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Exhibit 10.10
LEASE
by and between
RETALS, LTD.
(LANDLORD)
and
STUDENT ADVANTAGE, LLC
(TENANT)
February ____, 1998
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TABLE OF CONTENTS
PAGE
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1. Premises. ................................................................4
2. Use ......................................................................5
3. Term .....................................................................5
4. Basic Rent; Security Deposit .............................................5
5. Real Estate Tax ..........................................................6
6. CPI Clause ...............................................................7
7. Improvements .............................................................7
8. Billing ................................................................. 8
9. Payment on Account ...................................................... 8
10. Late Payment ............................................................ 8
11. Brokerage ............................................................... 8
12. Property of Tenant ...................................................... 9
13. Maintenance and Repair. ................................................. 9
14. Prohibited Items ........................................................10
15. Services ................................................................11
16. Inspection ..............................................................12
17. Casualty. ...............................................................12
18. Condemnation - Eminent Domain. ..........................................13
19. Injury and Damage. ......................................................15
20. Indemnification. ........................................................15
21. Insurance ...............................................................15
22. Mutual Waiver of Subrogation.............................................17
23. Assignment, Mortgaging and Subletting ...................................18
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24. Default .................................................................20
25. Landlord's Right to Cure. ...............................................22
26. Subordination/Rights of Mortgagees ......................................22
27. Surrender of Possession; Holdover .......................................23
28. Notices .................................................................24
29. Rules and Regulations ...................................................24
30. Quiet Enjoyment .........................................................24
31. Limitation of Landlord's Liability ......................................25
32. Binding Agreement .......................................................25
33. Notice of Lease..........................................................25
34. Estoppel Certificate ....................................................25
35. General Provisions ......................................................26
36. Standards for Landlord's Performance ....................................27
37. Lien Waivers ............................................................27
38. Option to Extend and Expand .............................................27
39. Parking. ................................................................29
40. Compliance with Law .....................................................29
Signatures ..............................................................30
Exhibit A - Cleaning Service ............................................31
Exhibit B - Rules and Regulations .......................................33
Consent of Member's Meeting .............................................34
Exhibit C - Resolutions .................................................35
Exhibit D - Improvements ................................................36
Clerk's Certificate .....................................................38
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LEASE
This Lease is made and entered into as of this ___ day of February, 1998 by and
between Retals, LP with an address c/o Teel Realty, 0000 Xxxxxxxxxxxx Xxxxxx,
Xx. 0, Xxxxxxxx, XX 00000-0000 (the "LANDLORD" or "LESSOR") Student Advantage,
LLC., a Delaware corporation, with an address at 000 Xxxxxxxx Xxxxxx, Xxxxxx, XX
00000 (the "TENANT" or "LESSEE").
This Lease shall be effective as of the "EFFECTIVE DATE" (see SECTION 3) which
is anticipated to be between April 1, 1998 and April 21, 1998, provided the
Premises are delivered in substantial completion as provided in Section 7 of
this Lease. Not withstanding that Effective Date has not occurred, this Lease
shall be a binding agreement between the parties from and after the date hereof.
1. PREMISES.
1.1 In consideration of the rents and covenants herein stipulated to be paid and
performed by Tenant and upon the terms and conditions herein specified, Landlord
hereby leases to Tenant, and Tenant hereby hires and takes from Landlord a
portion of the building located at 000 Xxxxxx Xxxxxx in Boston, Massachusetts
(the "BUILDING"), and said leased portion containing 21,167 rentable square feet
("RSF"), (the "PREMISES"). The RSF for the aforementioned Premises and for the
respective portions of said Premises, which are more particularly referred to
hereafter, are agreed figures for all purposes. The Premises are more
particularly described as follows: 5214 RSF on the mezzanine level being space
currently occupied by National TechTeam (which may hereafter be referred to as
space or portion "A"), 2972 RSF on the mezzanine level being space last occupied
by Xxxxx plus certain adjacent present corridor space (which may hereafter be
referred to as space or portion,"B"), and 12981 RSF on the street/lobby level
being space last occupied by Xxxxxx Xxxxxx (which may hereafter be referred to
as space or portion "C"), excepting the common areas on these floors, (the
"PREMISES").
1.2 The Premises are Leased together with the right of Tenant to use for its
customers, employees and visitors, in common with others entitled thereto, such
common areas and facilities in or appurtenant to the Building as Landlord may
from time to time designate and provide, provided, however that Landlord
reserves the right from time to time, without unreasonable interference with
Tenant's use of the Premises, (i) to install, repair, replace, use, maintain,
alter and relocate for service to the Premises and to other parts of the
Building, service fixtures, pipes, ducts, and equipment wherever located in the
Building or the Premises and (ii) to alter or relocate any other common
facility, provided that substitutions therefor are substantially equivalent or
better or necessary and pipes, service fixtures and ducts shall be concealed in
walls wherever possible and appropriate. Tenant shall allow access to and
through Tenant's rented space for emergency use or any use required by
Governmental rules, laws, regulations or other requirements, including those of
City, State, and Federal authorities.
1.3 All the perimeter walls of the Premises except the inner surfaces thereof,
any balconies, terraces or roofs adjacent to the Premises, and any space in or
adjacent to the Premises used for serving other portions of the Building
exclusively or in common with the Premises, including without limitation (where
applicable) shafts, stacks, pipes, conduits, wires and appurtenant fixtures fan
rooms, ducts, electric or other utilities, sinks or other Building facilities,
and the use
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thereof, as well as the right of access through the Premises for the
purpose of operation maintenance, decoration and repair, are expressly reserved
to Landlord.
2. USE. Tenant may use the Premises for office purposes, and for such other
purposes as Landlord reasonably may approve in writing, provided that such other
use is consistent with the character of comparable office space in the so-called
Fort Point Channel area of Boston. Such use and occupation shall at all times be
in compliance with all applicable laws, ordinances, rules and regulations of any
governmental authority. Tenant shall not use, permit or suffer anything to be
done in the Premises or anything to be brought into or kept in the Premises, in
either case, which occasions discomfort or annoyance to any other tenants or
occupants of the Building or which in Landlord's reasonable judgment may tend to
impair the reputation or appearance of the Building or tend to interfere with
the proper and economic operation of the Building by Landlord. Tenant shall not
bring or permit to be brought into or keep in or on the Premises or elsewhere in
the Building, any inflammable, combustible or explosive fluid, material,
chemical or substance, or cause any odors to emanate from or permeate the
Premises. Lessor shall provide to Lessee access to the Premises prior to
Effective Date to install phone system, network, and other essential systems and
materials.
3. TERM. Subject to the terms, covenants, agreements and conditions contained
herein, Tenant shall have and hold the Premises for an initial term (the "TERM")
of approximately seven (7) years and one (1) month for the lobby level space
(C), and approximately five (5) years and one (1) month for the mezzanine level
portion of the premises (spaces A and B), commencing on the Effective Date,
which date shall be the later of (a) the date of delivery of the Premises in
substantial completion of the work outlined in Section 7 or (b) April 21, 1998,
or as early as April 1, 1998 if Premises are delivered in substantial completion
of the work outlined in SECTION 7; the seven (7) year and one (1) month term for
the lobby level portion of the Premises shall expire at midnight on the last day
of the calendar month immediately following the seventh anniversary of the
Effective Date, unless sooner terminated or extended pursuant to this Lease; the
five (5) year and one (1) month term for the mezzanine level portion of then
Premises shall expire at midnight on the last day of the calendar month
immediately following the fifth anniversary of the Effective Date, unless sooner
terminated or extended pursuant to this Lease.
4. BASIC RENT; SECURITY DEPOSIT. Tenant covenants to pay to Landlord during the
Term of this Lease, fixed annual rent (such fixed rent is hereinafter called the
"BASIC RENT") as follows:
4.1
Location $ per RSF # RSF $ per Year $ per Month
-------- --------- ----- ---------- ------------
(Annualized)
* Year 1 Lobby "C" $23.00 12,981
Mezzanine "A" $17.00 5,214
Mezzanine "B" $ 8.50 2,972 $412,463 $34,371.92
(As of May 15)
Years Lobby "C" $23.00 12,981
2 to 5
Mezzanine $17.00 8,186 $437,725 $36,477.08
"A" + "B"
** Years Lobby $26.00 12,981 $337,506 $28,125.50
6 & 7
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* In the first year, the Rent for the lobby level (space C) shall begin
between April 1, 1998 and April 21, 1998, subject to 4.2 below, so that the
monthly rent until May 15,1998 shall be $24,880.25; and the Rent for the
mezzanine spaces A and B shall begin on May 15, 1998, so that the monthly
Rent shall then be $34,371.92.
** If Lessee exercises his option for the 8,186 mezzanine level space, the
yearly Rent for years 6 and 7 shall increase by $139,162 ($17 per RSF)
which would bring the total yearly Rent for each of the years 6 and 7 to
$476,668, and the per month Rent in years 6 and 7 to $39,722.33.
4.2 The annual Basic Rent is as per SECTION 4.1 above and shall commence on the
Effective Date and shall be payable monthly in advance in the amounts as per
SECTION 4.1 above. Landlord shall use best efforts to deliver Premises as per
the dates in this section; however, if any space within the Premises cannot be
delivered with build-outs and other improvements substantially in accordance
with those outlined in Exhibit D hereto for any reason, including holdover of a
Tenant currently occupying said space, then Tenant's obligation to pay rent on
such space shall be delayed accordingly, with pro rata adjustments made on a per
diem basis. In the event of a holdover as above, Lessor shall diligently
prosecute legal proceedings in order to obtain the Premises for delivery to
Lessee. Lessor shall use best efforts to have Space A vacated by current
occupant by April 1, 1998, (which is one month before lease expiration for
current Lessee of said space). Notwithstanding any other provision herein, in
the event that Space A cannot be delivered to Lessee on or before April 1, 1998,
then Tenant's obligation to pay rent on spaces A and B shall not commence until
six (6) weeks after the date Space A is delivered to Tenant or when Tenant takes
occupancy if sooner.
4.3 The applicable Basic Rent is payable in twelve equal monthly installments,
in advance, on the first day of every calendar month, provided that if the Term
begins or ends on a day other than the first or last day of a calendar month,
the installment of Rent payable on the first day of the Term, or the first day
of the last calendar month of the Term shall be prorated for such first or last
partial month on the basis of a 365 day year. Tenant will pay the Basic Rent
without counterclaim, set-off, deduction or demand to Landlord at its address
set forth above, or at such other place as is designated in writing from time to
time by Landlord. Receipt is hereby acknowledged of the sum of $70,849.00 which
is payment for the first full month's rent and for the 13th month's rent for the
Premises ($34,371.92 + $36,477.08).
4.4 The security deposit shall be $36,477.08 (the "SECURITY DEPOSIT"), receipt
of which is hereby acknowledged. If Tenant leases any further space in addition
to the Premises in the Building, the Security Deposit shall be increased by
one-twelfth (1/12) of the yearly rent for any such new space. If Tenant defaults
in its obligations under this Lease, and such default is not cured within the
applicable notice and cure period then Landlord may apply any portion of the
Security Deposit to cure the default, and the balance of the Security Deposit,
if any, shall be held as security for the prompt payment and performance of
Tenant's obligations under the Lease. Landlord shall not be obligated to
segregate said security deposit and Lessor shall pay interest to Tenant at a
rate of two (2) percent per annum, payable yearly within a reasonable time after
the anniversary of the Effective Date. Tenant shall be obligated to pay to
Landlord promptly any amount applied by Landlord hereunder, so that the Security
Deposit shall always be fully funded to the amount set forth above.
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5. REAL ESTATE TAX. In addition to the basic rent payments as aforesaid, Lessee
shall pay, if due, additional rent payments for real estate taxes. If in any
period commencing with July 1, 1998 (Fiscal Year 1999) the real estate taxes on
the land and building of which, the leased Premises are a part, are in excess of
the amount of real estate taxes thereon for Fiscal year 1998, hereinafter called
the base year, Lessee will pay to lessor as additional rent hereunder, when and
as designated by notice in writing by Lessor, 15% of such excess that may occur
in each year of the term of this Lease and any extensions thereafter, and
proportionately for any part of a fiscal or calendar year. Percentage
adjustment(s) shall proportionately be made, if necessary or appropriate, to
account for the amount of space occupied by Lessee during any year, so that for
example if spaces A and B were not occupied for a given year, the percentage of
excess Lessee would be responsible for would be reduced from 15% to 9%. Lessor
shall waive the first six (6) month's period xxxx for Lessee's share of real
estate tax increases (if any), as may become due per this section. Nothing
herein shall change the intent that the base year for computation throughout the
Term of this Lease and any extensions shall remain fiscal year 1998. If the
Lessor obtains an abatement of any such excess real estate tax and where the
lessee has paid excess real estate tax share over real estate base year tax
under this formula, Lessor shall refund proportionately to Lessee one-half of
such pro-rated excess abated real estate taxes; this is agreed to for simplicity
to allow for Lessor's or third Party services and/or expenses to obtain any such
abatements. The base year is fiscal year 1998 as assessed, without regard to any
abatements that may be obtained for said fiscal year 1998. These payments shall
be payable as per clauses 8, 9, and 10.
6. CPI CLAUSE. In lieu of an operating expense and inflation clause and for the
period commencing with April 1, 1998, during the term of the Lease and
extensions thereafter, the National Consumer Price Index "U' Series (hereinafter
"CPI") shall be used. For identification this series was 159.1 for January 1997,
(1982 - 1984 = 100 and as this may be adjusted hereafter by the U.S.
Government). The most recent monthly index prior to commencement of the Lease
shall be used as the base period index CPI for all calculation purposes
throughout the term of this lease and extensions. The amount to be paid by
Lessee will be 25% of the increase in the future CPI index (numerator) over the
base CPI index (denominator), figured as a percentage, and then multiplied by
the then current Rent. These payments shall be payable as per clauses 8, 9, and
10.
7. IMPROVEMENTS. Landlord shall paint and carpet and replace damaged 'gypcrete'
floor (where necessary) on the lobby floor portion (space C) of the Premises.
The mezzanine level portion A space currently occupied by National TechTeam is
being taken "as is" with any work the sole responsibility of Tenant allowing for
normal wear and tear and assuming no extraordinary damage. In the mezzanine
level portion B of the Premises, space last occupied by Xxxxx Images the
Landlord shall paint and carpet and incorporate hallway. Landlord shall also
contribute fifty percent (50%) of the cost of additional improvements up to a
total contribution by Landlord of twenty thousand dollars ($20,000). For clarity
this $20,000 is in addition to the paint, carpet and floor repairs referred to
above. These additional improvements shall be performed by Lessor, Lessor's
employees or agents, or contractors hired by Lessor, and paid for in accordance
with this SECTION 7 and shall be as per attached plan(s) and/or descriptions in
Exhibit D, as it may be changed by written agreement of both Lessor and Lessee.
Lessee shall have the right to choose whoever does the improvements, Lessor's
employees and contractors ("CHOICE 1") or an outside contractor of Lessees
choosing ("CHOICE
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2") (and choice 2 is subject to reasonable approval by Lessor); if Lessee elects
choice 1 then Lessor shall charge Lessee cost plus 10 percent for all work,
except for invoiced material such as the doors and ceiling tiles which shall be
charged at actual costs; if Lessee elects choice 2 then notwithstanding anything
in this Lease to the contrary including the provisions of SECTION 3 and SECTION
7, then the rent shall begin for the lobby floor portion (space C) by May 1,
1998 regardless of status of completion of the improvements to said premises.
Payment to Lessor shall be on a mutually agreed schedule and in any event shall
be paid in full upon issuance of a certificate of occupancy. Paint color is to
be uniform throughout each portion (A, B, C) of the Premises and colors may be
chosen by Lessee from samples provided by Lessor (paint to be Xxxxxxxx Xxxxx or
comparable quality); carpet to be chosen by Lessee from building standard sample
books provided by Lessor. Lessor shall additionally contribute up to ten
thousand (10,000) dollars for HVAC, electrical fire and sprinkler plans, which
shall be paid directly by Lessor to architects and/or engineers. Landlord shall
provide at his expense an intercom system connected to the front door of the
Building to each portion of the Premises; Lessor shall also provide one
staircase between space C and the mezzanine level of the Premises, but not the
installation or floor cutting. All work done in the Premises shall be of the
quality and appearance consistent with the rest of the Building. Completion of
any work planned or agreed to by Lessor and/or Lessee is contingent upon
governmental approval, if applicable or required. Prior to undertaking
additional work within the Premises Lessee shall obtain Landlord's prior written
permission, which permission shall not be unreasonably withheld. Receipt of such
permission may be contingent on Lessee agreeing to certain conditions, for
example that Lessee comply with all governmental permitting and regulations,
that the work be completed in a good and workmanlike manner.
8. BILLING. Time and period of Billing, whether annual, semi-annual, or
otherwise for real estate and CPI clauses shall be in the discretion of the
Lessor, and Lessee shall be obliged to pay to the Lessor the entire amount
billed, for the period billed. Any amount payable by Lessee for the period
during which this Lease commences and expires shall be apportioned on the basis
of the proportion of the particular year or tax year during which the lease term
is in effect. Should the real estate taxes or the CPI Index figure fall below
the base periods there shall be no credit adjustment to Lessee therefor, so that
the basic rent charge shall be due at all times and there shall be no reduction
in the basic fixed rent therefor.
9. PAYMENT ON ACCOUNT. Lessee shall when requested by Lessor, and with each
monthly payment, make such payments in advance as Lessor shall reasonably
determine to be sufficient to provide, in the aggregate, a fund adequate to pay,
when due, all additional rent required under the real estate tax and CPI
clauses. Any such payments on account shall be adjusted to conform to the actual
R.E. tax bills and CPI Index amounts.
10. LATE PAYMENT. In the event Lessee fails to make any basic rent payment
within ten (10) days after the date when due, or fails to make any additional
rent payment for real estate or CPI clauses, or other payment under the lease
within thirty (30) days after billing date, then Lessee shall pay to Lessor
therefore a late charge at the rate of BankBoston Prime Rate plus two (2)
percent per annum from the due date of such basic rent payment(s) and/or from
the billing date of such other rent payments for real estate, CPI or otherwise,
until such amount(s) is/are paid.
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11. BROKERAGE. Lessee warrants and confirms that it has dealt with no broker in
connection with the leasing of the Premises other than Boston Real Estate
Partners and Hunneman Commercial Company. Hunneman Commercial Company shall be
compensated by Boston Real Estate Partners from its fee from Lessor.
12. PROPERTY OF TENANT. Subject to the provisions of this SECTION 12, Tenant,
may place office fixtures, office equipment and the like ("TENANT'S PROPERTY")
in the Premises. Business machines and mechanical equipment and Tenant's other
personal property shall be placed and maintained by Tenant at its expense in
settings sufficient to absorb and eliminate any vibration or noise which may be
transmitted to the Building structure or to any other leased space in the
Building. Tenant covenants and agrees that all Tenant's Property of every kind,
nature and description which may be in or upon the Premises or Building, in the
public corridors, or on the sidewalks, area ways and approaches adjacent
thereto, during the Term hereof, and any movement of Tenant's Property, shall be
at the sole risk and hazard of Tenant, and Tenant hereby indemnifies and agrees
to save Landlord harmless from and against any liability, loss, injury, claim or
suit resulting directly or indirectly therefrom, unless caused by the negligence
or willful misconduct of the Landlord, its agents, contractors, or employees.
13. MAINTENANCE AND REPAIR.
13.1 Except for the work Landlord is obligated to perform under this Lease,
Tenant shall, at its sole cost and expense, maintain the Premises in good order,
condition and repair, reasonable wear and tear excepted, and shall make all
foreseen and unforeseen and ordinary and extraordinary changes and nonstructural
repairs required to keep the Premises in good repair and condition including,
without limitation, repairs to doors locks, hardware, carpets, walls, ceilings
and fixtures in the Premises, and other utility services located in and
exclusively serving only the Premises, and glass in and about the Premises.
Tenant, at its own expense, shall supply all light bulbs, tubes or similar
devices for lighting the Premises and Landlord may (but shall be under no
obligation to do so) offer to supply such devices for a reasonable fee to be
established by Landlord and to be paid by Tenant to Landlord in addition to any
other payments pursuant to the terms of this Lease. Tenant shall keep the
Premises equipped with all safety appliances required by law or ordinance or any
other regulation of any public authority because of any use made by Tenant and
to procure all licenses and permits so required because of such use and, if
requested by Landlord, to do any work so requested because of such use, it being
understood that the foregoing provisions shall not be construed to broaden in
any way the permitted uses of the Premises. Tenant is responsible for the
storage of food items, and the cleaning of all kitchen and lunchroom areas so as
to keep the Premises free from and clear of rodents, bugs and vermin, at its
sole cost and expense. Landlord shall provide exterminating services for the
Building in the normal operations of the Building when necessary.
13.2 Landlord shall (i) keep the Building structure including the roof, the
plumbing, mechanical, electrical, elevator, heating, and ventilating systems and
utility service lines furnished by Landlord in good and serviceable condition
and repair (except for any repair or replacement occasioned by any act or
neglect of Tenant, its servants, agents, customers, contractors, employees or
licensees); (ii) keep the sidewalks, common corridors, stairways, elevators and
all other public portions of the Building in serviceable repair and in a
reasonably clean and safe condition; (iii) comply with applicable governmental
rules, regulations, laws and
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ordinances affecting the Building, unless the violation is caused by Tenant or
Tenant's use of the Premises or Tenant's neglect in connection therewith.
Landlord reserves the right to interrupt, curtail, stop and suspend the
furnishing of any services and the operation of the plumbing, electrical,
heating, and ventilating systems when necessary by reason of accident or
emergency or for repairs alterations, replacements or improvements which may
become necessary or when it cannot secure supplies or labor, or by reason of any
other cause beyond its control, without liability or any abatement of Rent being
due thereby, and without giving rise to a claim in Tenant's favor that such
failure constitutes actual or constructive, total or partial, eviction from the
Premises.
13.3 Notwithstanding the foregoing, should any malfunction of the Building
systems or facilities occur, or any interruption of the foregoing services
occur, Landlord shall reasonably and with due diligence repair such malfunction
or restore said service. If Landlord has prior notice of an interruption in such
service, Landlord shall give notice to Tenant as soon as reasonably practical.
13.4 Tenant shall give to Landlord prompt notice of any fire or accident in the
Premises or in the Building and of any damage to, or defective condition in, any
part or appurtenance of the Building's sanitary, electrical, heating and air
conditioning or other systems located in, or passing through, the Premises.
14. PROHIBITED ITEMS
14.1 Tenant shall not bring or permit to be brought or kept in or on the
Premises or elsewhere in the Building any hazardous, toxic, inflammable,
combustible or explosive fluid, material, chemical or substance, including
without limitation any item defined as hazardous pursuant to Chapter 21 E of the
Massachusetts General Laws or Section 9601 of Title 42 of the United States Code
as amended (except such as are related to Tenant's use of the Premises, provided
that the same are stored and handled in a proper fashion consistent with
applicable legal standards) (collectively, "HAZARDOUS SUBSTANCES").
14.2 Tenant, with regard to any conduct by Tenant, its agents, independent
contractors, business invitees, licensees, servants or employees, does hereby
agree to indemnify, defend, and save and hold harmless Landlord from all
actions, liens, demands, costs, expenses, fines and judgments resulting from or
arising by reason of the following: (i) for any spills or contamination of air,
soil or water or otherwise by Hazardous Substances occurring on the Premises or
the Property or upon removal therefrom; (ii) for the violation of any applicable
federal, state and local environmental laws, ordinances, orders, or regulations
now or hereafter affecting or applicable to the Premises, the Property or the
operation of Tenant's business at the Property; and (iii) for the violation of
any of the provisions of this Section of this Lease, in any case, including,
without implied limitation, reasonable engineering, attorney's and other
professional fees and expenses for evaluating, and/or curing the same and for
consulting, engineering defending against any such claims or removing such
Hazardous Substances, and for enforcing this indemnification.
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14.3 Tenant shall not suffer or permit the Premises or any fixtures, equipment
or utilities therein or serving the same, to be overloaded, damaged or defaced.
14.4 Landlord shall, to the best of Landlord's knowledge and belief deliver
Premises free of hazardous materials.
15. SERVICES.
15.1 The Landlord shall provide:
(i) Access to the Premises twenty-four hours a day, seven days a week. Entry
after hours is controlled through a card key access system, and Lessee shall be
responsible to account for the distribution and possession of these keys by
Lessee's employees according to reasonable rules that Lessor may from time to
time promulgate.
(ii) Necessary elevator facilities. Tenant shall be permitted the use of the
passenger elevators for the transportation of employees, invitees, deliveries of
freight to and from the Premises. Large deliveries shall be at off peak hours
and shall be coordinated with the Building Manager.
(iii) Heat to the common areas of the Building and to the Premises and
air-conditioning equipment for the purposes of permitting the air-conditioning
of the Premises during normal seasonal heating and cooling periods from 7:00
a.m. to 6.00 p.m. on Monday through Friday and from 9:00 a.m. to 1:00 p.m. on
Saturdays, with the exception of Federal and State holidays recognized in
Massachusetts, to standards of comparable office buildings in the Fort Point
Channel area of Summer Street in the City of Boston. Heat and air conditioning
will be provided by Landlord at Tenant's expense after normal business hours and
on Sundays and holidays with reasonable notice given to Landlord by Tenant.
(iv) Cleaning of the Premises and Common Areas according to similar
specifications (which cleaning specifications are used for illustrative purposes
only) as set forth on EXHIBIT A (but excluding removal of any trash resulting
from the Improvements or alterations of Tenant pursuant to SECTION 7), provided
the Premises are kept in good order by the Tenant. Such cleaning shall be of the
quality provided for comparable office buildings in the City of Boston.
(v) Hot and cold running water, liquid soap, toilet tissue and paper towels for
core area washrooms.
(vi) Electricity for normal lighting of the main lobby, elevators, washrooms,
common areas, and stairs but not for the Premises.
(vii) Removal of snow and ice from the entry and sidewalks to the Building.
15.2 Landlord shall furnish to the Premises, 120/208 volt, 400 amps of
electricity. If Tenant shall require electricity in excess of the amount
provided above and if, (i) in Landlord's reasonable judgment, Landlord's
facilities are inadequate for such excess requirements, or (ii) such excess use
shall result in an additional burden on the Building utility systems and
additional cost to Landlord on account thereof, as the case may be Tenant shall,
upon demand, reimburse Landlord for such additional cost, as aforesaid, or
Landlord, in its sole discretion, and at the sole
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cost and expense of Tenant, may furnish and install such additional wires,
conduits, feeders, switchboards and related equipment as reasonably may be
required to supply such additional requirements of Tenant. Tenant shall pay when
due all charges for electricity, telephone and other utilities and utility
services, supplied to or consumed upon the Premises, including consumption of
electricity used for air-conditioning and ventilating, and service inspections
made therefor during the Term (other than those expressly required to be
provided by Landlord hereunder), whether initially charged to Landlord or Tenant
and whether designated as a charge, tax, assessment, fee or otherwise.
15.3 In the event Tenant wishes to provide outside services for the Premises
over and above those services to be provided by Landlord as set forth herein,
Tenant shall first obtain the prior written approval of Landlord for the
installation and/or utilization of such services, which consent shall not be
unreasonably withheld or delayed. ("OUTSIDE SERVICES" shall include, but shall
not be limited to, cleaning services, Window cleaning services, waste or garbage
removal, television, so-called "canned music" services, security services,
catering services and the like above the level of services Landlord is obligated
to provide under this Lease). In the event Landlord approves the installation
and/or utilization of such services, such installation and utilization shall be
at Tenant's sole cost, risk and expense.
15.4 The Building will be managed by Xxxx Realty at the address set forth above.
Landlord reserves the right to change the manager of the Building.
16. INSPECTION. Landlord and its authorized representatives shall have the right
at all reasonable times to enter the Premises to inspect the same, to make such
repairs, alterations, replacements or improvements therein or in or to common
areas or other Premises within the Building as Landlord may deem necessary or
desirable, to exhibit the Premises to prospective mortgage lenders and
prospective purchasers of the Property, and during the last lease year to
prospective tenants or others, and to introduce conduits and pipes and/or ducts
as may be necessary; provided, however, that Landlord shall use all reasonable
effort not to unduly disturb Tenant's use and occupancy. Landlord shall not be
liable to Tenant in any manner for any expense, loss or drainage occurring by
reason of the aforesaid entries, unless caused by the willful act or negligence
of Landlord or its representatives, nor shall the exercise of any such right be
deemed an eviction or disturbance of Tenant's use or possession. Landlord shall
use reasonable efforts to minimize interference from such exercise with the
operation of Tenant's business.
17. CASUALTY. In the event of loss of, or damage to, the Premises or the
Building by fire or other casualty, the rights and obligations of the parties
hereto shall be as follows:
17.1 If the Premises, or any part thereof, shall be damaged by fire or other
casualty, Tenant shall give prompt notice thereof to Landlord, and Landlord,
upon receiving such notice, shall proceed promptly and with due diligence,
subject to the provisions of this Article, unavoidable delays, and, subject to
the availability of insurance proceeds, to repair, or cause to be repaired, such
damage. If the Premises or any part thereof shall be rendered untenantable by
reason of such damage, whether to the Premises or to the Building, Basic Rent
and all additional Rent shall proportionately xxxxx for the period from the date
of such damage to the date when such damage shall have been repaired.
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17.2 If, as a result of fire or other casualty, the whole or a substantial
portion of the Building or the Premises is rendered untenantable, Landlord,
within ninety (90) days from the date of such fire or casualty, may terminate
this Lease by notice to Tenant, specifying a date not less than thirty (30) nor
more than sixty (60) days after the giving of such notice on which the Term of
this Lease shall terminate. If Landlord does not so elect to terminate this
Lease, then Landlord shall proceed with diligence to repair the damage to the
Premises and all facilities serving the same, if any, which shall have occurred,
and the Basic Rent and all additional rent shall meanwhile proportionately
xxxxx, all as provided in Paragraph (17.1) of this Section. However, if such
damage is not repaired and the Premises restored to substantially the same
condition as they were prior to such damage within nine (9) months from the date
of such damage, Tenant within thirty (30) days from the expiration of such nine
(9) month period or from the expiration of any extension thereof by reason of
unavoidable delays as hereinafter provided, may terminate this Lease by notice
to Landlord, specifying a date not more than sixty (60) days after the giving of
such notice on which the Term of this Lease shall terminate. The period, within
which the required repairs may be accomplished shall be extended by the number
of days, not to exceed one hundred and eighty (180) days, lost as a result of
unavoidable delays, which term shall include delays in the making of any such
repairs which are due to governmental regulations, casualties and strikes,
unavailability of labor and materials, and other causes beyond the control of
Landlord (including those of the type described in SECTION 31 below).
17.3 Landlord shall not be required to repair or replace any of Tenant's
business machinery, equipment, cabinet work, furniture, personal property or
other installations (all of which shall, however, be restored by Tenant within
thirty (30) days after Landlord shall have completed any repair or restoration
required under the terms of this Article), and no damages, compensation or claim
shall be payable by Landlord for inconvenience, loss of business or annoyance
arising from any repair or restoration of any portion of the Premises or of the
Building. If such thirty (30) day period or portion of such thirty (30) day
period needs to be used by Lessee to restore his Premises to tenantable
condition, then Rent and all additional Rent shall be abated for the thirty (30)
day period or that portion of the thirty (30) day period so used by Lessee to
restore his Premises.
17.4 The provisions of this Article shall be considered an express agreement
governing any instance of damage or destruction of the Building or the Premises
by fire or other casualty, and any law now or hereafter in force providing for
such a contingency in the absence of express agreement shall have no
application.
17.5 In the event of any termination of this Lease pursuant to this Article, the
Term of this Lease shall expire as of the effective termination date as fully
and completely as if such date were the date originally fixed herein for the end
of the Term of this Lease, Tenant shall have access to the Premises for a period
of fifteen (15) days after the date of termination in order to remove Tenant's
personal property.
17.6 Landlord's Architect's certificate given in good faith, shall be deemed
conclusive of the statements therein contained and binding upon Tenant with
respect to the performance and
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completion of any repair or restoration work undertaken by Landlord pursuant to
this Section or SECTION 18.
18. CONDEMNATION - EMINENT DOMAIN.
18.1 If the Building or any part thereof or the access thereto shall be taken or
appropriated by eminent domain or shall be condemned for any public or
quasi-public use, or (by virtue of any such taking, appropriation or
condemnation) shall suffer any damage (direct, indirect or consequential) for
which Landlord or Tenant shall be entitled to compensation, then (and in any
such event) this Lease and the Term hereof may be terminated at the election of
Landlord by giving a written notice of termination to Tenant within sixty (60)
days following the date on which Landlord shall have received notice of such
taking, appropriation or condemnation. If the entire Premises or such portion
thereof or the access thereto shall be so taken, appropriated or condemned, such
that Tenant shall be precluded from effectively utilizing the Premises, then
(and in any such event) this Lease and the Term hereof may be terminated at the
election of Tenant by giving a written condemnation. Upon the giving of any such
notice of termination by either Landlord or Tenant this Lease and the Term
hereof shall terminate as of the date on which Landlord or Tenant, as the case
may be shall be required to vacate any portion of the area so taken,
appropriated or condemned or shall be deprived of the means of access thereto-
provided, however, that Landlord in its notice of termination may elect to
terminate this Lease and the Term hereof retroactively as of the date on which
such taking, appropriation or condemnation became legally effective. In the
event of such termination this Lease and the Term hereof shall expire as of such
effective termination date and the Rent and all additional Rent shall be
apportioned as of such date.
18.2 If neither party elects to terminate this Lease and the Term hereof,
Landlord shall, with reasonable diligence and at its expense, to the extent of
compensation and damages awarded by the government authority taking,
appropriating or condemning the Building, and further only to the extent said
compensation is made available to Landlord by any mortgagee, restore the
remainder of the Premises (but not the Improvements or any of Tenant's
Property), or the remainder of the means of access, as nearly as practicable to
the condition thereof prior to such taking, appropriation or condemnation, in
which event the Rent and all additional Rent shall be adjusted in a manner such
that (i) a just proportion of the Rent, according to the nature and extent of
the taking, appropriation or condemnation and the resulting permanent injury to
the Premises and the means of access thereto, shall be permanently abated, and
(ii) a just proportion of the remainder of the Rent, according to the nature and
extent of the taking, appropriation or condemnation and the resultant injury
sustained by the Premises and the means of access thereto, shall be abated until
what remains of the Premises (other than Improvements or any of Tenant's
Property) and the means of access thereto shall have been restored as fully as
practicable for permanent use and occupation by Tenant hereunder. Landlord shall
not be liable for any delays in such restoration which are due to governmental
regulations, casualties, strikes, unavailability of labor or materials, or other
causes beyond Landlord's control nor shall Landlord be liable for any
inconvenience or annoyance to Tenant or injury to the business of Tenant
resulting from reasonable delays in such restoration. Landlord expressly
reserves and Tenant hereby assigns to Landlord all rights to compensation and
damages created, accrued or accruing by reason of any
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such taking, appropriation or condemnation, but not including relocation
assistance payments by a governmental agency or entity specifically made to
Tenant.
19. INJURY AND DAMAGE. Landlord shall not be liable for any injury or damage to
persons or property resulting from fire, explosion, falling plaster, steam, gas,
electricity, electrical disturbance, water, rain or snow or leaks from any part
of the Building or from the pipes, appliances or plumbing works or from the
roof, street or subsurface or from any other place or by dampness or by any
other cause of whatever nature, unless caused by or due to the act, omission
fault, negligence or misconduct of Landlord, or its agents, independent
contractors, business invitees, licensees, servants or employees; nor shall
Landlord or its agents be liable for any such damage caused by other tenants or
persons in the Building or caused by construction operations of any private,
public or quasi-public person.
20. INDEMNIFICATION. Tenant hereby indemnifies and covenants to save Landlord
harmless from and against any and all claims, liabilities or penalties asserted
by or on behalf of any person, firm, corporation or public authority:
(i) on account of or based upon any injury to person, or loss of or damage to
property, sustained or occurring on the Premises on account of or based upon the
act, omission, fault, negligence or misconduct of any person other than Landlord
or its agents, independent contractors, business invitees, licensees, servants
or employees.
(ii) on account of or based upon any injury to person, or loss of or damage to
property, sustained or occurring in or about the Property and other than on the
Premises (and, in particular, without limiting the generality of the foregoing,
on or about the elevators, stairways, public corridors, sidewalks, concourses,
arcades, approaches, area ways, roof or other appurtenances and facilities used
in connection with the Building or the Premises) arising out of the use or
occupancy of the Building or the Premises by the Tenant or by its agents,
independent contractors, business invitees, licensees, servants or employees,
and caused by the act, omission, fault, negligence or misconduct of any person
other than Landlord or its agents, independent contractors, business invitees,
licensees, servants or employees, and in addition to and not in limitation of
the foregoing subdivision (i); and
(iii) on account of or based upon (including monies due on account of) any work
or thing whatsoever done (other than by Landlord or its contractors, or agents
or employees of either) on the Premises during the Term of this Lease and during
the period of time, if any, prior to the Effective Date when Tenant may have
been given access to the Premises;
and, in respect of any of the foregoing, from and against all costs, expenses
(including, without limitation, reasonable attorneys' fees) and liabilities
incurred in or in connection with any such claim, or any action or proceeding
brought thereon. If any action or proceeding be brought against Landlord by
reason of any such claim, Tenant upon notice from Landlord shall at Tenant's
expense resist or defend such action or proceeding and employ counsel therefor
reasonably satisfactory to Landlord, it being agreed that such counsel as may
act for insurance underwriters of Tenant engaged in such defense shall be deemed
satisfactory.
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21. INSURANCE.
21.1 Tenant agrees to maintain public liability insurance in an amount not less
than $2,000,000 per occurrence for personal injuries or deaths occurring in or
about the Premises
and the Building and property damage liability insurance in an amount not less
than $2,000,000, including so-called "all-risk" insurance covering all of the
Tenant's fixtures, furniture, furnishings, equipment and stock in trade against
loss or damage by fire and other hazards in an amount not less than ninety per
cent (90%) of the full insurable replacement value thereof without deduction for
depreciation, and to submit and maintain certificates evidencing such policies
with Landlord. The insurers under such policies shall be reasonably satisfactory
to Landlord and such policies shall name as insured parties Landlord and Tenant
and any party holding an interest to which this Lease may be subordinated
pursuant to SECTION 22 or SECTION 26 provided Tenant has received written notice
of the name and address of such party, as their interests may appear, and shall
provide twenty (20) days' prior written notice to Landlord of lapse or
cancellation. Tenant agrees to keep all employees working in the Premises
covered by workmen's compensation insurance in statutory amounts and to furnish
Landlord with the certificates thereof. Tenant shall procure and maintain such
additional insurance as Landlord or any Mortgagee may reasonably require from
time to time.
21.2 Tenant will not do or omit to do or keep anything in, upon or about the
Premises, the Building or any adjacent areas which may prevent the obtaining of
any fire, liability or other insurance upon or written in connection with the
Premises, the Building or such adjacent areas or which may make any such
insurance void or voidable or otherwise invalidate the obligations of the
insurer contained therein, or which may create any extra premiums or increase
the rate of any such insurance over that normally applicable to office
buildings, Tenant agrees to pay to Landlord, upon demand, the amount of any
extra premiums or any increase in the rate of such insurance which results from
the business carried on in the Premises by Tenant, whether or not Landlord has
consented to such business, provided however that the Landlord warrants that the
original Permitted Uses contained in SECTION 2 shall not cause this provision to
be in effect. If Tenant installs any electrical equipment that overloads the
lines in the Premises, Tenant shall, at its expense, make whatever changes are
necessary to comply with the requirements of the insurance underwriter or
governmental authorities having jurisdiction, but such changes shall be made in
accordance with the provisions of SECTION 7 AND 13.
21.3 During the Lease Term Landlord shall maintain, to the extent available at
reasonable cost, fire insurance covering the Building (exclusive of Tenant's and
other tenant's property and improvements) with reasonable deductibles as the
Landlord may determine from time to time, and comprehensive general public
liability insurance coverage in amounts totaling not less than $2,000,000.00.
All such policies shall be obtained from responsible companies qualified to do
business and in good standing in Massachusetts. Such insurance shall indemnify
Landlord, any managing agent designated by Landlord, Tenant, and (whenever
Landlord shall request) any mortgagee against all claims and demands for injury
to or death of persons or damage to property which may be claimed to have
occurred upon the Premises.
21.4 Tenant shall not do or permit to be done any act or thing upon the
Premises or elsewhere in the Building which will invalidate or be in conflict
with any insurance policies covering the
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Building and the fixtures and property therein and shall not do, or permit to
be done, any act or thing upon the Premises which shall subject Landlord to any
liability or responsibility for injury to any person or persons or to property
by reason of any business or operation being conducted on the Premises or for
any other reason. Tenant at its own expense shall comply with all rules, orders,
regulations or requirements of the Board of Fire Underwriters or any other
similar body having jurisdiction, and shall not (i) do, or permit anything to be
done, in or upon the Premises, or bring or keep anything therein, except as now
or hereafter permitted by the Fire Department, Board of Underwriters, Fire
Insurance Rating Organization, or other authority having jurisdiction, and then
only in such quantity and manner of storage as will not increase the rate for
any insurance applicable to the Building, or (ii) use the Premises in a manner
which shall increase such insurance rates on the Building or on property located
therein, over that applicable when Tenant first took occupancy of the Premises
hereunder. If by reason of failure of Tenant to comply with the provisions
hereof the insurance rate applicable to any policy of insurance shall at any
time thereafter be higher than it otherwise would be, then Tenant shall
reimburse Landlord for that part of any insurance premiums thereafter paid by
Landlord, which shall have been charged because of such failure by Tenant.
22. MUTUAL WAIVER OF SUBROGATION.
22.1 Tenant and Landlord covenant that with respect to any insurance coverage
carried by each of Tenant and Landlord in connection with the Premises or the
Building, whether or not such insurance is required by the terms of this Lease,
such insurance shall provide for the waiver by the insurance carrier of any
subrogation rights against Landlord, its agents, servants and employees under
Tenant's insurance policies or against Tenant, its agents, servants and
employees under Landlord's insurance policies, where such waiver of subrogation
rights does not require the payment of an additional premium in both the
Landlord's and the Tenant's policies, but, if an additional premium is required
to be paid by either party, then either party may offer to pay such premium
after being notified of such additional premium. However, if either party elects
not to pay such additional premium, for whatever reason, in its discretion, then
there shall be no obligation by any party to provide a waiver of subrogation
rights; the intention of the parties is that this waiver of subrogation be
mutually provided by each party for the benefit of the other, and is
specifically intended not to be unilaterally provided. The intention is that
both parties shall have a waiver of subrogation rights within their respective
insurance policies. Further, if for whatever reason, either party's insurance
coverage does not provide for such waiver provision then neither party shall be
obligated to provide for Said waiver rights in their respective policies. Either
Landlord or Tenant, upon request, shall provide to the other party a written
evidence as to whether or not such party's insurance does or does not provide
for said subrogation waiver clause.
22.2 Notwithstanding any other provision of this Lease, (i) Landlord shall not
be liable to Tenant for any loss or damage, whether or not such loss or damage
is caused by the negligence of Landlord, its agents, independent contractors,
business invitees, licensees, servants or employees, to the extent that such
loss or damage is covered by valid and enforceable insurance carried by Tenant;
and (ii) Tenant shall not be liable to Landlord for any loss or damage, whether
or not such loss or damage is caused by the negligence of Tenant or its agents,
independent
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contractors, business invitees, licensees, servants or employees, to
the extent that such loss or damage is covered by valid and enforceable
insurance carried by Landlord.
23. ASSIGNMENT, MORTGAGING AND SUBLETTING.
23.1 Tenant covenants and agrees that neither this Lease nor the Term hereof,
nor the estate hereby granted, nor any interest herein or therein, will be
assigned, mortgaged, pledged, encumbered or otherwise transferred (whether
voluntarily or by operation of law), and that neither the Premises, nor any part
thereof, will be encumbered in any manner by reason of any act or omission of
Tenant, or used or occupied, or permitted to be used or occupied, by anyone
other than Tenant, its employees or entities controlled by, under common control
with or controlling Tenant ("TENANT AFFILIATES"), or for any use or purpose
other than as above stated, or be sublet, or offered or advertised for
subletting, without in each case, Landlord's prior written consent, which
consent shall not be unreasonably withheld or delayed. Without limiting the
generality of the foregoing, Landlord shall not be deemed to have unreasonably
withheld its consent to an assignment or subletting if Landlord's consent is
withheld because:
(i) Tenant is then in default,
(ii) the portion of the Premises which Tenant proposes to sublet, including the
means of access and egress thereto and the proposed use thereof, or the
resulting Premises remaining, would violate any city, state, or Federal law,
ordinance, or regulation, including, without limitation, any applicable building
code or zoning ordinance;
(iii) the proposed use by the subtenant or assignee would not conform with the
uses set forth in SECTION 2 hereof,
(iv) in the reasonable judgment of the Landlord, the proposed subtenant or
assignee is of a character or is engaged in a business which would be
deleterious to the reputation of the Building, the proposed subtenant or
assignee is not financially responsible to perform its obligations under the
sublease or assignment;
(v) the proposed subtenant or assignee is a governmental or quasi-governmental
agency;
(vi) in the reasonable judgment of the Landlord, the intended use by the
proposed subtenant or assignee would be incompatible with the mix of uses of the
then existing tenants in the Building. Tenant agrees to reimburse Landlord
promptly for reasonable legal and other expenses incurred by Landlord in
connection with any request by Tenant for a consent to assignment or subletting.
In connection with any request by Tenant for Landlord's consent to assignment or
subletting, Tenant shall submit to Landlord in writing ("TENANT'S SUBLEASE
NOTICE") (i) the name of the proposed assignee or subtenant, (ii) such
information as to its financial responsibility and standing as Landlord may
reasonably require, and (iii) all of the terms and provisions upon which the
proposed assignment or subletting is to be made.
23.2 Any assignment of this Lease made hereunder shall be upon the express
condition that the assignee and Tenant shall promptly execute, acknowledge and
deliver to Landlord an
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agreement in form and substance satisfactory to Landlord whereby assignee shall
agree to be personally bound by the terms, covenants, and conditions of this
Lease on Tenant's part to be performed and whereby assignee shall expressly
agree that the provisions of this Section shall, notwithstanding such assignment
or transfer, continue to be binding upon it with respect to all future
assignments and transfers. Any sublease of the Premises or any part thereof
shall be expressly subject to the terms of this Lease and shall contain the
agreement of the subtenant thereunder that, upon Landlord's written request, it
will pay all rents under the sublease directly to Landlord. If, pursuant to this
Section, Tenant sublets the Premises or any part thereof or assigns this Lease,
Tenant shall pay to Landlord at the times and in the manner specified by
Landlord, an amount equal to seventy-five percent (75%) of the difference
between (a) all amounts which Tenant receives from a subtenant or assignee by
virtue of a subletting or assignment, after the Tenant and Landlord recover
their reasonable costs of such sublet or assignment pursuant to the provisions
of this Section, and (b) the total Rent due under this Lease (the rent to be
allocated to a sublet of less than the entire Premises shall be apportioned in
an appropriate manner, both proportionately and with due regard to the location
of the sublet space within the Premises), provided said difference is greater
than zero. No assignment or subletting of the Premises by Tenant shall relieve
Tenant from the observance or performance of any of the terms, covenants and
conditions of this Lease.
23.3 If this Lease be assigned, or if the Premises or any part thereof be sublet
or occupied by anybody other than Tenant and its employees, Landlord, may at any
time and from time to time collect Rent and other charges from such assignee,
subtenant or occupant, as the case may be, and apply the net amount collected to
the Rent and other charges herein reserved, but no such assignment, subletting,
occupancy or collection shall be deemed a waiver of the requirements set forth
in subparagraph (a) of this Section, the acceptance by Landlord of such
assignee, subtenant or occupant, as the case may be, as a tenant, or a release
of Tenant from the future performance by Tenant of its covenants, agreements and
obligations contained in this Lease. The consent by Landlord to an assignment or
subletting shall not in any way be construed to relieve Tenant from obtaining
the express consent in writing of Landlord to any further assignment or
subletting. No assignment, subletting or use of the Premises shall affect the
purpose for which the Premises may be used as stated in SECTION 2. Tenant shall
remain fully and primarily liable for all obligations hereunder, notwithstanding
any assignments, subletting or occupancy.
23.4 Subject to the provisions of this Article 23, as herein above set forth,
Tenant shall have the right to assign or sublet any or all of the Premises to
any affiliate of Tenant, successor in interest to Tenant by merger or
consolidation or sale of all or any majority portion of Tenant's stock or
assets, or any entity which controls, is controlled by or is under common
control with Tenant, subject to Landlord's written consent as herein above set
forth in SECTION 23, provided that assignee or sublessee and Lessee shall both
be jointly and severally responsible for all payments and obligations under
Lease. However, Tenant shall not be permitted to assign or sublet this lease in
accordance with the preceding sentence if such assignment or subletting has the
affect of reducing the aggregate creditworthiness of the entity or entities
which have liability to Landlord under this Lease, and it being understood that
all other provisions of Section 25 shall apply to any such assignment or
subletting.
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23.5 The listing of any name other than that of Tenant or Tenant's subsidiary,
whether on the doors of or on the Premises or on the Building directory, or
otherwise, shall not operate to vest any right or interest in this Lease or in
the Premises or be deemed to be the written consent of Landlord mentioned in
this Section, it being expressly understood that any such listing is a privilege
extended by Landlord revocable at will by written notice to Tenant, except where
the name listed is that of a sublessee, assignee, or other entity which has been
approved in writing by Lessor per this section.
24. DEFAULT
24.1 Conditions of Limitation - Re-entry - Termination. This Lease and the
herein term and estate are upon the condition that if (a) Tenant shall neglect
or fail to perform or observe any of the Tenant's covenants herein, including
(without limitation) the covenants with regard to the payment when due of Rent;
or (b) Tenant shall be involved in financial difficulties as evidenced by an
admission in writing by Tenant of Tenant's inability to pay its debts generally
as they become due, or by the making or offering to make a composition of its
debts with its creditors; or (c) Tenant shall make an assignment or trust
mortgage, or other conveyance or transfer of like nature, of all or a
substantial part of its property for the benefit of its creditors; or (d) the
leasehold hereby created shall be taken on execution or by other process of law
and shall not be revested in Tenant within sixty (60) days thereafter; or (e) a
receiver, sequester, trustee or similar officer shall be appointed by a court of
competent jurisdiction to take charge of all or a substantial part of Tenant's
property and such appointment shall not be vacated within sixty (60) days; or
(f) any proceeding shall be instituted by or against Tenant pursuant to any of
the provisions of any Act of Congress or State law relating to bankruptcy,
reorganization, arrangements, compositions or other relief from creditors, and,
in the case of any such proceeding instituted against it, if Tenant shall fail
to have such proceeding dismissed within thirty (30) days or if Tenant is
adjudged bankrupt or insolvent as a result of any such proceeding; or (g) any
event shall occur or any contingency shall arise whereby this Lease, or the term
and estate thereby created, would (by operation of law or otherwise) devolve
upon or pass to any person, firm or corporation other than Tenant, except as
expressly permitted under SECTION 23 hereof, or (h) Tenant shall vacate all or
substantially all of the Premises; then, and in any such event Landlord may, in
a manner consistent with applicable law, immediately or at any time thereafter
declare this Lease terminated by notice to Tenant, or, without further demand or
notice, enter into and upon the Premises (or any part thereof in the name of the
whole), and in either such case (and without prejudice to any remedies which
might otherwise be available for arrears of rent or other charges due hereunder
or preceding breach of covenant and without prejudice to Tenant's liability for
damages as hereinafter stated), this Lease shall terminate. The words "re-entry"
and "re-enter" as used in this Lease are not restricted to their technical legal
meaning.
24.2 Damages - Termination. Upon the termination of this Lease under the
provisions of this Article, Tenant shall pay to Landlord the Rent payable by
Tenant to Landlord up to the time of such termination, shall continue to be
liable for any preceding breach of covenant, and in addition, shall pay to
Landlord as damages, at the election of Landlord,
either:
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(x) the amount by which, at the time of the termination of this Lease (or at any
time thereafter if Landlord shall have initially elected damages under
Subparagraph (y), below), (i) the aggregate of the Rent projected over the
period commencing with such time and ending on the originally scheduled
Termination Date as stated in SECTION 3 exceeds (ii) the aggregate projected
rental value of the Premises for such period,
or,
(y) amounts equal to the Rent which would have been payable by Tenant had this
Lease not been so terminated, payable upon the due dates therefor specified
herein following such termination and until the originally-scheduled Termination
Date as specified in SECTION 3, provided, however, if Landlord shall re-let the
Premises during such period, that Landlord shall credit Tenant with the net
rents received by Landlord from such re-letting, such net rents to be determined
by first deducting from the gross rents as and when received by Landlord from
such re-letting the expenses reasonably incurred or paid by Landlord in
terminating this Lease, as well as the expenses of re-letting, including
altering and preparing the Premises for new tenants, brokers' commissions, and
all other similar and dissimilar expenses properly chargeable against the
Premises and the rental therefrom, it being understood that any such re-letting
may be for a period equal to or shorter or longer than the remaining term of
this Lease; and provided, further, that (i) in no event shall Tenant be entitled
to receive any excess of such net rents over the Sums payable by Tenant to
Landlord hereunder and (ii) in no event shall Tenant be entitled in any suit for
the collection of damages pursuant to this Subparagraph (y) to a credit in
respect of any net rents from a re-letting except to the extent that such net
rents are actually received by Landlord prior to the commencement of such suit.
If the Premises or any part thereof should be re-let in combination with other
space, then proper apportionment on a square foot area basis shall be made of
the rent received from such re-letting and of the expenses of re-letting.
Suit or suits for the recovery of such damages, or any installments thereof, may
be brought by Landlord from time to time at its election, and nothing contained
herein shall be deemed to require Landlord to postpone suit until the date when
the term of this Lease would have expired if it had not been terminated
hereunder.
The damages recoverable by Landlord pursuant to this Section shall in all events
include reimbursement of any commercially reasonable concessions made by
Landlord in connection with the leasing of the Premises to Tenant, including
without limitation (a) abated Rent, (b) allowances or improvements in excess of
any Building standard work, (c) sums paid to any former landlord of Tenant under
a so-called "take-over", lease assumption or similar agreement and (d) signing
bonuses and other incentive payments.
Nothing herein contained shall be construed as limiting or precluding the
recovery by Landlord against Tenant of any sums or damages to which, in addition
to the damages particularly provided above, Landlord may lawfully be entitled by
reason of any default hereunder on the part of Tenant.
24.3 Fees and Expenses. If Tenant shall default in the performance of any
covenant on Tenant's part to be performed as in this Lease contained and such
default continues beyond any
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applicable notice and grace period, Landlord may immediately, or at any time
thereafter, without notice, perform the same for the account of Tenant. If
Landlord at any time is compelled to pay or elects to pay any sum of money, or
do any act which will require the payment of any sum of money, by reason of the
failure of Tenant to comply with any provision hereof which continues beyond any
applicable notice and grace period, or if Landlord is compelled to or does incur
any expense, including without limitation reasonable attorneys' fees, in
instituting, prosecuting and/or defending any action or proceeding arising by
reason of any default of Tenant hereunder, Tenant shall on demand pay to
Landlord by way of reimbursement the sum or sums so paid by Landlord with all
interest, costs and damages. Without limiting the generality of the foregoing,
in the event that any rent is more than ten (10) days in arrears, Tenant shall
pay, as Additional Rent, a delinquency charge equal to two and one-half percent
(2 1/2%) of the arrearage for each calendar month (or fraction thereof) during
which it remains unpaid.
24.4 Landlord's Remedies Not Exclusive. The specified remedies to which Landlord
may resort hereunder are cumulative and are not intended to be exclusive of any
remedies or means of redress to which Landlord may at any time be lawfully
entitled, and Landlord may invoke any remedy (including without limitation the
remedy of specific performance) allowed at law or in equity as if specific
remedies were not herein provided for.
25. LANDLORD'S RIGHT TO CURE. If Tenant shall default in the observance or
performance of any term, covenant or condition on its part to be observed or
performed under this Lease, Landlord, without being under any obligation to do
so and without thereby waiving such default, may remedy such default for the
account and at the expense of Tenant, immediately and without notice in case of
emergency, or in any other case, if Tenant shall fail to remedy such default
with all reasonable diligence within the time set forth under SECTION 24 and
after Landlord shall have notified Tenant of such default. If Landlord makes any
expenditures or incurs any obligations for the payment of money in connection
therewith, including, but not limited to reasonable attorneys' fees, such sums
paid or obligations incurred, with interest at the rate of interest set forth in
SECTION 10, shall be paid to Landlord by Tenant as Rent hereunder.
26. SUBORDINATION/RIGHTS OF MORTGAGEES.
26.1 It is agreed that the rights and interests of the Tenant under this Lease
shall be (i) prior to the lien of any present mortgagee, or (ii) subject to and
subordinate to any mortgages that may hereafter be placed upon the Building, and
to any and all advances to be made thereunder, and to the interest thereon, and
all modifications, renewals, replacements, and extensions thereof, if the
mortgagee named in said Mortgages shall elect by written notice delivered to the
Tenant to subject and subordinate the rights and interest of the Tenant under
this Lease to the lien of its mortgage, provided, however, that as a condition
to any subordination of this Lease, Landlord shall obtain from any such
mortgagee a so-called recognition, attornment and non-disturbance agreement. In
the event of such election and upon notification by such mortgagee to the Tenant
to that effect, provided the foregoing condition shall have been satisfied, the
rights and interest of the Tenant in this Lease shall be deemed to be
subordinate to the lien of said mortgage, whether or not this Lease is dated
prior to such mortgage, and the Tenant shall execute and deliver whatever
instruments may be reasonably required for such purposes. The Tenant also agrees
that, if it shall fail at any time to execute, acknowledge and deliver such
instrument requested by the Landlord consistent with this SECTION 26 within
fifteen (15) days of receipt thereof by the
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Tenant, Landlord shall be entitled to send a second request; and if the Tenant
fails to execute, acknowledge and deliver such instrument within ten (10) days
of such second request, then, in addition to any other remedies available to it,
the Landlord may execute, acknowledge and deliver such instrument as the
attorney-in-fact of the Tenant and in the Tenant's name; and the Tenant hereby
makes, constitutes and irrevocably appoints the Landlord as its attorney-in-fact
for that purpose. The word "mortgage" as used herein includes mortgages, deeds
of trust, or other similar instruments, and modifications, consolidations,
extensions, renewals, replacements and substitutes thereof.
26.2 Upon entry and taking possession of the mortgaged property for any purpose
other than foreclosure, the holder of a mortgage shall have all rights of
Landlord and, during the period of such possession, the duty to perform all
Landlord's obligations hereunder. Except during such period of possession, no
such holder shall be liable, either as mortgagee or as holder of a collateral
assignment of this Lease, to perform, or be liable in damages for failure to
perform, any of the obligations of Landlord unless and until such holder shall
enter and take possession of the mortgaged property for the purpose of
foreclosing a mortgage. Upon entry for the purpose of foreclosing a mortgage,
such holder shall be liable to perform all of the obligations of Landlord,
provided that a discontinuance of any foreclosure proceeding shall be deemed a
conveyance to the owner of the equity of the mortgaged Premises.
26.3 No act or failure to act on the part of Landlord which would entitle Tenant
under the terms of this Lease, or by law, to be relieved of Tenant's obligations
hereunder or to terminate this Lease, shall result in a release or termination
of such obligations or a termination of this Lease unless (1) Tenant shall have
first given written notice of Landlord's act or failure to act to Landlord's
mortgagees of record of which Tenant shall have been given notice, if any,
specifying the act or failure to act on the part of Landlord which could or
would give basis to Tenant's rights and (ii) such mortgagees, after receipt of
such notice, have failed or refused to correct or cure the condition complained
of within a reasonable time thereafter, but nothing contained in this Section
shall be deemed to impose any obligation on any such mortgagee to correct or
cure any such condition.
26.4 The covenants and agreements contained in this Lease with respect to the
rights, powers and benefits of a mortgagee (particularly without limitation
thereby, the covenants and agreements contained in this SECTION 26) constitute a
continuing offer to any person, corporation or other entity, which by accepting
or requiring an assignment of this Lease or by entry or foreclosure assumes the
obligations herein set forth with respect to such mortgagee. Such mortgagee is
hereby constituted a party to this Lease as an oblige hereunder to the same
extent as though its name, was written hereon as such, and such mortgagee shall
be entitled to enforce such provisions in its own name. Tenant agrees on request
of Landlord to execute and deliver from time to time any agreement which may
reasonably be deemed necessary to implement the provisions of this SECTION 28.
27. SURRENDER OF POSSESSION; HOLDOVER.
27.1 At the expiration or earlier termination of the Term of this Lease, Tenant
will remove Tenant's Property and shall peaceably yield up to Landlord the
Premises in the same condition as
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they were on the Commencement Date, together with the Improvements made pursuant
to SECTION 7 hereof, except for reasonable wear and tear and damage by fire or
other casualty.
27.2 If Tenant remains in the Premises beyond the expiration or earlier
termination of the Term of this Lease such holding over shall not be deemed to
create any tenancy, but the Tenant shall be a Tenant-at-Sufferance only and
shall pay rent to Landlord at the times and manner determined by Landlord at a
daily rate in an amount equal to one and one-half (11/2) times the daily rate of
the Rent and other sums payable under this Lease as of the last day of the Term
of this Lease.
27.3 No act or thing done by Landlord during the term hereby shall be deemed an
acceptance of a surrender of the Premises, and no agreement to accept such
surrender shall be valid, unless in writing signed by Landlord. No employee of
Landlord or of Landlord's agents shall have any power to accept the keys of the
Premises prior to the termination of this Lease. The delivery of keys to any
employee of Landlord or of Landlord's agents shall not operate as a termination
of the Lease or a surrender of the Premises. In the event that Tenant at any
time desires to have Landlord underlet the Premises for Tenant's account,
Landlord or Landlord's agents are authorized to receive the keys for such
purposes without releasing Tenant from any of the obligations under this Lease,
and Tenant hereby relieves Landlord of any liability for loss of or damage to
any of Tenant's effects in connection with such underletting.
28. NOTICES. Any notice or demand by Tenant to Landlord shall be served by hand,
reputable over-night courier which provides a receipt, or by registered or
certified mail return receipt requested addressed to Landlord at the address
above indicated, with a courtesy copy to Xxxxxxx Xxxxxx, 00 Xxxxxxx Xxxxxx 0xx
Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, until otherwise directed in writing by
Landlord, and any notice or demand by Landlord to Tenant shall be served by
hand, by reputable overnight courier which provides a receipt, or by registered
or certified mail addressed to Tenant at the Premises, with a courtesy copy to
------------------------, until otherwise directed in writing by Tenant. Notice
or demand shall be deemed given on the earlier of actual receipt or five (5)
days after being mailed as aforesaid.
29. RULES AND REGULATIONS. Tenant will faithfully observe and comply with such
reasonable and nondiscriminatory Rules and Regulations as Landlord hereafter at
any time or from time to time may make and may communicate in writing to Tenant,
which in the judgment of Landlord shall be necessary for the reputation, safety,
care or appearance of the Building, or the preservation of good order therein,
or the operation or maintenance of the Building, or any equipment relating
thereto, or the comfort of tenants or others in the Building. The Rules and
Regulations in effect on the date hereof are attached as EXHIBIT B. If this
Lease shall conflict with any such Rules and Regulations, the provisions of this
Lease shall control. Landlord shall not have any duty or obligation to enforce
the Rules and Regulations or the terms, covenants or conditions in any other
lease as against any other tenant and Landlord shall not be liable to Tenant for
violation of the same by other tenants, their servants, employees, agents,
visitors, invitees or licensees, however Landlord will use reasonable efforts to
uniformly enforce the Rules and Regulations.
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30. QUIET ENJOYMENT. Tenant, on paying the Rent and other sums payable hereunder
and performing the covenants of this Lease on its part to be performed, shall
and may peaceably and quietly have, hold and enjoy the Premises for the Term of
this Lease.
31. LIMITATION OF LANDLORD'S LIABILITY. Except as otherwise expressly provided
in this Lease, this Lease and the obligations of Tenant to pay Rent hereunder
and perform all other covenants, agreements, terms, provisions and conditions
hereunder on the part of Tenant to be performed shall in no way be affected,
impaired or excused because Landlord is unable to fulfill any of its obligations
under this Lease or is unable to supply or is delayed in supplying any service
expressly or impliedly to be supplied or is unable to make or is delayed in
making any repairs, replacements, additions, alterations, improvements or
decorations or is unable to supply or is delayed in supplying any equipment or
fixtures if Landlord is prevented or delayed from doing so by reason of any
cause whatsoever beyond Landlord's reasonable control, including but not limited
to governmental preemption in connection with a national emergency or by reason
of any rule, order or regulation of any department or subdivision thereof of any
governmental agency or by reason of strikes, labor troubles, shortages of labor
or materials or conditions of supply and demand which have been or are affected
by war, hostilities or other similar or dissimilar emergency. In each such
instance of inability of Landlord to perform, Landlord shall exercise reasonable
diligence to eliminate the cause of such inability to perform. Tenant shall
neither assert nor seek to enforce any claim for breach of this Lease against
any of Landlord's assets other than Landlord's interest in the Building of which
the Premises are a part and in the rents, issues and profits thereof; and Tenant
agrees to look solely to such interest for the satisfaction of any liability of
Landlord under this Lease, it being specifically agreed that in no event shall
Landlord (which term shall include, without limitation any of the officers,
trustees, directors, partners, beneficiaries, joint venturers, members,
stockholders or other principals or representatives, disclosed or undisclosed,
of Landlord or any managing agent) ever be personally liable for any such
liability. This paragraph shall not limit any right that Tenant might otherwise
have to obtain injunctive relief against Landlord or to take any other action
which shall not involve the personal liability of Landlord to respond in
monetary damages from Landlord's assets other than the Landlord's interest in
said real estate, as aforesaid. In no event shall Landlord ever be liable for
consequential damages.
32. BINDING AGREEMENT. This Lease shall bind and inure to the benefit of the
parties hereto and such respective heirs, representatives, successors or assigns
as are permitted by this Lease. This Lease contains the entire agreement of the
parties and may not be modified except by an instrument in writing.
33. NOTICE OF LEASE. Tenant agrees that it will not record this Lease. Landlord
and Tenant shall, upon request of either, execute and deliver a notice of this
Lease in such recordable form as may be permitted by applicable statute. In no
event shall such document set forth the rent or other charges payable by Tenant
under this Lease; and any such document shall expressly state that it is
executed pursuant to the provisions contained in this Lease and is not intended
to vary the terms and conditions of this Lease, except by written document
executed in accordance with SECTION __ of the Lease.
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34. ESTOPPEL CERTIFICATE. Landlord and Tenant agree on the Commencement Date,
and from time to time thereafter upon not less than fifteen (15) days' prior
written request by the other, to execute, acknowledge and deliver to the other a
statement in writing in form mutually satisfactory to Landlord and Tenant
certifying that this Lease is unmodified and in full force and effect; that to
the best of their knowledge, Landlord and Tenant have no defenses, offsets or
counterclaims against the other; that to the best of their knowledge there are
no uncured defaults of Landlord or Tenant under this Lease (or, if there have
been any modifications, that this Lease is in full force and effect as modified
and stating the modifications and, if there are any defenses, offsets,
counterclaims, or defaults, setting them forth in reasonable detail); and the
dates to which the Rent and other charges have been paid. Any such statement
delivered pursuant to this SECTION 34 may be relied upon by any prospective
purchaser or mortgagee of Building which include the Premises or any prospective
assignee of any such mortgagee, and by any prospective subtenant, assignee or
lender of or to Tenant.
35. GENERAL PROVISIONS.
35.1 The various rights and remedies contained in this Lease and reserved to
each of the parties shall not be exclusive of any other right or remedy of such
party, but shall be construed as cumulative and shall be in addition to every
other remedy now or hereafter existing at law, in equity, or by statute. No
delay or omission of the right to exercise any power by either party shall
impair any such right or power, or shall be construed as a waiver of any default
or as acquiescence in any default. One or more waivers of any covenant, term or
condition of this Lease by either party shall not be construed by the other
party as a waiver of a subsequent breach of the same covenants, terms or
conditions. Acceptance by Landlord of a lesser sum than the Rent then due shall
be deemed to be an account of the earliest installment of such Rent, and
endorsements or statements on checks or letters accompanying any check or
payment as Rent shall not be deemed as accord and satisfaction, and Landlord may
accept such check or payment without prejudice to Landlord's right to recover
the balance of such installment or pursue any other remedy provided in this
Lease. The consent or approval of either party to or of any act by the other
party of a nature requiring consent or approval shall not be deemed to waive or
render unnecessary consent to or approval of any subsequent similar act.
35.2 Payments to Landlord under this Lease are rental for the use of the
Premises, and nothing herein contained shall be deemed or construed to make
Landlord a partner or associate of Tenant in the conduct of any business, nor as
rendering Landlord liable for any debts, liabilities or obligations incurred by
Tenant in the conduct of any business, it being expressly agreed that the
relationship between the parties is, and shall at all times remain, that of
landlord and tenant.
35.3 All amounts payable by Tenant to Landlord under any provision of this
Lease, other than pursuant to SECTION 4 shall be deemed to be additional rent
for the use of the Premises, and Landlord shall have the same remedies for the
nonpayment of such amounts as for the nonpayment of other rents. Wherever and
whenever Basic Rent abates, additional rent shall also xxxxx.
35.4 Where the words "LANDLORD" and "TENANT" are used in this Lease they shall
include Landlord and Tenant and shall apply to persons, both men and women,
associations, partnerships and corporations, and in reading this Lease the
necessary grammatical changes required to make
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the provisions hereof mean and apply to them shall be made in the same manner as
if written into the Lease; the words "Landlord" and "Lessor" may be used
interchangeably, and the words "Tenant" and "Lessee" may be used
interchangeably.
35.5 Tenant hereby declares that in entering into this Lease, Tenant relied
solely upon the statements contained in this Lease and fully understands that no
agents or representatives of Landlord have authority to in any manner change,
add to or detract from the terms of this Lease except by written document
executed in accordance with SECTION 28 of this Lease.
35.6 The invalidity of one or more of the provisions of this Lease shall not
affect the remaining portions of this Lease; and, if any one or more of the
provisions of this Lease should be declared invalid by final order, decree or
judgment of a court of competent jurisdiction, this Lease shall be construed as
if such invalid provisions had not been included in this Lease.
35.7 If Tenant shall be two or more persons or entities, each such person or
entity shall be jointly and severally liable for the payment of all sums due to
Landlord from Tenant under this Lease and the performance of all of Tenant's
covenants, agreements, or obligations under this Lease.
36. STANDARDS FOR LANDLORD'S PERFORMANCE. Landlord covenants and agrees with
Tenant that the performance of all of Landlord's obligations hereunder, and the
provision and maintenance of all services to be provided by Landlord hereunder,
shall at all times be consistent with the operation of comparable office
buildings in the City of Boston, and all services shall be provided as
efficiently and economically as reasonably possible consistent with such
standard.
37. LIEN WAIVERS. Landlord agrees to execute, acknowledge and deliver to Tenant
such Lien Waivers on Tenant's assets and inventory as may be reasonably
requested by Tenant on behalf of any party providing financing within ten (10)
days of a written request therefore, provided that Tenant is not then in default
of any provisions in this Lease.
38. OPTION TO EXTEND AND EXPAND.
38.1 Extension Option. Provided that at the time of the exercise of this option
Tenant is not in default beyond any applicable grace period of any of its
obligations under this Lease, Tenant shall have the option to extend the term of
the Lease for the mezzanine level portion(s) of the Premises (portions A and B-
this option to extend is for A and B together, not as separate spaces) for two
(2) years beginning from the expiration of five (5) years and one (1) month from
the Lease Effective Date, (The "EXTENDED TERM"). The intent is to tie the
Extension Term for the mezzanine level space to the current term of the lobby
level space, if Tenant should choose to exercise this Extension as herein
provided. The Termination of the Extension Term shall be made to coincide with
the Termination of the original seven (7) year and one (1) month term of the
lobby level portion of the Premises.
Tenant shall exercise this option for the Extended Term by written notice to
Landlord given at least 180 calendar days prior to the expiration of five (5)
years and one (1) month from the Lease Effective Date ("EXTENSION NOTICE"). The
terms and conditions of the Lease for the Extended
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Term shall be the same as for the initial term, including for payment of Real
Estate and CPI clauses, except that there shall be no further options to extend.
38.2 Expansion Option. Provided that no default has occurred and is continuing
under the Lease at the time of the exercise of the following Expansion Option,
Tenant shall have a right of First Offer for available contiguous office space
on the mezzanine and fourth floors (the "EXPANSION SPACE"), at the then market
Rent with a minimum term of five (5) years; this right of First Offer is subject
and subordinate to any similar prior rights which existing Tenants may have. It
is understood and agreed that any expansion space may be offered to Tenant
pursuant to this clause well before said space is actually vacated, and that any
expansion space may be offered to Tenant pursuant to this clause at any
appropriate time, including for example, when a Tenant notifies Landlord of its
intention to vacate from potential expansion space, or prior to the time when a
Lease is scheduled to terminate, or at any time when the Landlord would normally
seek to offer for rent such space.
(i) prior to offering all or any portion of the Expansion Space to others,
except to any existing tenants with prior rights at the Building, Landlord shall
notify Tenant in writing of the specific space being offered and the rent and
other terms on which it is being offered. Tenant shall have fifteen (15) days
from receipt of Landlord's notice to accept the space being offered by providing
written notice of such acceptance to Landlord.
(ii) For a period of fifteen (15) days after receipt of any such notice from
Landlord pursuant to this SECTION 38.2, Tenant shall have the right to lease the
Expansion Space from Landlord upon the terms and conditions set forth in such
offer, and otherwise on the terms and conditions set forth herein. The terms and
conditions of the Lease for the Expansion Space, shall generally be the same as
for the initial Term. In the event Tenant agrees to lease the Expansion Space
within such fifteen (15) day period, Landlord and Tenant shall promptly execute
an amendment to the Lease, or new lease, indicating the location and
configuration of the Expansion Space and stating the rent and other terms
therefore.
(iii) If during or upon the expiration of such fifteen (15) day period, Tenant
fails or declines to exercise its right to lease the Expansion Space then
Tenant's option to exercise this option with respect to such Expansion Space
shall cease and expire and be of no further force or effect until such time as
the Expansion Space is again vacated by the tenant of such space or otherwise
becomes available as provided below.
The Basic Rent for any said expansion space shall be the then current fair
market annual rent for 5 year leases of comparable Premises in the Fort Point
Channel area of the City of Boston commencing on the date such expansion term is
anticipated to begin, as reasonably and in good faith determined by Landlord and
in consultation with Lessee. Further, it is the intention of the parties that
the rent for the said term (5 years or otherwise) shall reflect the fair market
rent during such period.
In determining fair market rent, Lessor and Lessee shall consider, among other
things, operating expenses for commercial office properties in the Fort Point
Channel area of Boston, the inflation CPI, location of the Building and of the
Premises within the Building, and building amenities
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and condition, on-site parking and public transportation.
If Tenant disagrees with Landlord's determination of fair market annual rent for
such Expansion Term, Tenant shall notify Landlord of Tenant's objection to said
amount by written notice within twenty (20) days from the receipt of Landlord's
Notice. If Tenant so notifies Landlord, then the amount of the Basic Rent for
such Expansion Term shall be decided by two reputable appraisers with the MAl
(Member Appraisal Institute) designation from the American Institute of Real
Estate Appraisers and each with at least ten (10) years of experience in
appraising commercial office space in the Fort Point Channel of downtown Boston
comparable to the Premises, one selected by Landlord and one selected by Tenant,
based on the then fair market annual rent for leases of comparable lengths as
are contemplated for the expansion area lease of comparable Premises in the Fort
Point Channel area of the City of Boston commencing on the date such lease would
commence. In determining fair market rent, Landlord and the appraiser(s) shall
consider, among other things, operating expenses for commercial office
properties in the Fort Point Channel area of the City of Boston, the inflation
CPI, location of the Building and of the Premises within the Building, and
building amenities and condition, on-site parking and public transportation.
Landlord and Tenant shall each notify the other of its chosen appraiser within
ten (10) days of Landlord's receipt of Tenant's objection notice. Unless the
appraisers shall have reached a decision within ten (10) days after their
selection, they shall select an impartial third MAl appraiser qualified as above
within another ten (10) days. The three appraisers shall render their decision
within ten (10) days following the selection of the third appraiser and shall
notify Landlord and Tenant thereof. The unanimous written decision of the two
first chosen (without selection and participation of a third appraiser), or
otherwise the written decision of a majority of the three appraisers chosen as
herein provided shall be conclusive and binding upon Landlord and Tenant.
Landlord and Tenant shall each pay their own appraisers and, if a third
appraiser is needed as above, shall share his or her cost.
39. PARKING. On or about the Effective Date of Lease, Lessor shall provide four
(4) parking spaces to Lessee (two single spaces and one tandem/double space) and
as soon as available Lessor shall provide one additional parking space to
Lessee. Parking shall be as per a separate agreement.
40. COMPLIANCE WITH LAW. Landlord believes that the building and the Premises
and the office use thereof are in material compliance with all applicable
zoning, land use, environmental laws, and all other applicable laws and
ordinances including ADA and agreements and the requirements of all easement and
encumbrance documents and Landlord shall endeavor to keep the same in compliance
throughout the Term. Landlord believes to the best of his knowledge, information
and belief that installation of interior staircases as contemplated in this
Lease are permitted by law.
(This area left intentionally blank)
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IN WITNESS WHEREOF, the parties hereto have executed this Lease in duplicate,
the original as a sealed instrument on the day and year first above written,
LANDLORD:
RETALS, Ltd
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Retals, Inc., General Partner
Xxxxxxx X. Xxxxxx, Vice President
TENANT:
Student Advantage LLC
By: /s/ XXXXXXX X. XXXXX
----------------------------------
(This area left intentionally blank)
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EXHIBIT A
SPECIFICATIONS FOR CLEANING SERVICES
(to be provided substantially as set forth herein)
Monday through Friday except as per lease,
State and Federal Holidays excluded
DAILY:
Lobby and Common Areas - nightly
- wash all glass doors and trim
- spot clean walls
- empty and wipe clean all standing brass ashtrays
clean directory, wash glass, spot clean brass
- vacuum all carpets and mats
- polish brass railings, door handles, front entrance glass
door brass fittings, ashtrays
- spray buff lobby floor (terrazzo)
- hose and clean front of building and canopy periodically
- spot clean carpet
OFFICE AREAS:
- empty and wipe clean wastebaskets, change liners nightly
- empty and wipe clean all ashtrays
- dust all desktops, equipment and fixtures in office space
including tops of binders and workstations
- dust window xxxxx
- dry mop tile floors
- spot clean tile floors with wet mop as needed
- spot clean carpet
- vacuum carpet
- vacuum stairway carpet
LAVATORIES:
- clean and sanitize sinks, urinals, toilets, toilet seats
with disinfectant
- scour wash and disinfect all basins, bowls and urinals
- wipe clean counters, shelves and mirrors
- empty and wipe clean wastebaskets, change liners nightly
- sweep and mop floors with disinfectant
- spot clean walls
- all paper goods and hand soap supplied by management-scrub
restrooms as required
ELEVATORS:
- clean and polish interior and exterior of elevators to
include hardwood panel walls, finish door, grates, floors
and control panels
- vacuum elevator floors and spot clean carpet with shampoo as
needed
- sweep out and vacuum elevator thresholds on every occupied
floor
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(Exhibit A - Specifications for Cleaning Services continued)
KITCHENETTES:
- wipe clean all tabletops, chairs, counters, sinks, cabinets,
appliances, vending machines and inside microwaves
- wet mop tile floors
- empty and wipe clean wastebaskets, change liners nightly
WEEKLY SERVICES:
LOBBY AND COMMON AREAS:
- wash all ways, glass and marble
- thoroughly clean directory
- polish all lobby brass
OFFICE AREAS:
- remove fingerprints and smudges from all doors, door frames,
partitions and walls to a height of 6 feet
- spot clean walls, doors, woodwork, furniture, fixtures,
files and glass
- dust furniture, fixtures, files, window
xxxxx, baseboards and registers
- dust blinds
- clean all glass table tops, desks and tables
STAIRWAYS AND STAIRWELLS:
- sweep and dust thoroughly
MONTHLY LOBBY:
- high dusting of all overhead fight fixtures, pipes and
molding
- high dusting to a height of 6 feet to include
picture frames, clocks, shelving and ledges
- high dusting in lobby of molding and ledges over height of
6 feet
- windows: shall be washed 3 times in a calendar year
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EXHIBIT B
RULES AND REGULATIONS
1. The sidewalks, entries, passages, elevators and stairways shall not be
obstructed by any of the tenants, or used by them for any other purpose than for
ingress and egress from their respective Premises; and no office furniture or
other furnishings or equipment shall be moved without prior notice to the
Lessor, and then only during such hours and through such passages, elevator and
stairways the Lessor my assign.
2. The floors, skylights and windows that reflect or admit light into the
passageways or into any place in the building shall not be covered or obstructed
by any tenant. The toilets and other plumbing fixtures shall not be used for any
purposes other than those for which they were constructed, and no sweepings,
rubbish, cigarettes or other substances shall be thrown therein.
3. Tenants, their agents and employees, must not leave the windows of the Leased
Premises open or uncared for when it rains or snows, or when a storm is
probable.
4. No hole shall be drilled or made in the stone or brick work of the building;
and no nails, staples or screws shall be driven into the plaster, woodwork or
floors; and no aerials or flagpoles or the like placed on the outside of said
building. No sign, advertisement or notice shall be inscribed, painted or
affixed on any part of the outside or inside of the building, except of such
color, size and style, and in such places upon or in said building as shall be
first designated by the Lessor and endorsed hereon. No awnings or window-shades
shall be placed on or in the building, except such as are uniform in material
and style with those in use or approved by the Lessor. No iron or steel safes
shall be placed in said building except of such weight and in such positions as
the Lessor shall have first approved.
5. No tenant shall do or permit anything to be done in the Premises occupied by
him, or bring or keep anything therein which will in any way increase the rate
of fire insurance on the building, or on property kept therein, or obstruct or
interfere with the rights of other tenants, or in any way injure or annoy them,
or conflict with the laws relating to fires or with the regulations of the Fire
Department or with any insurance policy upon the building, or any part thereof,
or with any of the rules or ordinances of the City of Boston.
6. Tenants must upon the termination of their respective leases, leave the
windows in leased Premises in the condition in which they were at the dates of
such leases, and must then restore all keys delivered to them.
7. Tenants, their agents and employees, shall not make nor permit any improper
noises in the building, smoke tobacco in the elevators, of interfere in any way
with other tenants or those having business with them.
8. Nothing shall be thrown out of the windows or down the passages or skylights
of the building nor may any sweepings, rubbish, cigarettes or other debris
thrown or left in the passageways, stairways, toilet rooms, entries or
sidewalks, by the tenants, their agents or employees, except in receptacles
placed by the lessor for the purpose.
9. No animals shall be kept in or about the Leased Premises.
10. No tenant shall use any other method of heating than that provided for
within the lease, without special written agreement with the lessor.
11. The Lessor reserves the right to make such other and further rules and
regulations as in the Lessor's judgment may from time to time be needful for the
safety, care and cleanliness of the building, and for tile preservation of good
order therein.
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EXHIBIT C
Resolutions Adopted by Consent Vote as of February ___, 1998
VOTED: That the Board consent to the execution of a new lease of
approximately 21,100 rentable square feet in a building located at 000
Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx in a building owned by Retals,
Ltd.;
VOTED: That the President, Vice-President, Treasurer and Clerk are, and
each of them acting singly is, authorized in the name and on behalf of
the Company to execute and deliver the Lease, a Notice of Lease and
such other certificates, instruments, and documents which such officer
deems necessary or desirable to effectuate the transactions described
herein.
(This area left intentionally blank)
35
35
CLERK' S CERTIFICATE
I, _____________________ the duly elected and acting clerk of Student Advantage,
LLC (the "Company") hereby certify as follows:
1. I am the duly elected and authorized clerk of the Company.
2. Attached hereto as EXHIBIT C is a true and correct copy of certain
resolutions which were adopted by unanimous consent of the Board of
Directors of the Company as of February ___, 1998.
3. __________________________ is a Vice President and Treasurer of the
Company.
EXECUTED as of this ___ day of February, 1998.
____________________________, Clerk
COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss. February ___, 1998
Then personally appeared the above-named ___________________ the clerk of
Student Advantage, LLC and acknowledged the foregoing instrument as his free act
and deed and the free act and deed of the Company, before me.
------------------------------------
Notary Public
My Commission expires:
38
36
OFFICE LOCATIONS
000 Xxxxxx Xx. Xxxxxx, XX 00000
000 Xxxxxxxx Xx. Xxxxxx, XX 00000
CAMPUS DEVELOPMENT
000 Xxxx Xxx. Xxx. 000 Xxxxx Xxx Xxxx, XX 00000
0000 Xxxxxxxx Xxx. Xxx. 000 Xxxxxxxx, XX 00000
0000 Xxxxxxxxx Xx. XX Xxxxx 000.X Xxxxxxx, XX 00000
0000 Xxxxxxxxx Xxx. XX 0xx Xxxxx Xxxxxxxxxx, XX 00000
0000 Xxxxxxxx Xxxx., Xxx. 000 Xxx Xxxxxxx, XX 00000
0000 Xxxxxxxxxx Xxxxxx, Xxx. 000 Xxxxxx, XX 00000
000 Xxxxxxxxxx Xxxxx #000 Xxxxxxxx, XX 00000
NEW MEDIA
000 Xxxxxxxxxx Xxxxx #000X Xxxxxxxx, XX 00000
000 Xxxxxxxxxxxx Xxx. Xxxxxx, XX 00000
37
LEASE
Dated September __, 1998
I. Retals, Ltd, c/o Teel Realty, Xxxxxxx X. Xxxx, Managing Agents, 0000
Xxxxxxxxxxxx Xxxxxx, #0, Xxxxxxxx, XX 00000 (telephone 000-000-0000),
Lessor, hereby LEASES unto Student Advantage, LLC, with an address of 000
Xxxxxx Xxxxxx, (xxx "Xxxxxxxx"), Xxxxxx, Xxxxxxxxxxxxx, LESSEE
(Landlord/Lessor and Tenant/Lessee can be used interchangeably), the
premises located on the fourth floor of the Building, on the North Corner,
containing 0000 Xxxxxxxx Xxxxxx Feet (RSF), which is an agreed figure for
all purposes (formerly occupied by Direct Results) together with the right
to use in common with others the toilet rooms nearest thereto and the
entries, passageways, elevators and stairways necessary for ingress to and
egress from said premises, SUBJECT to the Rules and Regulations in regard
to said building as printed on this lease or at any time applicable, and to
the covenants hereinafter set forth, and to existing agreements of record
concerning the party walls and windows therein, and RESERVING to the Lessor
the right to maintain, use, repair and replace pipes, ducts, wires, meters,
and any other equipment, machinery, apparatus and fixtures serving any part
of said building, and the right to change from time to time the water,
electricity and other utilities serving said premises so that any utility
may be provided either by the Lessor or directly by the city or utility
company serving said building.
II. TO HAVE AND TO HOLD for the term of two (2) years beginning with the 1st
day of October, 1998, unless sooner terminated as hereinafter provided.
III. YIELDING AND PAYING rent at the rate of $58,050 per year, ($21.50 RSF), by
equal monthly payments in advance of $4,837.50 on the first of each month
for the term of this lease (2 years).
IV. The Lessor agrees to furnish heat to said premises and said passageways,
stairways and toilet rooms during reasonable business hours of the cold
season of each year, to furnish elevator service, attended or automatic,
and to light said passageways and stairways during reasonable business
hours, and to furnish such cleaning service as is customary in similar
office buildings in said Boston, all without charge but subject to
interruption due to any accident, to the making of repairs, alterations or
improvements, to labor difficulties, to trouble in obtaining fuel,
electricity, service or supplies from the sources from which they are
usually obtained for said building, or to any cause beyond the Lessor's
control.
V. The Lessee acknowledges that said premises are in good order, repair and
condition and that all glass is whole, and COVENANTS during said term and
such further time as the Lessee holds any part of said premises:
(a) to use said premises only for office purposes;
(b) to observe and respect in all particulars the Rules and Regulations in
regard to said building as printed on this Lease or at any time
applicable;
(c) to pay when due said rent and charges for electricity, including for
air conditioning and other utilities and additional rent from time to
time serving said premises whether furnished by the city, a utility
company or the Lessor;
38
(d) damage by fire or unavoidable casualty excepted, to keep said premises
substantially in as good order, repair and condition as the same are
in at the commencement of said term, or may be put in thereafter, and
to make all repairs which the Lessee may desire, using workmen
furnished by the Lessor, but at the expense of the Lessee;
(e) not to injure, overload or deface said premises, nor permit on said
premises any auction sale or any inflammable fluids or chemicals or
any nuisance or the emission therefrom of any objectionable noise or
odor, nor permit any use of said premises which is improper,
offensive, contrary to law or ordinance, or liable to invalidate or
increase the premiums for any insurance on the building or its
contents or liable to render necessary any alteration or additions to
the building, and not to obstruct in any manner the hallways,
stairways, elevators and other common facilities in said building, or
the sidewalks or other approaches to said buildings; not to install
any air conditioning unit or system or other electrical apparatus
without previous written consent of Lessor, which shall not be
unreasonably withheld;
(f) not to assign this Lease, nor make any sublease, nor make any
alterations or additions, without on each occasion obtaining prior
written consent of the Lessor;
(g) to save the Lessor harmless and indemnified from any injury, loss,
claim or damage to any person or property while on said premises or in
transit thereto or therefrom, unless due to negligence of the Lessor,
and to any person or property anywhere occasioned by the omission,
negligence or default of the Lessee or of employees or visitors of the
Lessee; and to compensate the Lessor for any damage to said premises
or any part of said building by the Lessee or any agent or servant of
the Lessee or anyone, in conveying any articles including office
furniture, furnishings and equipment, and merchandise, to or from said
premises, or in violating any of said Rules and Regulations or these
covenants; and that all property of any kind that may be on said
premises shall be at the sole risk of the Lessee;
(h) to permit the Lessor and the Lessor's agents to examine the premises
at reasonable times, and, if the Lessor shall so elect, to make any
repairs or additions the Lessor may deem necessary, and at the
Lessee's expense to remove any alterations, additions, signs, awnings,
aerials or flagpoles, or the like, not consented to in writing, and to
show the premises to prospective purchasers and tenants and to keep
affixed to any suitable part of the premises during the three months
preceding the expiration of said term or any extension thereof a
notice for letting or selling;
(i) not to permit any employees or visitors of the Lessee to violate any
covenant or obligation of the Lessee hereunder.
(j) no act or thing done by Lessor or Lessor's agent during the term
hereby demised shall constitute an eviction by Lessor, nor shall such
be deemed an acceptance or surrender of said premises, and no
agreement to accept surrender shall be valid unless in writing signed
by Lessor; no employee or Lessor or Lessor's agent shall have any
power to accept the keys of said premises prior to the termination of
the lease. The delivery of keys to any employee of Lessor or of
Lessor's agent shall not operate as a termination of the lease or a
surrender of the premises.
VI. The Lease further COVENANTS:
(k) that this lease shall not bind the Lessor in any manner until approved
and executed on behalf of the Lessor.
(l) in case the Lessee has possession of any part of said premises prior
to the commencement of said term, to perform and observe all of the
Lessee's covenants from and after the date of such possession except
that rent shall be apportioned until the beginning of said term.
(m) at the termination of this lease to remove the Lessee's goods and
effects peaceably to yield up said premises and all additions thereto
broom clean and in good order, repair and condition, damage by fire or
unavoidable casualty excepted;
(n) that the Lessor may, at the Lessor's option, remove and store in any
public warehouse or elsewhere at the Lessee's risk and expense and in
the name of the Lessee any or all property not removed from said
premises at the expiration of forty-eight hours after the termination
of this Lease; and that if at the expiration of said forty-eight hours
the Lessee shall be in default under the provisions hereof, the Lessor
may immediately or at any time thereafter, and without notice, sell at
public or private sale any or all of such property not so removed and
apply the net proceeds of such sale to the payment of any sum or sums
due hereunder and the Lessor shall not be liable to the Lessee or to
any other person in any manner whatsoever by reason of such removal
or sale or anything done in connection therewith except to apply
the net proceeds of any such sale as aforesaid.
(o) to pay the Lessor's expenses, including reasonable attorneys' fees,
incurred in enforcing any of the Lessee's obligations under this
lease.
-2-
39
40
VII. PROVIDED ALWAYS that in case said premises or building, or any part
thereof, shall be taken by any exercise of the right of eminent domain or
shall be destroyed by fire or unavoidable casualty or by action of any
public or other authority, or shall receive any direct or consequential
damage for which the Lessor and the Lessee, or either of them, shall be
entitled to compensation by reason of anything lawfully done in pursuance
of any public or other authority during this lease or any extension
thereof, then this Lease shall terminate at the election of the Lessor,
which election may be made notwithstanding the Lessor's entire interest may
have been divested; and if the Lessor shall not so elect, then in case of
such taking, destruction or damage rendering the premises unfit for use and
occupation, a just proportion of said rent according to the nature and
extent of the injury shall be abated until the premises, or in case of such
taking what may remain thereof, shall have been put in proper condition for
use and occupation. The Lessor reserves and excepts all rights to damages
to said premises and building and the leasehold hereby created, now accrued
or hereafter accruing by reason of any exercise of the right of eminent
domain, or by reason of anything lawfully done in pursuance of any public
or other authority; and by way of confirmation, the Lessee grants to the
Lessor all the Lessee's rights to such damages and covenants to execute and
deliver such further instruments of assignment thereof as the Lessor may
from time to time request. Lessee hereby constitutes Lessor his lawful
attorney in fact to issue, sign and seal all such documents necessary in
order to bring about assignment of Lessor's rights in case of exercise of
the right of eminent domain.
VIII.PROVIDED ALSO, and this lease is upon this condition, that if the Lessee
shall neglect or fail to perform or observe any of the Lessee's covenants
herein, or if the leasehold hereby created shall be taken on execution, or
by other process of law, or if any assignment shall be made of the Lessee's
property for the benefit of creditors, or if a receiver, guardian,
conservator, trustee in bankruptcy or similar officer shall be appointed to
take charge of all or any part of the Lessee's property by a court of
competent jurisdiction, or if the Lessee commits any act of bankruptcy, or
if a petition is filed by the Lessee under any bankruptcy law, or if a
petition, is filed against the Lessee under any bankruptcy law and the same
shall not be dismissed within thirty (30) days from the date upon which it
is filed, then and in any of said cases, the Lessor lawfully may
immediately or at any time thereafter and without demand or notice enter
upon the premises of any part thereof in the name of the whole and
repossess the same as of the Lessor's former estate and expel the Lessee
and those claiming through or under the Lessee and remove their effects,
forcibly if necessary, without being deemed guilty of any manner of
trespass and without prejudice to any remedies which might otherwise be
used for arrears of rent or preceding breach of covenant, and upon such
entry this lease shall terminate; or, if Lessor so determines, it may cause
such termination by sending notice to Lessee by registered mail, the usual
registry receipt from postal authorities being conclusive evidence of
suitable notice of such termination; and the Lessee covenants that, in case
of such termination or in case of termination under the provisions of
statute by reason of the default of the Lessee, the Lessee will forthwith
pay to the Lessor as damages a sum equal to the amount by which the rent
and other payments called for hereunder for the remainder of the original
term and of any extension thereof exceed the fair rental value of said
premises for the remainder of the original term and of any extension
thereof, and in addition thereto will furthermore indemnify the Lessor
during the remainder of the original term and of any extension thereof
against all loss and damage suffered by reason of such termination however
caused, first deducting any damages paid as above provided, the loss and
damage, if any, for each rent payment period during the remainder of the
original term and of any extension thereof to be paid at the end of each
such rent payment period. In case of default or bankruptcy, as heretofore
stated, the entire balance of all rentals which will become due, pursuant
to and during the term of this lease, shall accrue immediately to Lessor as
liquidated damages, and if there be any other payments due Lessor resulting
from the landlord-tenant relationship, such payments shall also become
immediately due and payable as liquidated damages. No act or thing done by
Lessor or Lessor's agent during the term hereby demised shall constitute an
eviction by Lessor, nor shall such be deemed an acceptance or surrender of
said premises, and no agreements to accept surrender shall be valid unless
in writing signed by Lessor. No employee of Lessor or Lessor's agent shall
have any power to accept the keys of said premises prior to the termination
of the lease. The delivery of keys to any employee of Lessor or of Lessor's
agent shall not operate as a termination of the lease or a surrender of the
premises. It is mutually agreed by and between Lessor and Lessee, that the
respective parties hereto shall and they hereby do waive trial by jury in
any action, proceeding or counterclaim brought by either of the parties
hereto against the other on any matters whatsoever arising out of or in any
connected with this lease, the relationship of Lessor and Lessee, Lessee's
use or occupancy of said premises, and/or any claim or injury or damage,
and any emergency statutory or other statutory remedy.
IX. No consent or waiver, express or implied, by the Lessor, to or of any
breach of any covenant, condition or duty of the Lessee, shall be construed
as a consent or waiver to or of any other breach of the same or any other
covenant, condition or duty. Wherever notice by registered mail is
specified, notices may also be given by a
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41
42
reputable overnight delivery service, such as FEDEX, or by hand delivery,
or by certified mail with return receipt requested. Any notice from the
Lessor to the Lessee or from the Lessee to the Lessor including statutory
14 day notice to vacate shall be deemed duly served if mailed by registered
mail addressed, if to the Lessee, at said premises or, if to the Lessor, at
the place from time to time established for the payment of rent and the
customary registered mail receipt shall be conclusive evidence of such
service and Lessee shall be deemed to have received actual and/or
constructive notice, whichever is required, of the contents of any notice,
including a 14 day notice to vacate for non-payment of rent, and the
customary registered mail receipt issued by the post office shall be
conclusive evidence as to the sending and receipt of such notice. Unless
repugnant to the context, the words "Lessor" and "Lessee" appearing herein
shall be construed to refer to the person or persons, natural or corporate,
named above as Lessor or as Lessee as the case may be, and the heirs,
executors, administrators, successors and assign of such person or persons
and those claiming through or under them or any of them. If the Lessee is
several persons or a firm, the Lessees' covenants are joint or partnership
and also several. No agreement of the Lessor shall be binding upon any
person except for defaults occurring during such person's period of
ownership, nor binding individually upon any fiduciary or the beneficiary
of any trust.
WITNESS the execution hereof in duplicate, under seal, the day and year
first above written.
----------------------------------
----------------------------------
----------------------------------
----------------------------------
See clause X attached hereto and made part of this lease instrument.
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43
RULES AND REGULATIONS
1. The sidewalks, entries, passages, elevators and stairways shall not be
obstructed by any of the tenants, or used by them for any other purpose than for
ingress to and egress from their respective premises; and no office furniture or
other furnishings or equipment shall be moved without prior notice to the
Lessor, and then only during such hours and through such passages, elevators,
and stairways as the Lessor may assign.
2. The floors, skylights and windows that reflect or admit light into the
passageways or into any place in the building shall not be covered or obstructed
by any tenant. The toilets and other plumbing fixtures shall not be used for any
purposes other than those for which they were constructed, and no sweepings,
rubbish, cigarettes, or other substances shall be thrown therein.
3. Tenants, their agents and employees, must not leave the windows of the
leased premises open or uncared for when it rains or snows, or when a storm is
probable.
4. No hole shall be drilled or made in the stone or brick work of the
building; and no nails, staples or screws shall be driven into the plaster,
woodwork, or floors; and no aerials or flagpoles or the like placed on the
outside of said building. No sign, advertisement or notice shall be inscribed,
painted or affixed on any part of the outside or inside of the building, except
of such color, size and style, and in such places upon or in said building as
shall be first designated by the Lessor and endorsed hereon. No awnings or
window-shades shall be placed on or in the building, except such as are uniform
in material and style with those in use or approved by the Lessor. No iron or
steel safes shall be placed in said building except of such weight and in such
positions as the Lessor shall have first approved.
5. No tenant shall do or permit anything to be done in the premises
occupied by him, or bring or keep anything therein which will in any way
increase the rate of fire insurance on the building, or on property kept
therein, or obstruct or interfere with the rights of other tenants, or in any
way injure or annoy them, or conflict with the laws relating to fires or with
the regulations of the Fire Department, or with any insurance policy upon the
building, or any part thereof, or with any of the rules or ordinances of the
City of Boston.
6. Tenants must, upon the termination of their respective leases, leave the
windows in the leased premises in the condition in which they were at the dates
of such leases, and must then restore all keys delivered to them.
7. Tenants, their agents and employees, shall not make nor permit any
improper noises in the building, smoke tobacco in the elevators, or interfere in
any way with other tenants or those having business with them.
8. Nothing shall be thrown out of the windows or down the passages or
skylights of the building nor any sweepings, rubbish, cigarettes or other debris
thrown or left in the passageways, stairways, toilet rooms, entries or
sidewalks, by the tenants, their agents or employees, except in receptacles
placed by the Lessor for the purpose.
9. No animals shall be kept in or about the leased premises.
10. No tenant shall use any other method of heating than that provided for
in the within lease, without special agreement with the Lessor.
11. The Lessor reserves the right to make such other and further rules and
regulations as in the Lessor's judgment may from time to time be needful for the
safety, care and cleanliness of the building, and for the preservation of good
order therein.
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45
Page 1 Attachment to Lease, Clause x.
x.1. In addition to the basic rent payments as aforesaid, Lessee shall pay, if
due, additional rent payments for real estate taxes. If in any period commencing
with July 1, 1999 (Fiscal Year 2000) the real estate taxes on the land and
building of which, the leased premises are a part, are in excess of the amount
of real estate taxes thereon for Fiscal year 1999, hereinafter called the base
year, Lessee will pay to lessor as additional rent hereunder, when and as
designated by notice in writing by Lessor, 2.19% of such excess that may occur
in each year of the term of this Lease and any extensions thereafter, and
proportionately for any part of a fiscal or calendar year. If the Lessor obtains
an abatement of any such excess real estate tax and where the lessee has paid
excess real estate tax share over real estate base year tax under this formula,
Lessor shall refund proportionately to Lessee one-half of such pro-rated excess
abated real estate taxes; this is agreed to for simplicity to allow for Lessor's
or third Party services and/or expenses to obtain any such abatements. The base
year of fiscal year 1999 shall be the net real estate taxes after abatements, if
any. These payments shall be payable as per clauses x.6, x.7, and x.8.
x.2. In lieu of an operating expense and inflation clause and for the period
commencing with April 1, 1998, during the term of the Lease and extensions
thereafter, the National Consumer Price Index "U" Series (hereinafter "CPI")
shall be used. For identification this series was 159.1 for January 1997, (1982
- 1984 = 100 and as this may be adjusted hereafter by the U.S. Government). The
most recent monthly index prior to commencement of the Lease shall be used as
the base period index CPI for all calculation purposes throughout the term of
this lease and extensions. The amount to be paid by Lessee will be the increase
in the future CPI index (numerator) over the base CPI index (denominator),
figured as a percentage, and then multiplied by the then current rent.
As a hypothetical example for clarity: If the lease were to commence on April
1st, 1998, the base CPI would be the March 1998 figure (which should be released
by the US Government in early April 1998). Assume this March 1998 CPI is 162.50.
Further assume that the March 1999 CPI is 165.9. The percentage increase would
be figured as follows: 165.9 (the then current CPI) minus 162.50 (the base) =
3.4 which is the nominal increase in the CPI index. This increase of 3.4 is
divided by the base 162.50 to derive the percentage increase. 3.4/162.50 = an
increase of 2.1%. In this example, there is a 2.1% increase, and assuming an
annual rent of $56,700, the amount due for that 12 month period would be
$1190.70 (the rent times the % increase - $56,700 * 2.1%). These payments shall
be payable as per clauses x.6, x.7, and x.8.
x.3. The applicable Basic Rent is payable in twelve equal monthly installments,
in advance, on the first day of every calendar month, provided that if the Term
begins or ends on a day other than the first or last day of a calendar month,
the installment of Rent payable on the first day of the Term, or the first day
of the last calendar month of the Term shall be prorated for such first or last
partial month on the basis of a 365 day year. Lessee will pay the Basic Rent
without counterclaim, set-off, deduction or demand to Lessor at its address set
forth above, or at such other place as is designated in writing from time to
time by Lessor. Lessor hereby acknowledges receipt of first months rent in the
amount of $4,837.50.
x.4. The security deposit shall be $4,387.50 (the "SECURITY DEPOSIT"), which
shall be paid to Lessor by October 15, 1998. Lessor shall not be obligated to
segregate nor pay interest on said security deposit.
46
Page 2 Attachment to Lease, Clause x.
x.5. As to Clause V. (f): Any profit on an assignment or sublease shall inure
completely to the benefit of the Lessor subject in all cases to the continuing
responsibility of the lessee as above stated, and provided, further, that any
assignee or sublease shall be jointly and severally responsible for all payments
due under Lease, and such that such assignee or sublease shall be credit worthy
and of character and use consistent with the reputation of the building of which
the demised premises are a part, and further that the Lessee shall not be in
default of any covenants or provisions of this lease at the time of any such
assignment or sublease; any sublease shall be rented at market rent and shall
not be made without prior written consent of Lessor.
x.6. Time and period of Billing, whether annual, semi-annual, or otherwise for
real estate and CPI clauses shall be in the discretion of the Lessor, and Lessee
shall be obliged to pay to the Lessor the entire amount billed, for the period
billed. Any amount payable by Lessee for the period during which this Lease
commences and expires shall be apportioned on the basis of the proportion of the
particular year or tax year during which the lease term is in effect. Should the
real estate taxes or the CPI Index figure fall below the base periods there
shall be no credit adjustment to Lessee therefor, so that the basic rent charge
shall be due at all times and there shall be no reduction in the basic fixed
rent therefor.
x.7. Payment on Account: Lessee shall when requested by Lessor, and with each
monthly payment, make such payments in advance as lessor shall reasonably
determine to be sufficient to provide, in the aggregate, a fund adequate to pay,
when due, all additional rent required under the real estate and CPI clauses.
Any such payments on account shall be adjusted to conform to the actual R.E. tax
bills and CPI Index amounts.
x.8. Late Payment: In the event Lessee fails to make any basic rent payment
within five (5) days after the date when due, or fails to make any additional
rent payment for real estate or CPI clauses, or other payment under the lease
within ten (10) days after billing date, then Lessee shall pay to Lessor upon
demand therefor a late charge at the rate of twelve (12) percent per annum from
the due date of such basic rent payment(s) and/or from the billing date of such
other rent payments for real estate, CPI or otherwise, until such amount(s)
is/are paid.
x.9. Lessee warrants and confirms that it has dealt with no broker in connection
with the leasing of the premises and has dealt directly with Xxxx Realty as
Agent of the Lessor.
x. 10. All provisions of paragraph x. shall govern if inconsistent with any
other provision or provisions of this Lease.
x. 11. General Provisions.
(a) The various rights and remedies contained in this Lease and reserved to each
of the parties shall not be exclusive of any other right or remedy of such
party, but shall be construed as cumulative and shall be in addition to every
other remedy now or hereafter existing at law, in equity, or by statute. No
delay or omission or the right to exercise any power by either party shall
impair any such right or power, or shall be construed as a waiver of any default
or as acquiescence in any default. One or more waivers of any covenant, term or
condition of this Lease by either party shall not be construed by the other
party as a waiver of a subsequent breach
47
Page 3 Attachment to Lease, Clause x.
of the same covenants, terms or conditions. Acceptance by Lessor of a lesser sum
than the Rent then due shall be deemed to be an account of the earliest
installment of such Rent, and endorsements or statements on checks or letters
accompanying any check or payment as Rent shall not be deemed as accord and
satisfaction, and Lessor may accept such check or payment without prejudice to
Lessor's right to recover the balance of such installment or pursue any other
remedy provided in this Lease. The consent or approval of either party to or of
any act by the other party of a nature requiring consent or approval shall not
be deemed to waive or render unnecessary consent to or approval of any
subsequent similar act.
(b) A waiver by Lessor of any clause or portion of this Lease must be in writing
to be deemed valid and to bind the Lessor for any such specific written waiver,
the same shall not be deemed to operate as a waiver thereafter for any purpose.
(c) All amounts payable by Lessee to Lessor under any provision of this Lease,
other than those of basic rent per clause pursuant to SECTION 4, shall be deemed
to be additional rent for the use of the Premises, and Lessor shall have the
same remedies for the nonpayment of such amounts as for the nonpayment of other
rents.
(d) Where the words "LESSOR" and "LESSEE" are used in this Lease they shall
include Lessor and Lessee and shall apply to persons, both men and women,
associations, partnerships and corporations, and in reading this Lease the
necessary grammatical changes required to make the provisions hereof mean and
apply to them shall be made in the same if written into the Lease.
(e) The invalidity of one or more of the provisions of this Lease shall not
affect the remaining portions of this Lease, and, if any one or more of the
provisions of this Lease should be declared invalid by final order, decree or
judgment of a court of competent of a court of competent jurisdiction, this
Lease shall be construed as if such invalid provision had not been included in
this Lease.
48
IN WITNESS WHEREOF, the parties hereto have executed this Lease in duplicate,
the original as a sealed instrument on the day and year first above written,
LESSOR:
RETALS, Ltd.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Retals, Inc., General Partner
Xxxxxxx X. Xxxxxx, Vice President
LESSEE:
Student Advantage, LLC
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
49
LEASE AMENDMENT
THIS AGREEMENT, made this 17 day of February, 1999, by and between Retals Trust
(successor to Retals Ltd.) (the "LESSOR") and Student Advantage, Inc. (successor
to Student Advantage, LLC) as Lessees (the "LESSEE").
WITNESSETH THAT:
WHEREAS, Lessor has heretofore leased to Lessee and Lessee has hired from Lessor
a portion of the building located at 000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx,
consisting of the Mezzanine and Lobby levels of the Building, all as more
particularly described and set forth in certain lease instruments identified as
following:
Original Lease dated February, 1998 with a term ending 2003 for the Mezzanine
space and 2005 for the Lobby level space ("ORIGINAL LEASE"),
WHEREAS, the parties wish to add space to the Original Lease, subject to the
terms and conditions hereof, the following additional premises:
The Additional Premises being Leased under this Lease Amendment shall be the
space located on the fourth floor, being 5,410 RSF, which is an agreed figure
for all purposes, which space is currently occupied by Coneco Corporation and
bordering Summer Street and abutting 000 Xxxxxx Xxxxxx and the atrium at the
rear of 000 Xxxxxx Xxxxxx, (xxx "ADDITIONAL PREMISES").
NOW, THEREFORE, for good and valuable consideration by each party paid to the
other, the receipt and sufficiency of which is hereby acknowledged, and in
further consideration of the foregoing premises and the mutual obligations set
forth herein, the parties hereby agree as follows:
1. All terms used in this agreement shall have the same meaning as in the
Original Lease, unless otherwise specifically provided herein. For ease of
clarity in this instrument and for identification of the Original Lease
instrument currently in force between the parties, and of the spaces covered
thereunder, and the Additional Premises to be rented hereunder, the following
Terms and definitions section is included in and made part of this agreement:
1.1 BUILDING. Whenever "BUILDING" is used in this instrument it shall refer to
the building known as 000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx.
1.2 ORIGINAL LEASE. A certain lease by and between Retals Trust ("LESSOR") and
Student Advantage, LLC ("LESSEE"), dated February, 1998 with a term ending 2003
for the Mezzanine space and 2005 for the Lobby level space at 000 Xxxxxx Xxxxxx,
Xxxxxx, XX; whenever used in this instrument shall refer to said Original Lease
instrument.
1.3 ORIGINAL PREMISES. Whenever "ORIGINAL PREMISES" is used it shall refer to
the
50
premises which were leased under the Original Lease (consisting of portions
of the Mezzanine and Lobby levels of the Building).
1.4 ADDITIONAL PREMISES. Whenever "ADDITIONAL PREMISES" are used in this
instrument it shall refer to the 5,410 RSF on the 4th floor of the Building
which is designated in Exhibit A attached hereto, and is currently occupied by
Coneco, Inc., as also described above.
1.5 LEASE AMENDMENT. This lease amendment dated February __, 1999, for the
Additional Premises being hereby leased, shall be called "LEASE AMENDMENT" and
wherever used in this lease. shall refer to this amendment for the Additional
Premises.
1.6 PREMISES. The Original Premises and the Additional Premises together shall
be deemed to be the Premises as defined in the Original Lease as hereby amended
(the "AMENDED PREMISES").
2. Except as specifically set forth in this Lease Amendment of Original Lease,
nothing herein is intended or should be construed to modify, amend delete, or
otherwise affect the terms of said Original Lease, which shall remain in full
force and effect as amended hereby. The terms of the Original Lease instrument
are incorporated herein by reference and made part of this instrument.
3.1 The term for the Lessee's use of Additional Premises shall be 4 years 5
months, beginning March 1, 1999 and terminating July 31, 2003, unless sooner
terminated by the terms of the Original Lease, as amended and or extended.
3.2 The Termination Dates for the Original Premises leased under Original Lease
are hereby amended as follows:
Termination date for the Mezzanine ("A + B") space is hereby changed to July 31,
2003. Termination date for the Lobby ("C") space is hereby changed to July 31,
2005.
These Termination dates are intended to supercede the Termination Dates
contained in the Original Lease.
4. RENT; SECURITY DEPOSIT.
Basic Rent shall be payable monthly in advance as follows:
For the Additional Premises Basic Rent shall be one hundred thirteen thousand
six hundred ten ($113,610) dollars per annum, from March 1, 1999 (or from date
of occupancy if later, see Section 9) through July 31, 2003.
Basic Rent for the Mezzanine Space "A" and "B" shall be $139,162 per year (which
amount is currently payable under Original Lease) payable through July 31, 2003;
Basic Rent for the Lobby Level, space "C", (which amount is currently payable
under Original
51
Lease), shall be $298,563 per annum payable through May 31, 2003;
Basic Rent for the Lobby Level space "C" shall be $337,506 per annum from June
1, 2003 through July 31, 2005.
For clarity the Basic Rent schedule for the Amended Premises* are as follows:
LOCATION $ PER RSF #RSF $ PER YEAR $ PER MONTH
-------- --------- ---- ---------- -----------
3/1/99 Lobby "C" $23.00 12,981 $298,563
to Mezz "A&B" $17.00 8,186 $139,162
5/31/03 Additional
Premises $21.00 5,410 $113,610
-------- -----------
(0xx Xxxxx) $551,335** $45,944.58
LOCATION $ PER RSF # RSF $ PER YEAR $ PER MONTH
-------- --------- ----- ---------- -----------
6/1/03 Lobby "C" $26.00 12,981 $337,506
to Mezz "A & B" $17.00 8,186 $139,162
7/31/03 Additional
Premises $21.00 5,410 $113,610
-------- -----------
(0xx Xxxxx) $590,278** $49,189.83
8/1/2003***
to
7/31/05 Lobby "C" $26.00 12,981 $337,506 $28,125.50
* This excludes other space (2,700 RSF) on the 4th floor being rented under a
separate Lease dated September, 1998 and expiring September 30, 2000.
** This is an annualized figure (there may be different start dates for the
component spaces).
*** BASIC RENT IN OPTION YEARS: If Lessee exercises its option to extend for
the Mezzanine "A & B" space, then Basic Rent for that space from August 1,
2003 through July 31, 2005 shall be $139,162 per annum; if Lessee exercises
its option to extend for the Additional Premises, then the Basic Rent for
that space shall be the then fair market rent (as determined in Section 38
of Original Lease) from August 1, 2003 through July 31, 2005. Either or
both amounts, shall be in addition to the Basic Rent of $337,506 due for
the Lobby Space from August 1, 2003 through July 31, 2005
The applicable Basic Rent is payable in twelve equal monthly installments, in
advance, on the first day of every calendar month, provided that if the Term
begins or ends on a day other than the first or last day of a calendar month,
the installment of Basic Rent payable on the first day of the Term, or the first
day of the last calendar month of the Term shall be prorated for such first or
last partial month on the basis of a 365 day year. Lessee will pay all rent
(Basic Rent and Additional Rent) without set-off, deduction or demand to
Landlord at its address set forth above or below, or at such other place as is
designated in writing from time to time by Lessor.
SECURITY DEPOSIT. The Security Deposit shall be increased by nine thousand four
hundred sixty seven and 1/2 ($9,467.50) dollars which is the equivalent of one
month's Basic Rent for the
52
Additional Premises. The total Security Deposit then
shall be $45,944.58 ($36,477.08 for the Original Premises + $9,467.50 for the
Additional Premises = $45,944.58 new total Security Deposit.) The additional
Security Deposit of $9,467.50 shall be paid prior to March 1, 1999.
5. CPI/RE CONTRIBUTIONS. The Additional Premises shall be subject to CPI, Real
Estate, and Electricity contributions in the same manner, and using the same
formulas and bases as the Original Premises. The CPI contribution, as described
in the Original Lease, shall be applied to the Additional Premises leased
hereunder. The Additional Premises leased hereunder shall add to the percentage
allocated for purposes of real estate contribution share, so that Lessee's total
real estate percentage for the Premises shall be 21%.
6. IMPROVEMENTS. Additional Premises are being taken by Lessee "as is". This is
reflected in the rental rate.
7. Except as modified by this Lease Amendment the Original Lease, is hereby
ratified and confirmed. Unless the context requires otherwise, all terms used
herein shall be construed in conformity with the applicable provisions of the
Original Lease.
8. OPTION TO EXTEND.
8.1 The Option to Extend the Mezzanine level ("A + B") is hereby amended so that
the extension period of two years, shall commence on August 1, 2003, and expire
on July 31, 2005. All other terms of extension including, but not limited to,
rent and notification, shall remain the same as per Section 38.1 of the Original
Lease. Section 38, except as amended herein, is hereby ratified and confirmed.
8.2 Lessee shall also have an option to extend the term for the Additional
Premises for 2 years, commencing on August 1, 2003 and expiring on July 31,
2005. The terms of this option to extend the term of the Additional Premises
shall be the same as in the Original Lease (including notification to Lessor by
Lessee). Section 38 is hereby incorporated by reference, except that the Basic
Rent shall be the then fair market rent (as determined in said Section 38 of
Original Lease).
9. In the event that the Additional Premises are not delivered to Lessee on
March 1, 1999 all rent for the Additional Premises (Basic Rent and Additional
Rent) shall xxxxx as per Section 4 above for each day that Lessor has not
delivered the Additional Premises to Lessee. In the event that the Additional
Premises has not been delivered to Lessee by March 31, 1999, Lessee shall then
have the right to Terminate this Lease Amendment, by written notice to Lessor,
subject to Lessor's right to cure the delivery within 15 days. Said notice must
be received by Lessor on April 1, 1999.
10. Lessor and Lessee each represent that it has not dealt with a broker in
connection with this Lease Amendment. Each party agrees to indemnify and hold
the other harmless against any and all liability incurred by the other party
resulting from claims made by any broker, finder or similar agent claiming to
have dealt with the representing party.
11. Section 23 of Original Lease is hereby amended so that as a condition of
sublease or
53
assignment Lessor may require, in its sole discretion, that market rent be
obtained for any proposed sublease or assignment.
12. In all other respects the Original Lease is hereby ratified and confirmed,
except as hereby amended.
13. This Lease Amendment is subject to and conditioned upon the execution and
delivery of Agreement for Early Termination of Lease dated February 8, 1999 by
and between Retals Trust (successor to Retals Ltd.) and Coneco, Inc. Lessor
shall have no liability for the failure of Coneco Inc. to execute and deliver
said agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Lease in duplicate,
the original as a sealed instrument on the day and year first above written.
LESSOR: LESSEE:
Retals Trust Student Advantage, Inc.
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxxxxxx X. Xxxxxxx
-------------------------------- ----------------------------
Xxxxx X. Xxxxxx, Trustee of Retals Trust Print: Xxxxxxxxxxx X. Xxxxxxx
duly authorized, and not individually. Title: V.P. Finance & Admin.
54
55
STUDENT ADVANTAGE, INC.
Consent of Directors in Lieu of Meeting
As of February ___, 1999
The undersigned, being all of the directors of Student Advantage, Inc. (the
"Company"), hereby consent to the adoption of the following votes and agree that
said votes shall have the same effect as if duly adopted at a meeting of the
Board of Managers held for that purpose:
VOTED: That the Board consent to the execution of a lease amendment of
approximately 5,410 rentable square feet in a building located at
000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx in a building owned by
Retals Trust;
VOTED: That the President, Vice-President, Treasurer, Managing Member and Clerk
are, and each of them acting singly is, authorized in the name and on
behalf of the Company to execute and deliver the Lease, a Notice of Lease
and such other certificates, instruments, and documents which such
officer deems necessary or desirable to effectuate the transactions
described herein.
EXECUTED as of the date set forth above,
-------------------------------
-------------------------------
-------------------------------
(This area left intentionally blank)
56
EXHIBIT A
[graphic describing leased space appears here]
57
EXHIBIT B
Resolutions Adopted by Consent Vote as of February ___, 1999
VOTED: That the Board of Directors consent to the execution of a lease
amendment of approximately 5,410 rentable square feet in a building
located at 000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx in a building
owned by Retals Trust;
VOTED: That the President, Vice-President, Treasurer and Clerk are, and
each of them acting singly is, authorized in the name and on behalf
of the Company to execute and deliver the Lease, a Notice of Lease
and such other certificates, instruments, and documents which such
officer deems necessary or desirable to effectuate the transactions
described herein.
(This area left intentionally blank)
58
CLERK'S CERTIFICATE
I, _____________________________ the duly elected and acting clerk of Student
Advantage, Inc. (the "Company") hereby certify as follows:
1. I am the duly elected and authorized clerk of the Company.
2. Attached hereto as EXHIBIT C is a true and correct copy of certain
resolutions which were adopted by unanimous consent of the Board of
Directors of the Company as of February ___, 1999.
3. ___________________________ is a Vice President and Treasurer of the
Company.
EXECUTED as of this ___ day of February, 1999.
____________________________, Clerk
COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss February ___, 1999
Then personally appeared the above-named ____________________ the clerk of
Student Advantage, Inc. and acknowledged the foregoing instrument as his free
act and deed and the free act and deed of the Company, before me
------------------------------------
Notary Public
My Commission expires:
