EXHIBIT 10.33
STANDARD FORM COMMERCIAL LEASE
THIS INSTRUMENT IS A LEASE, dated as of October 18, 2002, 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 The following set forth basic data and,
PROVISIONS: 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: $1,831,375/year
$152,614.58/month $40.25/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 45,500
square feet located on the sixth floor of the
Building.
Permitted Uses: General Office, call center,
and related uses.
Escalation Factor: 10.21%, as computed in
accordance with the Escalation Factor
Computation.
Initial Term: Five (5) years commencing on
the Commencement Date and expiring at the close
of the day immediately preceding the fifth
anniversary of the Commencement 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 in which
such anniversary shall fall.
Security Deposit: Outlined in Section 5 of
this Lease
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, 2004 and ending June 30, 2005.
Electricity Cost: LESSEE shall pay for all
usage directly to the local provider for the
Building. LESSOR represents to Tenant that there
is a separate, direct meter that
measures electricity for only the sixth floor of
the building.
Broker: ▇▇▇▇▇▇▇▇ & Grew. LESSOR shall pay
50% of the brokerage commission upon lease
execution and 50% upon the Commencement Date of
this Lease.
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
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: April 1, 2004
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 Term: As defined in Section 35
First Offered Space: As defined in Section
36.
2. PREMISES A portion of the building owned by LESSOR
consisting of approximately 45,500 SQUARE FEET OF
RENTABLE AREA ON THE SIXTH FLOOR OF THE BUILDING
AND SUBSTANTIALLY KNOWN AS SUITE 601 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 five
(5) years commencing on April 1, 2004 and ending
on March 31, 2009.
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.
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5. SECURITY DEPOSIT LESSEE shall pay to LESSOR a Security Deposit
equal to an amount determined in accordance with
the provisions of this Section 5. The Security
Deposit may in cash or Letter of Credit. LESSEE
may pay the Security Deposit in Cash or by means
of a letter of credit. If LESSEE pays the
Security Deposit in cash, the Security Deposit
shall be maintained in said amount and held
without interest. If a Letter of Credit, such
Letter of Credit shall be self renewing for the
entire Term of the Lease (as the same may be
extended) and in a form acceptable to LESSOR. If,
for any reason, the Letter of Credit shall expire
or be terminated for any reason, such Letter of
Credit shall be renewed or replaced thirty (30)
days prior to such expiration or termination. Or,
at any time during that thirty day period, LESSOR
may draw the entire amount and such amount shall
be returned to LESSEE only after a replacement
Letter of Credit has been delivered to LESSOR.
LESSEE shall have the right to substitute cash
for the letter of credit, or a letter of credit
for cash, whichever the case may be, at any time,
and from time to time; during the Term provided
LESSEE is not in default of this Lease beyond
applicable notice and cure periods. The Security
Deposit shall be held as security for LESSEE'S
performance provided in this Lease and shall be
and refunded or returned to LESSEE at the end of
this lease subject to LESSEE'S satisfactory
compliance with the conditions of this Lease.
The Security Deposit required under this Lease is
as follows:
1. Upon execution of this Lease, LESSEE shall
remit to LESSOR a Security Deposit equal to
$113,750 (50% of brokerage fee paid by
LESSOR).
2. As and when LESSOR disburses the Allowance
as defined in Section 26 of this Lease,
LESSEE shall increase the Security Deposit
by an amount equal to the disbursement.
3. On December 1, 2003, LESSEE shall increase
the Security Deposit by an amount equal to
the amount by which the Base Security
Deposit (as defined herein) exceeds the
amount previously provided by LESSEE
pursuant to clauses 1 and 2 above. For the.
purposes of this Lease, the "Base Security
Deposit" shall be equal to six (6) months
Base Rent totaling $915,688 subject,
however, to adjustment pursuant to the
provisions of the next succeeding sentence.
LESSEE agrees to deliver to LESSOR a copy of
its audited financial statements for the
fiscal year as of June 30, 2003 within
thirty (30) days after the same is prepared
and delivered to LESSEE, but in no event
later than December 1, 2003. The Base
Security Deposit shall be adjusted as of
December 1, 2003 as follows:
a) If, as shown on the audited financial
statements, LESSEE'S gross revenue
totals at least $15,000,000 and income
before tax expense totals at least
$5,000,000, then the Base Security
Deposit shall be reduced to an amount
equal to three (3) months Base Rent.
b) If, as shown on the audited financial
statements, LESSEE's gross revenue
totals less than $5,000,000 or income
before tax expense is less than
$1,000,000, the Base Security Deposit
shall be increased to an amount equal
to twelve (12) months Base Rent.
4. As further evidence of LESSEE'S financial
capability, LESSEE shall provide to LESSOR,
on December 1, 2003, and each anniversary of
said date, a certificate signed by an
authorized officer of The Education
Resources Institute, Inc. ("▇▇▇▇"),
indicating that the Master Service Agreement
between ▇▇▇▇ and LESSEE'S affiliate, First
Marblehead Education Resources, Inc., dated
July 1, 2001, remains in full force and
effect. In the event that LESSEE fails to
produce
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such a certificate and the failure is not
cured within fifteen (15) days after written
demand from LESSOR, then the Base Security
Deposit shall be increased to an amount
equal to twelve (12) months Base Rent.
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 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
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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, as they become due, all
bills for electricity and other utilities that
are furnished to the Premises and presently
separately metered. The LESSOR agrees (i) to
provide 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
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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 The LESSEE agrees to use the Premises in a manner
PREMISES 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 The LESSEE acknowledges that no trade or
WITH LAWS 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 1A 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 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,
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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 The LESSEE agrees to maintain the Premises, in
OBLIGATIONS 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.
▇. ▇▇▇▇▇▇'▇ 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.
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12. ADDITIONS & The LESSEE shall not make structural alterations
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 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 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.
13. ASSIGNMENT& The LESSEE shall not assign or sublet the whole
SUBLEASING 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
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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 Premises 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.
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 (collectively, a
"Mortgage"), 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 such Mortgage
provided LESSOR has obtained and delivered to
LESSEE the written agreement of the holder of
such Mortgage, in a form reasonably satisfactory
to LESSEE, which provides that so long as LESSEE
is not in default under this Lease (after the
giving of any applicable notice and the
expiration of any applicable cure period), (i)
this Lease and LESSEE'S rights hereunder shall
not be disturbed or interrupted in the event of
the exercise of any of such holder's rights under
said Mortgage, including any foreclosure or sale
of the Building, and (ii) LESSEE shall not be
made party to any action or proceeding to enforce
any rights or remedies thereunder brought by said
holder, unless required by law, in which event no
affirmative relief shall be sought against LESSEE
in such action or proceeding. In the event there
is any Mortgage as of the date of this Lease,
LESSOR agrees to obtain the aforesaid
non-disturbance agreement from the holder thereof
within ninety (90) days receipt of LESSEE'S
written request for said agreement.
LESSOR hereby represents to LESSEE that there is
no ground lease or master lease affecting the
Property or the Building as of the date of this
Lease.
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
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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 LESSEE shall save LESSOR harmless, and shall
AND LIABILITY exonerate and indemnify LESSOR, 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
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
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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.
18. FIRE, CASUALTY, Should a substantial portion of the Premises, or
EMINENT of the property of which they are a part, be
DOMAIN 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 A. In the event that:
BANKRUPTCY
(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
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(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
(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
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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 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 ox 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
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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 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 The LESSOR is not personally liable under this
LIABILITY 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 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
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the Lease.
26. CONDITION AND Except as otherwise provided in this Section, the
AREA 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 and
LESSOR's receipt of a) contractor invoice(s) with
proof of payment, and b) the appropriate release
of lien(s), LESSOR shall provide LESSEE with a
sum equal to $273,000 (the "Allowance") towards
LESSEE'S improvements to the Premises. LESSEE has
submitted to LESSOR and LESSOR has approved in
writing the plans from ▇▇▇▇▇▇▇ ▇▇▇▇▇ dated August
26, 2002. LESSEE shall submit to LESSOR for
reimbursement a written request for payment on
account of the Allowance. Accompanying the
request shall be a copy of all the appropriate
lien releases from the contractor. LESSOR shall
reimburse LESSOR for the construction cost in an
amount not to exceed the Allowance within thirty
(30) days after receipt of LESSEE'S written
request.
27. LESSOR'S LESSOR warrants and represents that it is the
WARRANTY 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 This Lease shall be governed exclusively by the
LAW 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.
33. ENTIRE This Lease and the Exhibits made a part hereof
AGREEMENT 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
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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 & LESSEE, its employees, agents, licensees, and
REGULATIONS 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 Provided that at the time of such exercise (i)
EXTEND 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 one (1) extended term of
five (5) 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 six (6) 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. 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
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
- 16 -
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.
36. RIGHT OF FIRST If at any time during the Term of this Lease,
OFFER LESSOR shall desire to lease any space consisting
on 10,000 square feet or larger located on the
fifth or seventh floors of the Building, (the
"First Offer Space") after any pre-existing
rights, LESSOR shall notify LESSEE and set forth
the terms and conditions on which LESSOR is
willing to lease the First Offer Space,
including, without limitation, rent, term,
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 beyond applicable notice and
cure periods and (ii) this Lease is then if full
force and effect, LESSEE may, by giving notice in
writing to LESSOR within seven (7) Business Days
after receipt of LESSOR'S notice, elect to lease
the First Offer 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 (10) day period, LESSEE shall have no
further rights under this section with respect to
the First Offer Space and LESSOR shall be free to
lease any or all of such space to other parties.
Notwithstanding anything to the contrary
contained in this Section 36, LESSOR acknowledges
and agrees that LESSEE'S right of first offer
shall continue to exist during the entire Term of
this Lease, and that LESSEE'S failure to exercise
such right with respect to any First Offer Space
shall not affect LESSEE'S right to exercise such
right with respect to any subsequent First Offer
Space. LESSEE'S failure to exercise said right
with respect to any First Offer Space shall not
be deemed to extinguish said right with respect
to any other First Offer Space.
37. MISCELLANEOUS LESSEE shall have the exclusive use of the
Caterpillar model SR-4 emergency generator and
related equipment (collectively, the "Emergency
Generator") located in storage room B-24 in the
basement of the Building. LESSOR and LESSEE
acknowledge that the Emergency Generator is being
leased to LESSEE in "as is" condition. In
exchange for the exclusive use of the Emergency
Generator, shall pay to LESSOR a monthly fee (the
"Emergency Generator Fee") in the amount of
$167.00 during the Initial Term and any Extended
Terms of this Lease. LESSEE shall at all times
maintain a preventative maintenance contract for
the Emergency Generator.
LESSEE shall maintain at LESSEE'S sole cost and
expense a preventative maintenance program for
the specialty heat pump units located in the
Premises as well as the associated rooftop
equipment that services LESSEE'S server rooms.
IN WITNESS WHEREOF, the said parties hereunto 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/ ▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------- ------------------------------------------
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EXHIBIT A
Premises
[Picture]
Sixth 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.
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.
- 20 -
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.
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
Plans & Specifications
Intentionally deleted.
- 22 -
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, finishings, 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 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.
- 23 -
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 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.
- 24 -
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.
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 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.
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.
- 25 -
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.
- 26 -
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:
Stainless steel ceiling panels to be cleaned and polished.
GENERAL AND PRIVATE OFFICES, RECEPTION AREA, CONFERENCE ROOMS,
HALLWAYS, STAIRWELLS, ETC.:
NIGHTLY:
- 27 -
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:
Dust diffusers, ceiling comers 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.
- 28 -
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
finished 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.
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.
- 29 -
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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