenders, fee owners, leaseholders and
other parties with an interest superior to that of Sub-tenant.
26. SECURITY DEPOSIT. On the execution of this Sublease, Sub-tenant shall
deposit the sum of $11,000.00 as a security deposit for the performance of the
obligations of Sub-tenant hereunder. Said security may be mingled with other
funds of Sub-landlord and no fiduciary relationship shall be created with
respect to such deposit. Within thirty (30) days after the expiration or sooner
termination of the Term, the security deposit shall be returned to the Subtenant
without interest.
IN WITNESS WHEREOF, this Sublease is executed the day and date below
written by a
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duly authorized officer of the Sub-tenant and Managing Partner of the
Sub-landlord.
SUB-LANDLORD
Xxxxxxxx, Xxxxxxx & Xxxxxx, LLP, a Massachusetts limited liability partnership
By: /s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx, Managing Partner and
Chairman of the Executive Committee
and not individually
SUB-TENANT
Student Advantage, Inc.
By: /s/ Xxxxxxxxxxx X. Xxxxxxx
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Its: V.P. Finance & Administration
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