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EXHIBIT 10.17
STANDARD FORM COMMERCIAL LEASE
THIS INSTRUMENT IS A LEASE, dated as of November 15, 1997, in which the
LESSOR and LESSEE are the parties hereinafter named, and which relates to space
in the building (the "Building") located at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇. The parties to this instrument hereby agree with each other as
follows:
1. BASIC LEASE PROVISIONS: The following set forth basic data and,
where appropriate, constitute definitions of the terms hereinafter listed.
A. BASIC DATA.
LESSOR: Lincoln Plaza Limited Partnership, a
Massachusetts limited partnership
LESSOR'S Address: c/o Capital Properties, Inc., ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
LESSEE: Exchange Applications, Inc., a Delaware
corporation
LESSEE'S Original Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
LESSEE'S Notice Address / Prior to Commencement Date
(Section 20): Mr. ▇▇▇▇ ▇'▇▇▇▇▇, VP/CFO, Exchange Applications,
Inc., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
LESSEE'S Notice Address / After Commencement Date
(Section 20): Mr. ▇▇▇▇ ▇'▇▇▇▇▇, VP/CFO, Exchange Applications,
Inc., at the Premises
With a copy to ▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq., ▇▇▇▇▇▇▇, ▇▇▇▇ &
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Basic Rent: The sum of $1,080,000 ($27 per square
foot Of Premises Rentable Area) per annum as the same may be
adjusted and/or abated.
Premises Rentable Area: Agreed to be 40,000 square
feet located on the seventh and eighth floor of the Building.
Permitted Uses: General business office use.
Escalation Factor: 17.32%, as computed in accordance
with the Escalation Factor Computation.
Construction Completion Date:
Approximately June 1, 1998.
Initial Term: Five years commencing on the
Commencement Date and expiring at the close of the day
immediately preceding the fifth anniversary of the
Commencement
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Date, except that if the Commencement Date shall
be other than the first day of a calendar month, the
expiration of the Initial Term shall be at the close of the
day on the last day of the calendar month on which such
anniversary shall fall.
Lease Security:
Thirty days prior to the commencement of LESSEE shall provide LESSOR with a Letter
construction (approximately) January 1, 1998 of Credit in the amount of $600,000.
At the second anniversary of the The Letter of Credit may reduce to
Commencement Date $480,000 so long as there has been no
default from the Commencement Date through
this reduction date.
At the third anniversary of the The Letter of Credit may reduce to
Commencement Date $360,000 so long as there has been no
default from the Commencement Date through
his reduction date.
At the fourth anniversary of the The Letter of Credit may reduce to
Commencement Date $240,000 so long as there has been no
default from the Commencement Date through
this reduction date.
Base Operating Expenses: The actual Operating
Expenses for the calendar year commencing January 1, 1998 and
ending December 31, 1998.
Base Taxes: The actual Taxes for the Tax Year
commencing July 1, 1997 and ending June 1, 1998.
Broker: CB/Whittier Partners
B. ADDITIONAL DEFINITIONS.
Agent: Capital Properties, Inc., ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Business Days: All days except Saturday, Sunday, New
Year's Day, President's Day, Patriot's Day, Memorial Day,
Independence Day, Labor Day, Columbus Day, Veterans' Day,
Thanksgiving Day, Christmas Day (and the following Monday when
any such day occurs on Sunday). Unless specifically referred
to herein as Business Days, all references in this Lease to
"days" shall mean calendar days.
Commencement Date: June 1, 1998 or upon substantial
completion of LESSOR'S Work, whichever is later.
Escalation Factor Computation: Premises Rentable Area
divided by 100% of building rentable area. (the total building
rentable area is 231,000 square feet.)
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Initial Public Liability Insurance: $1,000,000.00 per
occurrence (combined single limit) for property damage,
personal injury or death.
LESSOR'S Work: As defined in Section 26.
LESSOR'S Plans: As defined in Section 26.Premises: A
portion of the Building as shown on Exhibit A attached hereto.
Extended Term: As defined in Section 34.
First Offered Space: As defined in Section 35.
2. PREMISES. A portion of the building owned by LESSOR consisting of
approximately 40,000 SQUARE FEET OF RENTABLE AREA ON THE SEVENTH AND EIGHTH
FLOORS OF THE BUILDING AND SUBSTANTIALLY KNOWN AS SUITES 701 & 801 on the plan
attached hereto as "Exhibit A" (the "Premises") together with the right to use
in common, with others entitled thereto, the hallways, stairways, and elevators,
necessary for access to said Premises. and lavatories nearest thereto.
3. TERM. The term of this lease shall be for five years commencing on
the Commencement Date and ending sixty months later.
4. BASIC RENT. The LESSEE shall pay to the LESSOR rent at the rate of
$1,080,000 per year, payable in advance on the first day of each month
commencing without deduction or set off in sixty monthly installments of
$90,000.
5. SECURITY DEPOSIT. Upon the execution of this lease, the LESSEE shall
provide LESSOR with a Letter of Credit in accordance with Section I of this
Lease. The Letter of Credit shall be held as security for the LESSEE'S
performance as herein provided and may be drawn in the event that LESSEE is in
default of this Lease.
6. ADDITIONAL RENT.
A. TAX. If, in any tax year, the real estate taxes on the land
and buildings, of which the Premises are a part, are in excess of the
amount of the Base Taxes, as finally abated (hereinafter called the
"Base Year"), LESSEE will pay to LESSOR, as additional rent hereunder,
when and as designated by notice in writing by LESSOR, the amount of
the excess multiplied by the Escalation Factor. If the LESSOR obtains
an abatement of any such excess real estate tax, a proportionate share
of such abatement, less the reasonable fees and costs incurred in
obtaining the same, if any, shall be refunded to the LESSEE.
B. OPERATING. If, in any calendar year, the Operating Expenses
for the Property of which the Premises are a part, are in excess of the
amount of the Base Operating Expenses, LESSEE will pay to LESSOR, as
additional rent hereunder, when and as designated by notice in writing
by LESSOR, the amount of the excess multiplied by the Escalation
Factor. Operating expenses are defined for the purposes of this
agreement as: The aggregate costs or expenses reasonably incurred by
LESSOR with respect to the operation, administration, cleaning, repair,
maintenance and management of the premises including, without
limitation, those items enumerated in "Exhibit C" attached hereto. Any
such accounting by LESSOR shall be binding and conclusive upon LESSEE
unless within thirty (30) days after that giving by LESSOR of such
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accounting, LESSEE shall notify LESSOR that LESSEE disputes the
correctness of such accounting, specifying the particular respects in
which the accounting is claimed to be incorrect.
7. UTILITIES. The LESSEE shall pay, as they become due, all bills for
electricity and other utilities that are furnished to the Premises and presently
separately metered or check metered by LESSOR. The LESSOR agrees to provide all
other utility service and to furnish reasonably hot and cold water and
reasonable heat and air conditioning to the Premises, the hallways, stairways,
elevators, and lavatories during normal building business hours (8:00 A.M. -
6:00 P.M. on weekdays and 8:00 A.M - 12:00 NOON on Saturdays) on regular
Business Days as outlined in Section I above of the heating and air conditioning
seasons of each year, to furnish elevator service and to light passageways and
stairways and to furnish such cleaning service as is customary in similar
buildings in said city or town, all subject to interruption due to any accident,
to the making of repairs, alterations, or improvements, to labor difficulties,
to inability to obtain 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. LESSOR reserves the right to charge for after hours HVAC
so long as this charge shall apply uniformly to the majority of tenants in the
building.
LESSOR shall have no obligation to provide utilities or equipment other than the
utilities and equipment within the premises as of the commencement date of this
lease. In the event LESSEE requires additional utilities or equipment, the
installation and maintenance thereof shall be the LESSEE'S sole obligation,
provided that such installation shall be subject to the written consent of the
LESSOR.
8. USE OF LEASED PREMISES. The LESSEE agrees to use the Premises in a
manner consistent with the nature of the building and consistent with the other
LESSEES in the building. The LESSEE shall use the Premises only for the purpose
of listed in Section I of this Lease. LESSEE shall have access to the Premises
twenty four hours a day, seven days a week, fifty-two weeks per year.
9. COMPLIANCE WITH THE LAWS. The LESSEE acknowledges that no trade or
occupation shall be conducted in the Premises or use made thereof which will be
unlawful, improper, noisy or offensive, or contrary to any law or any municipal
by-law or ordinance in force in the city or town in which the Premises are
situated. LESSEE agrees to comply with all such laws. LESSOR makes no
representation that uses contemplated by the LESSEE are permitted by law.
10. FIRE INSURANCE. The LESSEE shall not permit any use of the Premises
which will make voidable any insurance on the property of which the Premises are
a part, or on the contents of said property or which shall be contrary to any
law or regulation from time to time established by the New England Fire
Insurance Rating Association, or any similar body, succeeding to its powers. The
LESSEE shall not use the Premises in any way which will cause an extra insurance
premium. However, in the event that LESSEE does so, the LESSEE shall, on demand,
reimburse the LESSOR, and all other lessees, all extra insurance premiums caused
by the LESSEE'S use of the Premises.
11. MAINTENANCE OBLIGATIONS. The LESSEE agrees to maintain the
Premises, in good condition, damage by fire and other casualty only excepted,
and whenever necessary, to replace plate glass and other glass therein.
A. LESSEE'S OBLIGATIONS. The Premises are now in good order
and the glass whole. The LESSEE shall not permit the Premises to be
overloaded, damaged, stripped, or defaced, nor suffer any waste. LESSEE
shall obtain written consent of LESSOR before erecting any sign on the
Premises. The LESSEE shall keep and maintain the Premises in good order
and repair at its own expense. The LESSOR shall at LESSEE'S expense and
upon LESSEE'S request,
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furnish and install all replacement lamps, lighting tubes, bulbs and
ballast's which may be required in the Premises during the terms hereof
▇. ▇▇▇▇▇▇'▇ OBLIGATIONS. The LESSOR agrees to maintain the
structure of the building of which the Premises are a part in the same
condition as it is at the commencement of the Term or as it may be put
in during the Term of this Lease, reasonable wear and ▇▇▇▇, damage by
fire and other casualty only excepted, unless such maintenance is
required because of the LESSEE or those for whose conduct the LESSEE is
legally responsible.
LESSOR shall never be liable for any failure to make repairs unless
LESSEE has given notice to LESSOR of the need to make such repairs and
LESSOR has failed to commence to make such repairs within a reasonable
time after receipt of such notice, or fails to proceed with reasonable
diligence to complete such repairs.
12. ADDITIONS & ALTERATIONS. The LESSEE shall not make structural
alterations or additions to the Premises or that will affect the building's
systems, but may make non-structural alterations provided the LESSOR consents
thereto in writing, which consent shall not be unreasonably withheld or delayed.
Minor Alterations which costs LESSEE less than $1,000 may be made without
LESSOR'S prior written consent. All such allowed alterations shall be at
LESSEE'S expense and shall be in quality at least equal to the present
construction. LESSEE shall not permit any mechanics' liens, or similar liens, to
remain upon the Premises for labor and material furnished to LESSEE or claimed
to have been furnished to LESSEE in connection with work of any character
performed or claimed to have been performed at the direction of LESSEE and shall
cause any such lien to be released of record forthwith without cost to LESSOR.
Any alterations or improvements made by the LESSEE shall become the property of
the LESSOR at the termination of occupancy as provided herein.
13. ASSIGNMENT & SUBLEASING.
A. Short Term - Sublease(s) of up to 10,000 square feet for
the first two years of the term. The LESSEE shall not assign or sublet
the whole or any part of the Premises without LESSOR'S prior written
consent, which consent shall not be unreasonably withheld or delayed.
Notwithstanding such consent, LESSEE shall remain liable to LESSOR for
the payment of all rent and for the full performance of the covenants
and conditions of this lease. If SUBLESSEE is paying rent at an amount
greater than outlined in Section 4 of this agreement, the amount over
less LESSEE'S subleasing expenses which shall include tenant
improvement costs, legal fees and brokerage fees shall be due to
LESSOR. LESSOR'S permission shall also be necessary for any subdivision
of the Premises.
B. Long Term - Sublease(s) which begin or extend past the
second anniversary of the Commencement Date or for space in excess of
10,000 square feet for any portion of the Term. The LESSEE shall not
assign or sublet the whole or any part of the Premises without LESSOR'S
prior written consent, such consent shall not be withheld or delayed.
Notwithstanding such consent, LESSEE shall remain liable to LESSOR for
the payment of all rent and for the full performance of the covenants
and conditions of this lease. If SUBLESSEE is paying rent at an amount
greater than outlined in Section 4 of this agreement, the amount over
less LESSEE'S subleasing expenses which shall include tenant
improvement costs, legal fees and brokerage fees shall be due to
LESSOR. LESSEE shall not sublease to a current or prospective tenant of
the Building. Prospective tenants are those tenants who have been
introduced to the Property within thirty (30) days of the sublease
proposal or any tenant in negotiation with LESSOR. LESSEE shall not
sublease below Fair Market Value, without LESSOR'S prior written
consent.
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Fair Market Value shall take the length of the proposed term into
consideration. LESSOR shall designate Fair Market Value, (the "Fair
Market Value") by written notice to LESSEE within five (5) days of
receipt of notice of intent to sublease from LESSEE. If LESSEE
disagrees with such designation, (the "Designation"), LESSEE shall by
written notice, advise LESSOR of such disagreement; otherwise LESSEE
shall conclusively be deemed to have agreed to such Designation.
In the event that the Parties are unable to agree, each Party shall
appoint appraiser. Each appraiser so appointed shall be instructed to
determine independently the Fair Market Value and then confer. If the
two appraisers are unable to determine a Designation acceptable to both
parties, they shall appoint a third appraiser. The Designation of this
appraiser shall be considered final.
LESSOR may also elect to recapture the proposed sublease premises.
14. SUBORDINATION. This Lease shall be subject and subordinate to any
and all mortgages, deeds of trust and other instruments in the nature of a
mortgage, now or at any time hereafter, a lien or liens on the property of which
the Premises are a part and the LESSEE shall, when requested, promptly execute
and deliver written instruments as shall be necessary to show the subordination
of this lease to said mortgages, deeds of trust or other such instruments in the
nature of a mortgage. At LESSEE'S request and at LESSEE'S expense, LESSOR shall
use good efforts to secure a so-called subordination and non-disturb agreement
from LESSOR'S lender. In the event that LESSEE fails or refuses to execute same,
LESSOR MAY DO SO AS LESSEE'S Attorney-in-Fact.
15. LESSOR'S ACCESS. The LESSOR or agents of the LESSOR may, at
reasonable times and with reasonable notice, enter to view the Premises and may
remove placards and signs not approved and affixed as herein provided, and make
repairs and alterations as LESSOR should elect to do and may show the Premises
to others, and at any time within six (6) months before the expiration of the
term.
16. INDEMNIFICATION AND LIABILITY. LESSEE shall save LESSOR harmless,
and shall exonerate and indemnify LESSOR, from and against any and all claims,
liabilities or penalties or 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 or emanating from the
Premises on account of or based upon the
act, omission, fault, negligence or
misconduct of any person except LESSOR;
(ii) on account of or based upon any injury to
person, or loss of or damage to property,
sustained on or occurring elsewhere (other
than on the Premises) in or about the
Property (and, in particular, without
limitation, the elevators, stairways, public
corridors, sidewalks, parking areas,
concourses, arcades, approaches, areaways,
roof, or other appurtenances and facilities
used in connection with the Property or the
Premises) arising out of the use or
occupancy of the Property or Premises by the
LESSEE or by any person claiming by, through
or under LESSEE, except where such injury,
loss or damage was caused by the negligence,
fault or misconduct of the LESSOR;
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and in addition to and not in limitation of
either of the foregoing subdivisions (i) and
(ii);
(iii) on account of or based upon (including
moneys due on account of) any work or thing
whatsoever done (other than by LESSOR or its
contractors, or agents or employees or
either) on the Leased Premises; and, in
respect of any of the foregoing, from and
against all costs, expenses (including
reasonable attorneys' fees), and liabilities
incurred in or in connection with any such
claim, or any action or proceeding brought
thereon; and in case any action or
proceeding be brought against LESSOR by
reason of any such claim. LESSEE upon notice
from LESSOR shall at LESSEE'S expense resist
or defend such action or proceeding and
employ counsel therefore reasonably
satisfactory to LESSOR, it being agreed that
such counsel as may act for insurance
underwriters of LESSEE engaged in such
defense shall be deemed satisfactory.
17. LESSEE'S LIABILITY INSURANCE. The LESSEE shall maintain with
respect to the Premises and the property of which the Premises are a part
commercial general liability insurance in the amount of $1,000,000 with property
damage insurance in limits of $100,000 in responsible companies qualified to do
business in Massachusetts and in good standing therein insuring the LESSOR as
well as LESSEE against injury to persons or damage to property as provided.
LESSEE agrees to increase limits as LESSOR'S mortgagee reasonably requires. The
LESSEE shall deposit with the LESSOR certificates for such insurance at or prior
to the commencement of the Term, and thereafter within thirty (30) days prior to
the expiration of any such policies. All such insurance certificates shall
provide that such policies shall not be canceled without at least ten (10) days
prior written notice to each assured named therein.
18. FIRE, CASUALTY, EMINENT DOMAIN. Should a substantial portion of the
Premises, or of the property of which they are a part, be substantially damaged
by fire or other casualty, or be taken by eminent domain, the LESSOR may elect
to terminate this lease. When such fire, casualty, or taking renders the
Premises substantially unsuitable for their intended use, a just and
proportionate abatement of rent shall be made, and the LESSEE may elect to
terminate this lease if:
(a) The LESSOR fails to give written notice within thirty (30)
days of the event of its intention to restore Premises, or
(b) The LESSOR fails to restore the Premises to a condition
substantially suitable for their intended use within ninety (90) days
of said fire, casualty or taking, as such date may be extended ninety
(90) days if LESSOR is diligently working to restore the Premises and
extended an additional ninety (90) days for force majeure. LESSOR
reserves, and the LESSEE grants the LESSOR, all rights which the LESSEE
may have for damages or injury to the Premises for any taking by
eminent domain, except for damage to the LESSEE'S fixtures, property,
or equipment.
19. DEFAULT AND BANKRUPTCY. In the event that:
(a) The LESSEE shall default in the payment of any installment
of rent or other sum herein specified and such default shall continue
for five (5) days after written notice thereof; or
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(b) The LESSEE shall default in the observance or performance
of any other of the LESSEE'S covenants, agreements, or obligations
hereunder and such default shall not be corrected within fifteen (15)
days after written notice thereof; or
(c) The LESSEE shall file or be filed against in any
bankruptcy, insolvency or reorganization petition; or
(d) The LESSEE shall be declared bankrupt or insolvent
according to law, or, if any assignment shall be made of LESSEE'S
property for the benefit of creditors, or
(e) Any attachment is made of the leasehold interest outlined
in this lease; or
(f) The LESSEE shall abandon the premises; or
(g) A receiver is appointed to conduct LESSEE'S business
(whether or not LESSOR has re-entered the premises) then the LESSOR
shall have the right thereafter, while such default continues, to
re-enter and take complete possession of the Premises, to terminate
this lease, and remove the LESSEE'S effects without prejudice to any
remedies which might be otherwise used for arrears of rent or other
default. The LESSEE shall indemnify the LESSOR against all loss of rent
and additional rent and other payments which the LESSOR may incur by
reason of such termination during the residue of the term. If the
LESSEE shall default, after reasonable notice thereof; in the
observance or performance of any conditions or covenants on LESSEE'S
part to be observed or performed under or by virtue of any of the
provisions in any article of this lease, the LESSOR, 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 the
LESSEE. If the LESSOR makes any expenditures or incurs any obligations
for the payment of money in connection therewith, including but not
limited to, reasonable attorney's fees in instituting, prosecuting or
defending any action or proceeding, such sums paid or obligations
insured, with interest at the rate of 18 per cent per annum. and costs,
shall be paid to the LESSOR by the LESSEE as additional rent. Any sums
not paid when due shall bear interest at 18 per cent per annum until
paid. LESSEE shall pay an administrative fee if a check does not clear.
20. NOTICE. Any Notice from the LESSOR to the LESSEE relating to the
Premises or to the occupancy thereof, shall be in writing and be deemed duly
served, if mailed to the Notice Address in Section I of this Lease, registered
or certified mail, return receipt requested, postage prepaid or by overnight
carrier, addressed to the LESSEE. Any Notice from the LESSEE to the LESSOR
relating to the Premises or to the occupancy thereof, shall be deemed duly
served, if mailed to the LESSOR by registered or certified mail, return receipt
requested, postage prepaid or by overnight carrier, addressed to the LESSOR at
the address in Section 1 of this Lease or such other address as the LESSOR may
from time to time advise in writing. All rent notices shall be paid and sent to
the LESSOR at its notice address or such other address as may be designated by
LESSOR.
21. SURRENDER. The LESSEE shall at the expiration or other termination
of this Lease remove all LESSEE'S goods and effects from the Premises,
(including, without hereby limiting the generality of the foregoing, all signs
and lettering affixed or painted by the LESSEE, either inside or outside the
Premises). LESSEE shall deliver to the LESSOR the Premises and all keys, locks
thereto, and other fixtures connected therewith and all alterations and
additions made to or upon the Premises, in good condition, damage by fire or
other casualty only excepted. In the event of the LESSEE'S failure to remove any
of LESSEE'S property from the Premises, LESSOR is hereby authorized, without
liability to LESSEE for loss or damage thereto, and at the sole risk of LESSEE,
to remove and store any of the
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property at LESSEE'S expense, or to retain same under LESSOR'S control or to
sell at public or private sale, without notice any or all of the property not so
removed and to apply the net proceeds of such sale to the payment of any sum due
hereunder, or to destroy such property. The LESSEE shall restore all damage to
the Premises which may have occurred during the use of Premises or while
vacating the Premises. Any items which the LESSEE installs, which replace items
on the Premises when LESSEE took occupancy are deemed to be LESSOR'S property.
22. BROKERAGE. LESSEE warrants and represents that LESSEE has dealt
with no broker other than the broker listed in Section I of this lease in
connection with the consummation of this Lease and, in the event of any
brokerage claims against LESSOR predicated upon prior dealings with LESSEE,
LESSEE agrees to defend the same and indemnify LESSOR against any such claim.
23. LESSOR'S LIABILITY. The LESSOR is not personally liable under this
Lease. (a) LESSEE specifically agrees to look solely to the LESSORS then equity
in the property of which the Premises are a part for recovery of any judgment
from LESSOR it being specifically agreed that LESSOR (original or successor)
shall never be personally liable for any such judgment or for the payment of any
monetary obligation to LESSEE. The provisions contained in the foregoing
sentence are not intended to, and shall not, limit any right the LESSEE might
otherwise have to obtain injunctive relief against LESSOR or to take any action
not involving the liability of LESSOR to respond in monetary damages from
LESSOR'S assets other than from such property.
24. WAIVER. Failure on the part of the LESSOR or LESSEE to complain of
any action or non-action on the part of the other, no matter how long the same
may continue, shall never be a waiver by LESSOR or LESSEE, respectively, of its
rights hereunder. Further, no waiver at any time of the provisions hereof, by
LESSOR or LESSEE shall be construed as a waiver of any of the other provisions
hereof, and a waiver at any time of any of the provisions hereof shall not be
construed as a waiver at any subsequent time of the provisions. The consent or
approval of LESSOR or LESSEE to or of any action by the other requiring such
consent or approval shall not be construed to waive or render unnecessary
LESSOR'S or LESSEE'S consent or approval to or of any subsequent similar act by
the other.
25. STATUS REPORT. Recognizing that both parties may find it necessary
to establish to third parties, from time to time, the then current status of
performance hereunder, either party will, within ten (10) days after receipt of
a request therefore, furnish a statement of the status of any matter pertaining
to this Lease, including without limitation, acknowledgments that (or the extent
to which) each party is in compliance with its obligations under the terms of
the Lease.
26. CONDITION AND AREA. Except as otherwise provided in this Section,
the Premises are being delivered strictly in their condition "as is" and LESSEE
acknowledges that it has inspected the same and found them satisfactory. LESSOR
WILL BUILD SPACE IN ACCORDANCE WITH LESSEE'S SPECIFICATIONS USING BUILDING
STANDARD MATERIALS IN AN AMOUNT NOT TO EXCEED $15 PER SQUARE FOOT. On the
Commencement Date, all mechanical and electrical systems shall be in working
order.
A. PREPARATION OF THE PREMISES: Promptly upon execution of the
Lease, LESSOR will have prepared, at its sole cost and expense, certain
plans ("LESSOR'S Plans") for improvements to be made in the Premises
and adjacent areas of the Building to prepare the Premises for LESSEE'S
occupancy. Upon completion of LESSOR'S Plans, LESSOR shall submit the
same to LESSEE for LESSEE'S approval, which approval shall not be
unreasonably delayed or withheld. To the extent that LESSEE does not
disapprove LESSOR'S Plans in writing, and provide specific remedies
that will make LESSOR'S Plans acceptable, within
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fourteen (14) days after submission of the same by LESSOR, LESSEE shall
be conclusively deemed to have approved LESSOR'S Plans. Promptly after
approval of LESSOR'S Plans, LESSOR shall exercise all reasonable
efforts to complete, at its sole cost and expense the work specified in
LESSOR'S Plans. The work shall collectively be referred to as "LESSOR'S
Work" Tenant shall have no claim against LESSOR for failure so to
complete such Work. LESSOR shall bid LESSOR'S work to at least three
contractors and shall share the bids with LESSEE.
B. SUBSTANTIAL COMPLETION: The Premises shall be deemed ready
for occupancy on the first day (the "'Substantial Completion Date") as
of which LESSOR'S Work has been completed except for items of work
(and, if applicable, adjustment of equipment and fixtures) which can be
completed after occupancy has been taken without causing undue
interference with LESSEE'S use of the Premises (i.e. so-called "punch
list" items) and LESSEE has been given notice thereof. LESSOR shall
complete as soon as conditions permit all "punch list" items and LESSEE
shall afford LESSOR access to the Premises for such purposes.
If the Substantial Completion Date has not occurred by August
1, 1998 (the "Construction Completion Date") as it may be extended
pursuant to section 26.D. LESSEE shall have the right to terminate this
Lease by giving notice to LESSOR not later than thirty (30) days after
the Construction Completion Date (as so extended), of Tenant's desire
so to do; and this Lease shall cease and come to an end without further
liability or obligation on the part of either party thirty (30) days
after the giving of such notice, unless, within such 30-day period,
LESSOR substantially completes LESSOR'S Work; and such right of
termination shall be LESSEE'S sole and exclusive remedy at law or in
equity for LESSOR'S failure so to complete such Work.
C. CONCLUSIVENESS OF LESSOR'S PERFORMANCE. Except to the
extent to which LESSEE shall have given LESSOR notice, not later than
the end of the second full calendar month of the Term of the Lease next
beginning after the Commencement Date, of any respects in which LESSOR
has not performed LESSOR'S Work, LESSOR shall be deemed to have
completed LESSOR'S Work as of the Commencement Date of this Lease.
D. LESSEES' DELAYS:
1. If a delay shall occur in the Substantial
Completion Date as the result of:
i. Any request by LESSEE that LESSOR delay
in the commencement of completion of
LESSOR'S Work for any reason;
ii. Any change by LESSEE in any of LESSOR'S
Plans after LESSEE'S approval thereof'.
iii. Any other act or omission of LESSEE or
its officers, agents, servants or
contractors:
iv. Any special requirement of LESSOR'S
Plans not in accordance with LESSOR'S Plans
not in accordance with LESSOR'S building
standards; or
v. Any reasonably necessary displacement of
any of LESSORS Work from its place in
LESSOR'S construction schedule resulting
from any of the causes for delay referred to
in clauses (i), (ii), (iii), (iv), or this
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paragraph and the filling of such Work back
into such schedule; then LESSEE shall, from
time to time and within ten (10) business
days after demand therefor, pay to LESSOR
for each day of such delay the amount of
Basic Rent, Escalation Charges and other
charges that would have been payable
hereunder and the LESSEE'S obligation to pay
Basic Rent commenced immediately prior to
such delay.
2. If a delay in the Substantial Completion Date, or
if any substantial portion of such delay, is the result of
Force Majeure, and such delay would not have occurred but for
a delay described in paragraph above, such delay shall be
deemed added to the delay described in that paragraph.
The delays referred to above are herein referred to
collectively and individually as "LESSEE'S Delay."
3. If, as a result of LESSEE'S Delay(s), the
Substantial Completion Date is delayed in the aggregate for
more than thirty (30) days, LESSOR may (but shall not be
required to) at any time thereafter terminate this Lease by
giving written notice of such termination to LESSEE and
thereupon this Lease shall terminate without further liability
or obligation on the part of either party, except that LESSEE
shall pay to LESSOR the cost theretofore incurred by LESSOR in
performing LESSOR'S Work, plus an amount equal to LESSOR'S
out-of-pocket expenses incurred in connection with this Lease,
including, without limitation, brokerage and legal fees,
together with any amount required to be paid pursuant to
Section 26 through the effective termination date.
4. The Construction Completion Date shall
automatically be extended for the period of any delays caused
by LESSEE'S Delay(s) or Force Majeure.
27. LESSOR'S WARRANTY. LESSOR warrants and represents that it is the
owner of record of the Premises and that it has authority to grant the leasehold
interest conveyed hereby.
28. SEVERABILITY. If any term or provision of this Lease, or the
application thereof to any person or circumstance shall, to the extent the same
shall be invalid or unenforceable, the remainder of this Lease, or the
application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Lease shall be valid and be
enforced to the fullest extent permitted by law.
29. RECORDING. LESSEE agrees not to record this Lease, but, if the Term
of this Lease (including any extended term) is seven (7) years or longer, each
party hereto agrees, on the request of the other, to execute a so-called Notice
of Lease in recordable form and complying with applicable law and reasonably
satisfactory to LESSOR'S attorneys. 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.
30. HOLDING OVER. Any Holding Over by LESSEE after the expiration of
the Term of this Lease shall be treated as a tenancy at sufferance at a rate
equal to one and one half times the Basic Rent then in effect plus Additional
Rent and other charges herein provided. LESSEE shall also pay to LESSOR all
damages, direct and/or indirect, sustained by reason of any such as far as
applicable.
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31. GOVERNING LAW. This Lease shall be governed exclusively by the
provisions hereof and by the laws of the Commonwealth of Massachusetts, as the
same may from time to time exist.
32. RELOCATION. Deleted.
33. ENTIRE AGREEMENT. This Lease and the Exhibits made a part hereof
contain the entire and only agreement between the parties and any and all
statements and representations, written and oral, including previous
correspondence and agreements between the parties hereto, are merged herein.
LESSEE acknowledges that all representations and statements upon which it relied
in executing this Lease are contained herein and that the LESSEE in no way
relied upon any other statements or representations, written or oral. Any
executory agreement hereafter made shall be ineffective to change, modify,
discharge or effect an abandonment of this Lease in whole or in part unless such
executory agreement is in writing and signed by the party against whom
enforcement of the change, modification, discharge or abandonment is sought.
34. OPTION TO EXTEND: Provided that at the time of such exercise (i)
there then exists no Default of LESSEE, (ii) this Lease is then in full force
and effect, and (iii) LESSEE is in actual occupancy of all or substantially all
of the Premises, LESSEE shall have the right and option to extend the term of
this Lease for one (1) extended term of five years (the "Extended Term'). The
Extended Term shall commence on the day immediately succeeding the expiration
date of the Initial Term, and shall end on the day immediately preceding the
fifth anniversary of the first day of such Extended Term. LESSEE shall exercise
such option to extend by giving written notice to LESSOR of its desire to do so
not earlier than twelve (12) months and not later than nine (9) months prior to
the expiration date of the Initial Term. Provided the conditions of clauses (i),
(ii) and (iii) of this section shall have been satisfied, the giving of such
notice by LESSEE shall automatically extend the Term of this Lease for the
Extended Term, and no instrument of renewal need be executed. In the event that
LESSEE fails to give such notice to LESSOR, this Lease shall automatically
terminate at the end of the Initial Term, and LESSEE shall have no further
option to extend the Term of this Lease. It is agreed that time is of the
essence with respect to the giving of such notice. The Extended Term shall be on
all the terms and conditions of this Lease, except that (I) option to extend
that Term of this Lease shall be deleted, and (II) the Basic Rent for the
Extended Term shall be at Fair Market Value, not less than the sum of the rent
and all additional rent being paid by LESSEE during the final year of the
Initial Term. LESSOR shall designate Fair Market Value, (the "Fair Market
Value") by written notice to LESSEE within sixty (60) days of receipt of notice
from LESSEE. If LESSEE disagrees with such designation, (the "Designation"),
LESSEE shall by written notice, advise LESSOR of such disagreement; otherwise
LESSEE shall conclusively be deemed to have agreed to such Designation.
In the event that the Parties are unable to agree, each Party shall
appoint an appraiser. Each appraiser so appointed shall be instructed to
determine independently the Fair Market Value and then confer. If the two
appraisers are unable to determine a Designation acceptable to both parties,
they shall appoint a third appraiser. The Designation of this appraiser shall be
considered final.
35. RIGHT OF FIRST OFFER. If at any time during the Term of this Lease,
LESSOR shall desire to lease any space on the third, fourth, fifth or sixth
floor of the Building (the "First Offer Space"), LESSOR shall notify LESSEE and
set forth the terms and conditions on which LESSOR is willing to lease all or a
part of the First Offer Space, including, without limitation, rent, build-out
allowance and other incentives or inducements to lease, if any. Provided that
the time of such exercise (i) there then exists no Default of LESSEE, (ii) this
Lease is then in full force and effect, and (iii) LESSEE is in actual occupancy
of the entire Premises demised thereunder, LESSEE may, by giving notice in
writing to LESSOR within five (5) business days after receipt of LESSOR'S
notice, elect to lease the First Offer
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Space on the terms so offered by LESSOR. If LESSEE shall so elect to lease the
First Offer Space, it shall within ten (10) business days after such election
enter into an amendment to this Lease incorporating the terms and contained in
LESSOR'S notice. If LESSEE shall not elect to lease the First Offer Space within
such five (5) business day period, or shall fail to enter into such amendment to
this Lease within such ten-day period, LESSEE shall have no further rights under
this section with respect to that portion of the First Offer Space and LESSOR
shall be free to lease any or all of such space offered to other parties.
IN WITNESS WHEREOF, the said parties hereunto set their hands and seals
this 15th day of November, 1997.
LESSEE: Exchange Applications, Inc. LESSOR: Lincoln Plaza Limited
Partnership
BY: L.P. Properties, Inc. - its
General Partner
BY: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ - its President
By: /s/ ▇▇▇▇ ▇. ▇'▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------- ---------------------------
▇▇▇▇ ▇. ▇'▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President and CFO
Hereunto Duly Authorized
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