EXHIBIT 10.37
STANDARD FORM COMMERCIAL LEASE
THIS INSTRUMENT IS A LEASE, dated as of April 25, 2003, 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: OMV Associates Limited Partnership, a Massachusetts limited
partnership
LESSOR'S Address: c/o Capital Properties Management, Inc., ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
LESSEE: The First Marblehead Corporation
LESSEE'S Original Address: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
LESSEE'S Notice Address (Section 20): ▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, Attn: Chief Operating Officer
Basic Rent: $145,440.00/year $12,120/month $20/psf
As the same may be adjusted and/or abated in accordance with the terms
and conditions of this Lease.
Premises Rentable Area: Agreed to be 7,272 square feet located on the
fifth floor of the Building.
Permitted Uses: General Office, call center, and related uses.
Escalation Factor: 1.63 %, as computed in accordance with the
Escalation Factor Computation.
Initial Term: Ten (10) months commencing on the Commencement Date and
expiring on March 31, 2004.
Security Deposit: Intentionally deleted.
Base Operating Expenses: The actual Operating Expenses for the
calendar year commencing January 1, 2004 and ending December 31, 2004.
Base Taxes: The actual real estate taxes assessed against the Property
for the Tax Year commencing July 1, 2003 and ending June 30, 2004.
Electricity Cost: $10,908.00/year $909.00/month $1.50/psf
Broker: ▇▇▇▇▇▇▇▇ ▇▇▇▇ Company
B. ADDITIONAL DEFINITIONS.
Agent: Capital Properties Management, Inc., ▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Business Days: 8:00 a.m. - 6:00 p.m. Monday through Friday and
Saturday 9:00 a.m. through 1:00 p.m. except 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, 2003.
Common Areas: The lobbies, hallways, stairways, elevators, lavatories,
and other portions of the Building and intended for common use by the lessees
thereof.
Escalation Factor Computation: Premises Rentable Area divided by the
building rentable area (445,765 square feet).
Guarantor: Intentionally deleted.
Initial Public Liability Insurance: $1,000,000.00 per occurrence
(combined single limit) for property damage, personal injury or death.
Premises: A portion of the Building as shown on Exhibit A attached
hereto.
Property: The real property on which the Building is located and the
Building and other improvements constructed thereon.
Extended Terms: As defined in Section 35.
2. PREMISES. A portion of the building owned by LESSOR consisting of
approximately 7,272 SQUARE FEET OF RENTABLE AREA ON THE FIFTH FLOOR OF THE
BUILDING AND SUBSTANTIALLY KNOWN AS SUITE 550 on the plan attached hereto as
"Exhibit A" (the "Premises") together with the right to use in common, with
others entitled thereto, the Common Areas. LESSEE shall have access to the
Premises at all times subject to LESSOR'S security access controls.
3. TERM. The initial term of this Lease shall be for ten (10) months
commencing on June 1, 2003 and expiring March 31, 2004.
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4. BASIC RENT. The LESSEE shall pay to the LESSOR rent at the rate
described in Section 1 of this Lease, payable in advance on the first day of
each month commencing without deduction or set off, except as otherwise provided
in this Lease, on the Commencement Date.
5. SECURITY DEPOSIT. Intentionally deleted.
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, an amount equal to the product of
the excess multiplied by the Escalation Factor. Said payment shall be made by
LESSEE within thirty (30) days after LESSEE'S receipt of a (i) written statement
from LESSOR calculating the amount due, and (ii) a copy of the real estate tax
▇▇▇▇ received by LESSOR for the tax year in question. Any such statement by
LESSOR shall be binding and conclusive upon LESSEE unless, within ninety (90)
days after that giving by LESSOR of such statement, LESSEE shall notify LESSOR
that either (i) LESSEE disputes the correctness of such statement, specifying
the particular respects in which the statement is claimed to be incorrect, or
(ii) LESSEE elects to exercise its audit rights under this Lease. If the LESSOR
obtains an abatement of any real estate taxes for any year within the Term,
LESSOR shall recalculate the amount that would have been due from LESSEE for
said tax year. If such amount is less than the amount actually paid by LESSEE
for said tax year, then LESSOR shall refund to LESSEE such excess payment, after
deducting therefrom LESSEE'S share (based on the Escalation Factor) of
reasonable fees and costs incurred in obtaining the same, if any.
B. OPERATING. If, in any calendar year, the Operating Expenses (as
herein defined) for the Property, are in excess of the Base Operating Expenses,
LESSEE will pay to LESSOR, as additional rent hereunder, an amount equal to the
product of the excess multiplied by the Escalation Factor. Said payment shall be
made by LESSEE within thirty (30) days after LESSEE'S receipt of a written
statement from LESSOR 1) itemizing the Operating Expenses for the calendar year
in question, and 2) calculating the amount due. Operating expenses are defined
for the purposes of this Lease as: the aggregate costs or expenses reasonably
incurred by LESSOR with respect to the operation, administration, cleaning,
repair, maintenance and management of the Property, including, without
limitation, those items enumerated in "Exhibit C" attached to this Lease,
subject, however, to the exclusions also enumerated in "Exhibit C" Any such
accounting by LESSOR shall be binding and conclusive upon LESSEE unless within
ninety (90) days after that giving by LESSOR of such statement, LESSEE shall
notify LESSOR that either (i) LESSEE disputes the correctness of such
accounting, specifying the particular respects in which the accounting is
claimed to be incorrect, or (ii) LESSEE elects to exercise its audit rights
under this Lease.
C. PAYMENT. At LESSOR'S option, payment of Additional Rent shall be
on a monthly basis based on LESSOR'S good faith estimate of the Tax and
Operating Expenses for the following year. Following the end of each tax and
calendar year, LESSOR shall provide LESSEE with a reconciliation detailing the
total real estate taxes or Operating Expenses paid by
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LESSOR for the period in question and calculating the amount due from LESSEE. If
the estimated payments are less than the actual amount due from LESSEE, LESSEE
shall pay the additional amount within thirty (30) days after its receipt of the
reconciliation. If the estimated payments are greater than the actual amount due
from LESSEE, LESSOR shall credit to LESSEE the amount of the over payment
against the installment(s) of Basic Rent and Additional Rent next succeeding
LESSEE'S receipt of the reconciliation. In connection with any real estate tax
reconciliation submitted by LESSOR, LESSOR shall attach thereto a copy of the
real estate tax ▇▇▇▇ received by LESSOR for the tax year in question. Any
reconciliation submitted by LESSOR shall be binding and conclusive upon LESSEE
unless, within ninety (90) days after that giving by LESSOR of such
reconciliation, LESSEE shall notify LESSOR that LESSEE disputes the correctness
of such reconciliation, specifying the particular respects in which the
reconciliation is claimed to be incorrect The obligations of LESSOR and LESSEE
under this Section 6.C shall survive the expiration or earlier termination of
this Lease.
D. AUDIT. In the event LESSEE elects to audit LESSOR'S statement or
reconciliation of Operating Expenses or statement of real estate taxes in
accordance with this clause, such audit must be (i) conducted by an independent
nationally recognized accounting firm that is not being compensated by LESSEE on
a contingency fee basis, and (ii) completed within ninety (90) days following
LESSEE'S notice disputing the correctness of the statement of Operating
Expenses. If the audit discloses that LESSEE'S Additional Rent has been
overstated, LESSOR shall revise the applicable components of the Additional Rent
and shall credit the overpayment made by LESSEE against the installments of
Basic Rent and Additional Rent next succeeding the completion of such audit.
Furthermore, all of the information obtained through the LESSEE'S audit with
respect to financial matters (including, without limitation, costs, expenses,
income) and any other matters pertaining to the LESSOR and/or the Property as
well as any compromise, settlement, or adjustment reached between LESSOR and
LESSEE relative to the results of the audit shall be held in strict confidence
by LESSEE and its officers, agents, and employees; and LESSEE shall cause its
auditor and any of its officers, agents, and employees to be similarly bound. As
a condition precedent to LESSEE'S exercise of its right to audit, LESSEE must
deliver to LESSOR a signed confidentiality agreement from the auditor (in form
acceptable to LESSOR and LESSEE) reached between LESSOR and LESSEE shall be held
in strict confidence and shall not be revealed in any manner to any person
except upon the prior written consent of LESSOR. Notwithstanding the foregoing,
LESSOR agrees that such information may be disclosed to LESSEE'S advisers,
consultants, and attorneys on a "need to know" basis, and may be disclosed by
LESSEE in connection with any suit, proceeding or arbitration or other dispute
resolution procedure relating to the amount due from LESSEE under this
Section 6. LESSEE understands and agrees that this provision is of material
importance to the LESSOR and that any violation of the terms of this provision
shall result in immediate and irreparable harm to the LESSOR. LESSOR shall have
all remedies allowed by law or equity if LESSEE, its officers, agents, or
employees and/or the auditor violate the terms of this provision, including,
without limitation, the right to terminate LESSEE'S right to audit.
7. UTILITIES. The LESSEE shall pay to the LESSOR the monthly electrical
costs described in Section 1 of this Lease in advance on the first day of each
month commencing on the Commencement Date. The LESSEE shall pay, as they become
due, the bills for any other
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services or utilities furnished to the Premises for which the LESSEE has
contracted directly with the provider thereof. The LESSOR agrees (i) to provide
electricity and all other utility service to the Premises, (ii) 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 on regular business days as is reasonably required to
maintain a reasonably comfortable temperature (68 degrees to 74 degrees
Fahrenheit so long as the outside temperature does not exceed 95 degrees), (iii)
to furnish elevator service, and to light passageways, stairways, and other
common areas during business hours, (v) to furnish security in the main lobby of
the building at all times, and (vi) to furnish janitorial and cleaning service
to the Premises in accordance with the specifications attached hereto as Exhibit
F, 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 shall use commercially reasonable efforts to restore any interruption of
service in a commercially reasonable period of time.
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. The LESSEE shall use the
Premises only for the purposes listed in Section 1 of this Lease.
9. COMPLIANCE WITH LAWS. The LESSEE acknowledges that no trade or
occupation shall be conducted in the Premises or use made thereof which will be
unlawful, unreasonably 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 to the extent such
compliance relates to any alterations or additions made to the Premises by
LESSEE or to the specific manner in which LESSEE is using the Premises (as
compared to the uses of the Premises as specified in Section IA of this Lease);
and LESSOR agrees to comply with all such laws to the extent LESSEE is not
obligated to do so under the terms of this Section 9. LESSOR makes no
representation that uses contemplated by the LESSEE are permitted by law, but
LESSOR represents to LESSEE that the Premises is zoned for General Office Use.
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.
LESSOR acknowledges and agrees that the use of the Premises for the Permitted
Uses does not violate the provisions of the immediately preceding sentence. Nor
shall LESSEE cause or permit the storage, use, generation, release or
disposition of any hazardous
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materials in, on or about the property by LESSEE, its agents, employees or
contractors, other than customary office supplies in customary quantities.
LESSEE will not permit the Premises to be used or operated in a manner that may
cause the Premises or the Property to be contaminated by any hazardous materials
in violation of any hazardous materials laws. LESSEE will immediately advise
LESSOR in writing of (1) any and all enforcement, cleanup, remedial, removal, or
other governmental or regulatory actions instituted, completed, or threatened by
or against LESSEE pursuant to any, hazardous materials laws relating to any
hazardous materials affecting the Premises; and (2) all claims made or
threatened by any third party against LESSEE, LESSOR, the Premises or the
Property which LESSEE has knowledge of relating to damage, contribution, cost
recovery, compensation, loss or injury resulting from any hazardous materials on
or about the Premises. Without LESSOR'S prior written consent, LESSEE will not
take any remedial action or enter into any agreement or settlements in response
to the presence of any hazardous materials in, on, or about the Premises.
LESSEE will be solely responsible for and will defend, indemnify and hold
LESSOR, its agents, and employees harmless from and against all claims, costs,
expenses, damages, and liabilities, including employees harmless from and
against all claims, costs expenses, damages and liabilities, including
reasonable attorneys' fees and costs, arising out of or in connection with
LESSEE'S breach of the environmental provisions of this Section 10. LESSEE will
be solely responsible for and will defend, indemnify, and hold LESSOR, its
agents, and employees harmless from and against any and all claims, costs, and
liabilities, including reasonable attorneys' fees and costs, arising out of or
in connection with the removal, cleanup and restoration work and materials
necessary to return the Premises and any other property of whatever nature
located on the Property to their condition existing prior to the appearance of
LESSEE'S hazardous materials on the Premises. LESSEE'S obligations under this
Section 10 will survive the expiration or other termination of this Lease.
The LESSEE shall not use the Premises in any way that is inconsistent with
the Permitted Use, which will cause an extra insurance premium. However, in the
event that LESSEE does so, the LESSEE shall, on demand, reimburse the LESSOR all
extra insurance premiums solely attributed to use of the Premises by 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, and ordinary wear and tear
only excepted, and whenever necessary, to replace interior plate glass.
A. LESSEE'S OBLIGATIONS. The Premises are now in good condition 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 prior to placing any sign on the Premises that is visible from
the exterior of the Premises. The LESSEE shall keep and maintain the Premises in
good order and repair at its own expense unless such maintenance is LESSOR
obligation under the terms of this Lease. The LESSOR shall at LESSEE'S expense
and upon LESSEE'S request, furnish and install all replacement lamps, lighting
tubes, bulbs and ballasts which may be required in the Premises during the terms
hereof.
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▇. ▇▇▇▇▇▇'▇ OBLIGATIONS. The LESSOR agrees to maintain the structure
of the Building (including, without limitation, the roof, the exterior walls,
the exterior windows and doors, the structural components, and the foundation),
the Common Areas, the building systems (including, without limitation, the
plumbing, electrical, mechanical, sprinkler, and fire safety systems), and the
elevators in good condition and in a manner consistent with similar buildings in
Boston, Massachusetts, reasonable wear and tear, damage by fire and other
casualty only excepted, unless such maintenance is required because of the acts
of LESSEE or those for whose conduct the LESSEE is legally responsible, then
LESSEE agrees to reimburse LESSOR for the reasonable cost thereof, subject to
the mutual waiver of subrogation provisions of this Lease.
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.
If, due to an event beyond LESSOR'S reasonable control, there is an
interruption of any of the above services or any other services provided for in
the Lease and such interruption continues for more than five (5) business days,
such that as a result the Premises are rendered untenantable or unusable
thereby, an appropriate proportion of the Basic Rent shall be abated to the
extent that LESSEE'S use of the Premises is diminished by such interruption
until such services are restored.
12. ADDITIONS & ALTERATIONS. The LESSEE shall not make structural
alterations or additions to the Premises or the building's systems, but may make
non-structural alterations provided the LESSOR consents thereto in writing,
which consent shall not be unreasonably withheld, conditioned or delayed.
Notwithstanding the foregoing, LESSEE shall have the right to paint, recarpet
and perform other cosmetic-type alterations without obtaining LESSOR'S prior
written consent; in connection with such cosmetic-type alterations, LESSEE
agrees to notify LESSOR of such alterations at least five (5) business days
before the commencement of such alterations. 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 famished 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 promptly without cost to LESSOR. If such lien
is not discharged within fifteen (15) days after LESSEE has notice or knowledge
of such filing of such lien, LESSEE shall furnish LESSOR, within such fifteen
(15) day period, security satisfactory to LESSOR in the amount of 120% of the
claim plus estimated costs to discharge the lien. Any alterations or
improvements made by the LESSEE (other than movable trade fixtures not attached
to the Premises, partitions, and office equipment) shall become the property of
the LESSOR at the termination of occupancy as provided herein, and LESSEE shall
have no obligation to remove the same.
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13. ASSIGNMENT & SUBLEASING. 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 unreasonably withheld or conditioned. 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 or ASSIGNEE is paying rent at an amount greater than in this
agreement, then 50% of the amount over, net of construction, brokerage,
architectural, and attorney costs, shall be due to LESSOR as and when received
by LESSEE. If an assignment or sublease is terminated, LESSEE shall pay to
LESSOR 50% of the value of any security deposit, money, personal property,
stock, or equity that LESSEE receives as a result of the terminated assignment
or sublease. No assignment or sublease shall release LESSEE from, and LESSEE
shall remain fully liable for, performance of LESSEE'S obligations under the
lease. LESSEE shall not sublease or assign to a current or prospective tenant of
the Building without LESSOR's prior written consent. Prospective tenants are
those tenants who have been introduced to the Property within thirty (30) days
of the sublease or assignment proposal or any tenant in negotiation with LESSOR.
LESSEE shall not sublease more than 20% below Fair Market Rental Value, without
LESSOR'S prior written consent. LESSEE shall not sublease or assign to any
tenant whereby the sublessee or assignees use violates the exclusive use of any
tenant at the Building.
(a) SUBMISSION OF INFORMATION. If LESSEE requests LESSOR'S consent to
a specific assignment or sublease, LESSEE will submit in writing to LESSOR (i)
the name and address of the proposed assignee or subtenant; (ii) the business
terms of the proposed assignment or sublease; (iii) reasonably satisfactory
information as to the nature and character of the business of the proposed
assignee or subtenant, and as to the nature of its proposed use of the space;
(iv) reasonable banking, financial, or other credit information reasonably and
character of the proposed assignee or subtenant; (v) the proposed form of
assignment (including lease assumption provisions) or sublease; and (vi) any
other information reasonably required by Landlord.
(b) LESSOR'S OPTIONS. Notwithstanding anything to the contrary
contained in this Section 13, in the event-of an assignment or sublease of this
Lease of more than 15,000 rentable square feet of the Premises, then, in
addition to any rights contained herein, shall have the following option at its
discretion:
(i) to give LESSEE written notice of LESSOR'S intention
to terminate this Lease as to all or any portion of the Premises on the
date such notice is given or on any later date specified therein,
whereupon, on the date specified in such notice, LESSEE'S right to
possession of the Premises or such portion of the Premise shall cease and
this Lease shall thereupon be terminated, except as to any incomplete
obligations of LESSEE.
LESSOR shall notify LESSEE in writing within thirty (30) days of
receipt of the information required pursuant to Section 13(a) above of its
intent to approve or disapprove a proposed assignment or sublease. Such notice
shall include LESSOR'S execution or waiver of its right to terminate the Lease.
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(c) PERMITTED TRANSFER. LESSOR consents to an assignment of this
Lease or to a sublease of all or part of the Premises to one or more
wholly-owned subsidiary of LESSEE (specifically, First Marblehead Education
Resources, Inc. and ▇▇▇▇ Marketing Services, Inc.) or the parent of LESSEE or to
any corporation into or with which LESSEE may be merged or consolidated and to a
sublease of not more than 5,000 rentable square feet to The Education Resources
Institute, Inc.; provided that (a) LESSEE promptly provides LESSOR with a fully
executed copy of such assignment or sublease; (b) LESSEE is not released from
liability under this Lease and (c) the assignee assumes in writing all of the
obligations of LESSEE under this Lease. In connection with any of the foregoing
permitted assignments or subleases, LESSOR acknowledges that LESSOR'S rights
under Section 13(a) and 13(b) shall not apply and LESSOR shall not be entitled
to collect any excess rent.
14. SUBORDINATION. This Lease shall be subject and subordinate to any and
all mortgages, deeds of trust and 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 such 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. 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 inspect the Premises; exhibit the
Premises to prospective purchasers, Lenders, or during the last twelve (12)
months, tenants; determine LESSEE'S compliance with the Lease; remove placards
and signs not approved and affixed as herein provided, and make repairs and
alterations to the Premises and Property as LESSOR should elect to do. In
exercising any of the foregoing rights, LESSOR shall take all commercially
reasonable measures to minimize the disruption to or interference with LESSEE'S
use and occupancy of the Premises. LESSOR shall use commercially reasonable
efforts to provide LESSEE with notice prior to entering the Premises after
normal business hours.
16. INDEMNIFICATION AND LIABILITY. LESSEE shall save LESSOR harmless, and
shall exonerate and indemnify from and against any and all claims, liabilities
or penalties asserted by or on behalf of any person, firm, corporation or public
authority, except as a result of the negligence or willful acts and omissions of
LESSOR, its agents, employees, representatives, contractors or licensees:
(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 or its employees, agents,
contractors, representatives or licensees;
(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
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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 LESSOR;
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 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. INSURANCE. The LESSEE shall maintain with respect to the Premises and
the Property commercial general liability insurance in the amount of $1,000,000
with property damage insurance in limits of $100,000 and Workers Compensation
insurance insuring against and satisfying LESSEE'S obligations and liabilities
under the Workers Compensation Laws of Massachusetts. Said insurance shall be
with responsible companies qualified to do business in Massachusetts and in good
standing therein insuring LESSEE against injury to persons or damage to property
as provided. With respect to the commercial general liability insurance, LESSOR
and its managing agent shall be named as additional insured. LESSEE agrees to
increase limits as LESSOR'S mortgagee reasonably requires, but not more
frequently than once every three (3) years. The LESSEE shall deposit with the
LESSOR certificates for such insurance at or prior to the commencement of the
Initial 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.
LESSOR shall maintain with respect to 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 and Workers Compensation
insurance insuring against and satisfying LESSOR'S obligations and liabilities
under the Workers Compensation Laws of Massachusetts in responsible companies
qualified to do business in Massachusetts in good standing therein. LESSOR shall
also maintain property casualty insurance coverage for the full replacement
value of the building.
LESSOR and LESSEE each hereby waive any and every claim for recovery from
the other for any and all loss of or damage to the Building or Premises or to
the contents thereof, which loss or damage is covered or is required by this
Lease to be covered by physical damage insurance policies, to the extent that
such loss or damage is recoverable under said insurance policies.
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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 and the Common Areas of the
Building to a condition substantially similar to the condition before the fire,
casualty, or taking, or
(b) The LESSOR fails to restore the Premises and the Common Areas of
the Building to a condition substantially similar to the condition before the
fire, casualty, or taking 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.
Should less than a substantial portion of the Premises as determined by
LESSOR be damaged by fire or other casualty, LESSOR shall restore the Premises.
LESSOR shall restore the Premises to a condition substantially similar to the
condition before the fire, casualty, or taking within ninety (90) days of said
fire or casualty, as such date may be extended ninety (90) days if LESSOR is
diligently working to restore the Premises. During the restoration period where
a portion of the Premises is unsuitable for its intended use, a just and
proportionate abatement of rent shall be made.
19. DEFAULT AND BANKRUPTCY.
A. In the event that:
(i) 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) Business Days after written notice thereof; or
(ii) 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 thirty
(30) days after written notice thereof (provided, however, if such default
cannot be cured within said thirty (30) day period, LESSEE shall not be
deemed in default hereunder so long as LESSEE commenced the cure of such
default within said thirty (30) day period and is diligently prosecuting
such cure to completion in not more than an addition thirty (30) day
period; or
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(iii) The LESSEE files or has filed against it in any
bankruptcy, insolvency or reorganization petition, which petition is not
dismissed within sixty (60) days or
(iv) 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
(v) Any attachment is made by LESSEE'S creditors of the
leasehold interest outlined in this Lease; or
(vi) LESSEE violates the terms of Section 13 "Assignment
& Subleasing"; or
(vii) 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, as permitted by
applicable law, 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.
▇. ▇▇▇▇▇▇'▇ REMEDIES. If any one or more events of default set forth
above occurs, LESSOR may, at its election:
(i) Give LESSEE written notice of LESSOR'S intention to
terminate this Lease on the earliest date permitted by law or on any later
date specified in such notice, in which case LESSEE'S right to possession
of the Premises will cease and this Lease will be terminated, except as to
LESSEE'S liability, as if the expiration of the term fixed in such notice
were the end of the Term;
(ii) Without further demand or notice, and without
terminating this Lease, but in accordance with all applicable laws, reenter
and take possession of the Premises or any part of the Premises, repossess
the same, expel LESSEE and those claiming through or under LESSEE and
remove the effects of both or either, using such force for such purposes as
may be necessary, without being liable for prosecution, without being
deemed guilty of any matter of trespass, and without prejudice to any
remedies for arrears of Basic Rent or other amounts payable under this
Lease or as a result of any preceding breach of covenants or conditions; or
(iii) Without further demand or notice, if the LESSEE
shall default 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, then, during the
continuance of such default, LESSOR, without being under any obligation to
do so and without thereby waiving such default, may remedy such
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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.
If LESSOR elects to reenter as provided in subsection (ii) or if LESSOR
takes possession pursuant to legal proceedings or pursuant to any notice
provided by law, LESSOR may, from time to time, without terminating this Lease,
relet the Premises or any part of the Premises in LESSOR'S or LESSEE'S name, but
for the account of LESSEE, for such term or terms (which may be greater or less
than the period which would otherwise have constituted the balance of the Term)
and on such conditions and upon such other terms (which may include concessions
of free rent and alteration and repair of the Premises) as LESSOR, in its
reasonable discretion, may determine, and LESSOR may collect and receive the
rents from such reletting. However, all proceeds from such relettings shall be
credited against LESSEE'S obligations. LESSOR will in no way be responsible or
liable for any failure to relet the Premises, or any part of the Premises, or
for any failure to collect any rent due upon such reletting; however, LESSOR
shall take commercially reasonable measures to mitigate its damages to the
extent required by law. No such reentry or taking possession of the Premises by
LESSOR will be construed as an election on LESSOR'S part to terminate this Lease
unless a written notice of such intention is given to LESSEE. No written notice
from LESSOR under this Section or under a forcible or unlawful entry and
detainer statute or similar law will constitute an election by LESSOR to
terminate this Lease unless such notice specifically so states. LESSOR reserves
the right following any such reentry or reletting to exercise its right to
terminate this Lease by giving LESSEE such written notice, in which event this
Lease will terminate as specified in such notice.
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 1 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 in writing and 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 cure periods under this
Lease that are triggered by the giving of such notice shall be deemed to
commence on the date the notice is received by the recipient or the date on
which the recipient refuses delivery, whichever is applicable. 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 personal goods and effects from the Premises,
(including, without
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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, ordinary wear and tear and damage by fire or
other casualty 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 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 1 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, then LESSEE agrees to
defend the same and indemnify LESSOR against any such claim. LESSOR agrees to
pay the broker listed in Section 1 of this Lease a commission, and to defend and
indemnify LESSEE against any claim by said broker relating to said commission.
23. LESSOR'S LIABILITY. The LESSOR is not personally liable under this
Lease. (a) LESSEE specifically agrees to look solely to the LESSOR'S then equity
in the Property and to any insurance or condemnation proceeds received by LESSOR
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 construed as a waiver by LESSOR or LESSEE,
respectively, of its rights under this Lease. Further, no waiver at any time of
the provisions of this Lease, by LESSOR or LESSEE shall be construed as a waiver
of any of the other provisions of this Lease, 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 same 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
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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. Upon
execution of this Lease, LESSOR shall at LESSOR's sole cost and expense perform
the work outlined in the demolition plans from ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ dated April 16,
2003, and attached hereto as Exhibit D. LESSEE shall submit architectural plans
to LESSOR for LESSOR's approval prior to the commencement of any work, such
approval shall not be unreasonably withheld, conditioned, or delayed.
27. LESSOR'S WARRANTY. LESSOR warrants and represents that it is the owner
of record of the Property 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 and LESSEE. 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 150% 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 holding over. Otherwise, such Holding
Over shall be on the terms and conditions set forth in this Lease as far as
applicable.
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. No amendment, alteration, modification of, or
addition to the Lease will be valid or binding unless expressed in writing and
signed by LESSOR and LESSEE. LESSEE agrees to make any modifications of the
terms and provisions of this Lease required and requested by any lending
institution providing financing for the Building, or Property, as the case may
be, provided that no such modifications will adversely affect LESSEE'S rights
and obligations under this Lease.
32. RELOCATION. Intentionally deleted.
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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. RULES & REGULATIONS. LESSEE, its employees, agents, licensees, and
visitors will at all times, observe faithfully, and comply strictly with, the
Rules and Regulations set forth in Exhibit ▇. ▇▇▇▇▇▇ may from time to time
reasonably amend, delete, or modify existing Rules and Regulations, or adopt
reasonable new Rules and Regulations for the use, safety, cleanliness, and care
of the Premises and the Property, and the comfort, quiet, and convenience of
occupants of the Property, provided such amendments, deletions, modifications,
or new rules do not reduce the services to be provided by LESSOR under this
Lease, restrict LESSEE'S access to the Premises, or otherwise interfere with
LESSEE'S use and occupancy of the Premises in the manner contemplated by this
Lease.. Modifications or additions to the Rules and Regulations will be
effective upon thirty (30) days' prior written notice to LESSEE from LESSOR. In
the event of any breach of any Rules or Regulations beyond applicable notice and
cure periods or any amendments or additions to such Rules and Regulations,
LESSOR will have all remedies that this Lease provides for default by LESSOR,
and will in addition have any remedies available at law or in equity, including
the right to enjoin any breach of such Rules and Regulations. LESSOR will not be
liable to LESSEE for violation of such Rules and Regulations by any other
tenant, its employees, agents, visitors, or licensees or any other person. In
the event of any conflict between the provisions of this Lease and the Rules and
Regulations, the provisions of this Lease will govern. LESSOR covenants and
agrees that all Rules and Regulations shall be uniformly applied and enforced.
35. OPTION TO EXTEND. Provided that at the time of such exercise (i) there
then exists no Default of LESSEE beyond applicable notice and cure periods, and
(ii) this Lease is then in full force and effect, LESSEE shall have the right
and option to extend the term of this Lease for two (2) extended terms of six
(6) months each (the "Extended Terms"). The Extended Terms shall commence on the
day immediately succeeding the expiration date of then current term, and shall
end on the day immediately preceding the sixth month 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 later than sixty (60) days
prior to the expiration date of then current term. Provided the conditions of
clauses (i) and (ii) 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 then current 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 Terms shall be
on all the terms and conditions of this Lease, except that (I) upon the exercise
of
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the second (2nd) six (6) month option, the option to extend the Term of this
Lease shall be deleted, and (II) the Basic Rent for the Extended Terms shall be
at Fair Market Value. LESSOR shall designate Fair Market Value, (the "Fair
Market Value") by written notice to LESSEE within thirty (30) 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 within thirty (30) days
after LESSOR'S receipt of LESSEE'S notice of disagreement, then each Party shall
appoint a reputable, independent appraiser, who is a member of the Member
Appraisal Institute of the American Institute of Real Estate Appraisers and who
has at least ten (10) years of experience appraising commercial office space in
Massachusetts. 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 Fair Market Value acceptable to both parties within
forty-five (45) days after their appointment, they shall appoint a third
appraiser. The Designation of this appraiser shall be considered final.
IN WITNESS WHEREOF, the said parties hereunder set their hands and seals as
of the date above.
LESSEE: First Marblehead Corporation LESSOR: OMV Associates Limited
Partnership
By: Park Square Corporation - its
General Partner
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ - its President
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------- -----------------------------------
Hereunto Duly Authorized
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EXHIBIT A
Premises
[Picture]
Fifth Floor Stacking Plan
The Park Square Building
- 18 -
EXHIBIT B
Intentionally deleted.
- 19 -
EXHIBIT C
ITEMS INCLUDED IN OPERATING EXPENSES
A. Without limitation, Operating Expenses shall include:
1. All expenses incurred by Lessor or Lessor's agents which shall be
directly related to employment of personnel for the Property, including amounts
incurred for wages, salaries and other compensation for services, payroll,
social security, unemployment and similar taxes, workmen's compensation
insurance, disability benefits, pensions, hospitalization, retirement plans and
group insurance, uniforms and working clothes and the cleaning thereof, and
expenses imposed on Lessor or Lessor's agents pursuant to any collective
bargaining agreement for the services of employees of Lessor or Lessor's agents
in connection with the operation, repair, maintenance, cleaning, management and
protection of the Property, and its mechanical systems including, without
limitation, day and night supervisors, property manager, accountants,
bookkeepers, janitors, carpenters, engineers, mechanics, electricians and
plumbers and personnel engaged in supervision of any of the persons mentioned
above; provided that, if any such employee is also employed for other property
of Lessor, such compensation shall be suitably prorated among the Property and
such other properties.
2. The cost of services, utilities, materials and supplies furnished or
used in the operation, repair, maintenance, including without limitation fees,
if any, imposed upon Lessor, or charged to the Property, by the state or
municipality in which the Property is located on account of the need of the
Property for increased or augmented public safety services.
3. The cost of replacements for tools and other similar equipment used in
the repair, maintenance, cleaning and protection of the Property, provided that,
in the case of any such equipment used jointly on other properties, such costs
shall be suitably prorated among the Property and such other properties.
4. Where the Property is managed by Lessor or an affiliate of Lessor, a
sum equal to the amounts customarily charged by management firms in the
Boston/Brookline area for similar properties, but in no event more than four
percent (4%) of gross annual income, whether or not actually paid, or where
managed by other than Lessor or an affiliate thereof, the amounts charged for
management shall not exceed four percent (4%), together with, in either case,
reasonable amounts charged for legal and other professional fees relating to the
Property, but excluding such fees and commissions paid in connection with
negotiating, terminating, or renewing leases, licenses, occupancy agreements,
and service agreements, (ii) services rendered in connection with the appeal or
contest of any real estate taxes, (iii) services rendered in connection with
insurance or condemnation claims or adjustments, (iv) services rendered in
connection with any title claims or the granting of any easements, and (v)
administration and operation of the Premises.
5. Reasonable premiums for insurance against damage or loss to the
Property from such hazards as shall from time to time be required by mortgagees.
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6. If, during the Term of this Lease, Lessor shall make a capital
expenditure, the total cost of which is not properly includable in Operating
Expenses for the Operating Year in which it was made, there shall nevertheless
be included in such Operating Expenses for the Operating Year in which it was
made and in Operating Expenses for each succeeding Operating Year the annual
charge-off of such capital expenditure; and the useful life shall be determined
reasonably by Lessor in accordance with generally accepted accounting principles
and practices in effect at the time of making such expenditure. The amount
billed to LESSEE on account of capital expenditures in any Operating Year shall
not exceed $1,250.
7. Costs for electricity, water and sewer use charges, and other
utilities supplied to the Property and not paid for directly by Lessees.
8. Betterment assessments provided the same are apportioned equally over
the longest period permitted by law, and any other governmental charges or taxes
not included in Taxes, including linkage payments, if any.
9. Amounts paid to independent contractors for services, materials, and
supplies furnished for the operation, repair, maintenance, cleaning and
protection of the Property.
B. Operating Expenses shall not include the following:
1. Repairs or other work occasioned by fire, windstorm or other casualty
of an insurable nature or by the exercise of eminent domain.
2. Costs of leasing, including, without limitation, leasing commissions,
attorneys' fees, costs and disbursements, buy-outs, contributions, and other
expenses incurred in connection with negotiations with lessees, occupants, or
prospective lessees or occupants.
3. LESSOR'S cost of electricity and other services that are sold to
lessees and for which LESSOR is entitled to be reimbursed by lessees as an
additional charge or rental over and above the basic rent payable under the
lease with such lessees.
4. Depreciation.
5. Expenses in connection with services or other benefits of a type which
are not provided LESSEE but which are provided to another lessee or occupant.
6. Costs incurred due to violation by LESSOR or any lessee of the terms
and conditions of any lease.
7. Any costs, fines or penalties incurred due to violations by LESSOR of
any governmental law, rule or authority.
8. Costs associated with compliance with general building codes or laws
in effect prior to the execution of this Lease relating to the Building.
- 21 -
9. Costs which are reimbursed to LESSOR by insurance proceeds or any
other third party.
10. Costs covered by warranties or guaranties.
11. Advertising, marketing, and promotional expenses.
12. All legal fees and disbursements.
13. All financing costs, including points, commissions and legal fees and
disbursements; and all amortization and interest payments.
14. Rent under any ground, master or other superior lease.
15. Contributions to reserves.
16. If any service is provided by an affiliate or subsidiary of LESSOR or
the managing agent, the cost of such service shall not exceed the reasonable and
customary cost charged by an independent third party performing the same
services.
17. If any work is performed by a third party pursuant to a service
contract with LESSOR, and if the cost of such work, if performed by LESSOR,
would be excluded from Operating Expenses, then the cost of such work by the
third party shall also be excluded.
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EXHIBIT D
Demolition Plans & Specifications
DEMOLITION SPECIFICATIONS
DIVISION 1 - GENERAL REQUIREMENTS
A. The scope of demolition and site preparation work is as follows:
l. Remove existing partitions and incorporated work in project areas to limits
shown. Four (4) existing offices along St. ▇▇▇▇▇ Avenue to remain; the remaining
rooms to be removed.
2. Remove flooring throughout 5th floor space.
3. Retain existing suspended ceiling as shown in documents (approximately 50%
of space). Retain for muse all intact removed ceiling tiles.
B. The work shall be conducted in accordance with the latest rules and
regulations of the Commonwealth of Massachusetts an all local, codes as most
recently issued.
C. Contractor shall inspect site prior to beginning any work, and report to
Architect any adverse conditions before proceeding.
D. Contractor shall pay for and obtain all necessary permits and licenses for
work required herein, including certificate of occupancy. Provide copies of
these to the Tenant upon receipt.
E. Contractor shall follow manufacturer's instructions for all products and
assemblies either specified or generically described herein.
DIVISION 11 - SPECIALTIES/EQUIPMENT
A. Window Treatments: Existing building standard blinds to remain.
DIVISION 15 - MECHANICAL.
A. Bag all smoke detectors as required.
B. Tie back all duct distribution.
DIVISION - ELECTRICAL
A. Lighting: Retain existing building standard Eight fixtures for re-use.
B. Power Distribution: Existing panel in former computer room to remain.
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EXHIBIT D CONTINUED
[Picture]
Scope of Partition Removal
1st Marblehead Educational Resources
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇.
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EXHIBIT D CONTINUED
[Picture]
Scope of Ceiling Work
1st Marblehead Educational Resources
▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇.
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EXHIBIT E
Rules & Regulations
1. LESSOR may from time to time adopt appropriate systems and procedures
for the security or safety of the Building, any persons occupying, using or
entering the Building, or any equipment, furnishings, or contents of the
Building, and LESSEE will comply with LESSOR'S requirements relative to such
systems and procedures.
2. The sidewalks, halls, passages, exits, entrances, elevators, and
stairways of the Building will not be obstructed by any tenant or used for any
purpose other than for ingress to and egress from the Building. The halls,
passages, exits, entrances, elevators, escalators, and stairways are not for the
general public, and LESSOR will in all cases retain the right to control and
prevent access to such halls, passages, exits, entrances, elevators, and
stairways of all persons whose presence in the judgment of LESSOR would be
prejudicial to the safety, character, reputation, and interests of the Building
and its tenants, provided that nothing contained in these rules and regulations
will be construed to prevent such access to persons with whom any tenant
normally deals in the ordinary course of its business, unless such persons are
engaged in illegal activities. No lessee and no employee or invitee of any
tenant will go upon the roof of the Building except such roof or portion of such
roof as may be contiguous to a Premises of a particular tenant and may be
designated in writing by LESSOR as a roof deck or roof garden area. No tenant
will be permitted to place or install any object (including without limitation
radio and television antennas, loudspeakers, sound amplifiers, microwave dishes,
solar devices, or similar devices) on the exterior of the Building or on the
roof of the Building.
3. No sign, placard, picture, name advertisement, or written notice
visible from the exterior of LESSEE'S Premises will be inscribed, painted,
affixed, or otherwise displayed by LESSEE on any part of the Building or the
Premises without the prior written consent of LESSOR. LESSOR will adopt and
furnish to LESSEE general guidelines relating to signs inside the Building on
the office floors. LESSEE agrees to conform to such guidelines. All approved
signs or lettering on doors will be printed, painted, affixed, or inscribed at
the expense of the LESSEE by a person approved by LESSOR. Other than window
treatments expressly permitted by LESSOR and building standard window
treatments, material visible from outside the Building will not be permitted. In
the event of the violation of this rule by LESSEE, LESSOR may remove the
violating items without any liability, and may charge the expenses incurred by
such removal to the tenants or tenants violating this rules.
4. No cooking will be done or permitted by any LESSEE on the Premises,
except in areas of the Premises which are specially constructed for cooking and
except that use by LESSEE of microwave ovens and Underwriters' Laboratory
approved equipment for brewing coffee, tea, hot chocolate, and similar beverages
will be permitted, provided that such use is in accordance with all applicable
federal, state and city laws, codes, ordinances, rules and regulations.
5. No LESSEE will employ any person or persons other than the cleaning
service of LESSOR for the purpose of cleaning the Premises, unless otherwise
agreed to by LESSOR in
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writing. Except with the written consent of LESSOR, no person or persons other
than those approved by LESSOR will be permitted to enter the Building for the
purpose of cleaning it. No LESSEE will cause any unnecessary labor by reason of
such LESSEE'S carelessness or indifference in the preservation of good order and
cleanliness. Should LESSEE'S actions result in any increased expenses for any
required cleaning, LESSOR reserves the right to assess LESSEE for such expenses.
6. The toilet rooms, toilets, urinals, wash bowls and other plumbing
fixtures will not be used for any purposes other than those for which they were
constructed, and no sweepings, rubbish, rags, or other foreign substances will
be thrown in such plumbing fixtures. All damages resulting from any misuse of
the fixtures will be borne by the tenant who, or whose servants, employees,
agents, visitors, or licensees, caused the same.
7. No LESSEE, or LESSEE'S invitees or licensees, will in any way deface
any part of the Premises or the Building of which they form a part. In those
portions of the Premises where carpet has been provided directly or indirectly
by LESSOR, LESSEE will at its own expense install and maintain pads to protect
the carpet under all furniture having casters other than carpet casters.
8. No LESSEE will alter, change, replace, or rekey any lock or install a
new lock or a knocker on any door of the Premises. LESSOR, its agents, or
employees will retain a pass (master) key to all door locks on the Premises. Any
new door locks required by LESSEE or any change in keying of existing locks will
be installed or changed by LESSOR following tenant's written request to LESSOR
and will be at LESSEE'S expense. all new locks and rekeyed locks will remain
operable by LESSOR'S pass (master) key. LESSOR will furnish each tenant, free of
charge, with two (2) keys to each suite entry door lock on the Premises. LESSOR
will have the right to collect a reasonable charge for additional keys and cards
requested by any tenant. Each tenant, upon termination of its tenancy, will
deliver to LESSOR all keys and access cards for the Premises and Building that
have been furnished to such tenant.
9. The elevator designated for freight by LESSOR will be available for
use by all tenants in the Building during the hours and pursuant to such
procedures as LESSOR may determine from time to time. The persons employed to
move LESSEE'S equipment, material, furniture, or other property in or out of the
Building must be acceptable to LESSOR. The moving company must be a locally
recognized professional mover, whose primary business is performing of
relocation services, and must be bonded and fully insured. A certificate or
other verification of such insurance must be received and approved by LESSOR
prior to the start of any moving operations. Insurance must be sufficient, in
LESSOR'S sole opinion, to cover all personal liability, theft or damage to the
Project, including but not limited to floor coverings, doors, walls, elevators,
stairs, foliage, and landscaping. Special care must be taken to prevent damage
to foliage and landscaping during adverse weather. All moving operations will be
conducted at such times and in such a manner as LESSOR will direct, and all
moving will take place during non-Business Hours unless LESSOR agrees in writing
otherwise. LESSEE will be responsible for the provision of building security
during all moving operations, and will be liable for all losses and damages
sustained by any party as a result of the failure to supply adequate
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security. LESSOR will have the right to prescribe the weight, size, and position
of all equipment, materials, furniture, or other property brought into the
Building. Heavy objects will, if considered necessary by LESSOR, stand on wood
strips of such thickness as is necessary to properly distribute the weight.
LESSOR will not be responsible for loss of or damage to any such property from
any cause, and all damage done to the building by moving or maintaining such
property will be repaired at the expense of LESSEE. LESSOR reserves the right to
inspect all such property to be brought into the building and to exclude from
the Building all such property which violates any of these rules and regulations
or the Lease of which these rules and regulations are a part. Supplies, goods,
materials, packages, furniture, and all other items of every kind delivered to
or taken from the Premises will be delivered or removed through the entrance and
route designated by LESSOR, and LESSOR will not be responsible for the loss or
damage of any such property.
10. No lessee will use or keep in the Premises or the building any
kerosene, gasoline, or inflammable or combustible or explosive fluid or material
or chemical substance other than limited quantities of such materials or
substances reasonably necessary for the operation or maintenance of office
equipment or limited quantities of cleaning fluids and solvents required in
lessee's normal operations in the Premises, which shall be stored in accordance
with applicable law. Without LESSOR'S prior written approval, no lessee will use
any method of heating or air conditioning other than that supplied by LESSOR. No
lessee will use or keep or permit to be used or kept any foul or noxious gas or
substance in the Premises.
11. Lessees shall not , prior to or during the Term, either directly or
indirectly, employ or permit the employment of any contractor, mover, mechanic
or laborer, or permit any materials in the Premises, if the use of such
contractor, mover, mechanic or laborer or such materials would, in LESSOR'S
opinion, create any difficulty, strike or jurisdictional dispute with other
contractors, movers, mechanics or laborers engaged by LESSOR, lessee, or others,
or would in any way disturb the construction, maintenance, cleaning, repair,
management, security or operation of the Building, Project or any part thereof.
Any lessee, upon demand by LESSOR, shall cause all contractors, movers,
mechanics, laborers or materials causing such interference, difficulty or
conflict to leave or be removed from the Project immediately.
12. LESSOR will have the right to prohibit any advertising by LESSEE
mentioning the Building, that in LESSOR'S reasonable opinion, tends to impair
the reputation of the Building or its desirability as a building for offices,
and upon written notice from LESSOR, LESSEE will refrain from or discontinue
such advertising.
13. LESSEE will not bring any animals (except "Seeing Eye" dogs) or birds
into the building, and will not permit bicycles or other vehicles inside or on
the sidewalks outside the Building except in areas designated from time to time
by LESSOR for such purposes.
14. All persons entering or leaving the building between the hours of
6 p.m. and 8 a.m. Monday through Friday, and at all hours on Saturdays, Sundays,
and holidays will comply with such off-hour regulations as LESSOR may establish
and modify from time to time. LESSOR reserves the right to limit reasonably or
restrict access to the Building during such time periods.
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15. Each lessee will store all its trash and garbage within its Premises.
No material will be placed in the trash boxes or receptacles if such material is
of such nature that it may not be disposed of in the ordinary and customary
manner of removing and disposing of trash and garbage without being in violation
of any law or ordinance governing such disposal. All garbage and refuse disposal
will be made only through entryways and elevators provided for such purposes and
at such times as LESSOR designates. Removal of any furniture or furnishings,
large equipment, packing crates, packing materials, and boxes will be the
responsibility of each lessee and such items may not be disposed of in the
Buildings trash receptacles nor will they be removed by the Building's
janitorial service, except at LESSOR'S sole option and at the lessee's expense.
No furniture, appliances, equipment, or flammable products of any type may be
disposed of in the Building trash receptacles.
16. Canvassing, peddling, soliciting, and distributing handbills or any
other written materials in the Building are prohibited, and each lessee will
cooperate to prevent the same.
17. The requirements of the lessee's will be attended to only upon
application by written, personal, or telephone notice at the office of the
Building. Employees of LESSOR or LESSOR'S agent will not perform any work or do
anything outside of their regular duties unless under special instructions from
LESSOR.
18. A directory of the Building will be provided for the display of the
name and location of tenants only. All entries on the Building directory display
will conform to standards and style set by LESSOR in its sole discretion. Space
on any exterior signage will be provided in LESSOR'S sole discretion. No lessee
will have any right to the use of any exterior sign.
19. LESSEE will see that the doors of the Premises are closed and locked
and that all water faucets, water apparatus, and utilities are shut off before
LESSEE or LESSEE'S employees leave the Premises, so as to prevent waste or
damage, and for any failure to comply or carelessness in this regard LESSEE will
make good all injuries sustained by other tenants or occupants of the Building
or LESSOR. On multiple-tenancy floors, all lessee's will keep the doors to the
Building corridors closed at all times except for ingress or egress.
20. LESSEE will not conduct itself in any manner that is inconsistent with
the character of the building as a first quality building or that will impair
the comfort and convenience of other tenants in the Building.
21. No act or thing done or omitted to be done by LESSOR or LESSOR'S agent
during the term of the Lease in connection with the enforcement of these rules
and regulations will constitute an eviction by LESSOR of any lessee nor will it
be deemed an acceptance of surrender of the Premises by any lessee, and no
agreement to accept such termination or surrender will be valid unless in a
writing signed by LESSOR. The delivery of keys to any employee or agent of
LESSOR will not operate as a termination of the Lease or a surrender of the
Premises unless such delivery of keys is done in connection with a written
instrument executed by LESSOR approving the termination or surrender.
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22. In these rules and regulations, the term "lessee" includes the
employees, agents, invitees, and licensees of LESSEE and others permitted by
LESSEE to use or occupy the Premises.
23. LESSOR may waive any one or more of these rules and regulations for
the benefit of any particular lessee or lessees, but no such waiver by LESSOR
will be construed as a waiver of such rules and regulations in favor of any
other lessee or lessees, nor prevent LESSOR from enforcing any such rules and
regulations against any or all of the lessees of the Building after such waiver.
24. These rules and regulations are in addition to, and will not be
construed to modify or amend, in whole or in part, the terms, covenants,
agreements, and conditions of the Lease.
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EXHIBIT F
Cleaning Specifications
Provide services five nights a week, Monday through Friday between the hours of
5 p.m. & 10 p.m.
MAIN LOBBY(S):
DAILY:
Sweep and wash flooring. Lobby floor to be maintained in accordance with Capital
Properties, Inc. specifications.
All ash urns to be emptied, black matter to be replaced as necessary. All
elevator doors to be wiped down and polished every night. Lobby wall to be
dusted within hand reach.
All glass including doors, both sides, windows within reach of cleaner and floor
directories to be cleaned and polished.
Smudges and fingerprints to be wiped from walls, switchplates, doors, counters,
elevator call buttons and elsewhere as needed.
All planters to be polished and arranged property on floor.
All brass surfaces to be wiped down.
Wash all rubber mats.
MONTHLY:
All resilient tile floors in public areas to be treated equivalent to spray
buffing. (Medford)
QUARTERLY:
Dusting of high-hats and diffusers
Maintenance of lobby floors in accordance of Capital Properties specifications.
ELEVATORS:
DAILY:
All wall surfaces to be cleaned and polished every night. All door tracts to be
vacuumed and polished.
WEEKLY:
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Stainless steel ceiling panels to be cleaned and polished.
GENERAL AND PRIVATE OFFICES, RECEPTION AREA, CONFERENCE ROOMS, HALLWAYS,
STAIRWELLS, ETC.:
NIGHTLY:
Empty all wastebaskets, replace liners. Liners to be supplied by Capital
Properties.
Empty all ashtrays, damp wipe and polish.
Dust all desks, chairs, tables, office furniture and equipment, window ▇▇▇▇▇,
ledges, horizontal surfaces, etc.
Wash and sanitize sides and tops of all water coolers.
Hand dust all grill work within normal reach.
Remove all fingermarks from private entrance doors, light switches and doorways.
Spot clean walls around light switches, door jambs, etc.
Wipe clean all brass and other bright work.
Spot clean all glass partitions. (both sides)
Remove and dust under all desk equipment and telephone and replace same.
THOROUGHLY vacuum all carpeting.
Dry mop V.C.T. flooring. Damp mop spillage on V.C.T. flooring.
WEEKLY:
Damp mop and spray buff V.C.T. flooring.
Dust coat racks, and the like.
Wash both sides of all glass partitions.
Remove and dust under all desk equipment and telephone and replace same.
QUARTERLY:
Render high dusting not reached in daily cleaning to include.
SEMI-ANNUALLY:
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Dust diffusers, ceiling corners and high dusting above 72"
ANNUALLY:
Machine strip and refinish V.C.T. flooring.
B. RESTROOMS:
NIGHTLY:
Clean all bowl faces.
Clean and sanitize all toilets and urinals.
Clean all bright work.
Clean mirrors.
Wash both sides of all toilet seats.
Empty ashtrays and clean inside and outside.
Empty waste receptacles, clean outside and replace plastic liners. Liners
furnished by Capital Properties, Inc.
Empty sanitary napkin disposal units.
Replace expendable items (hand towels, toilet tissue, hand soap). Products
furnished by Capital Properties, Inc.
Spot clean partitions, walls and entry doors.
Sweep and wash (with a disinfectant cleaner) bathroom floors.
WEEKLY:
Clean showers. (If any)
MONTHLY:
Remove cobwebs from ceilings and corners.
Clean diffusers.
Dust above 72".
Wash partitions and walls.
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MONTHLY:
Machine scrub lavatory floors.
SEMI-ANNUALLY:
Machine scrub and refinish (using a water sealer).
CAFETERIA/KITCHEN:
NIGHTLY:
Empty all waste containers, clean exteriors and replace liners. Liners supplied
by Capital Properties, Inc.
Wash and sanitize table tops and counters.
Clean kitchen sink.
Damp mop and spray buff V.C.T. flooring.
MONTHLY:
Spray buff all hard surface floor area.
ANNUALLY:
Machine strip and refinish all V.C.T. flooring.
GENERAL:
NIGHTLY:
Remove all trash to designated area in accordance with any recycling programs
that may be in effect.
Clean janitor closets at end of shift, leave all equipment neat and orderly.
Maintain daily log.
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