EXHIBIT 10.35
AMENDMENT OF SUBLEASE
THIS AMENDMENT OF SUBLEASE (hereinafter referred to as the "Amendment")
made as of the 12th day of July, 2002, between Metropolitan Life Insurance
Company, a New York corporation, hereinafter referred to as the "Sublessor," and
The First Marblehead Corporation, a Delaware corporation, hereinafter referred
to as the "Sublessee".
WITNESSETH, THAT:
WHEREAS, Sublessor and Sublessee entered into that certain sublease
agreement (hereinafter referred to as the "Original Sublease") dated as of
March 29, 2002, pursuant to which Sublessor leased to Sublessee certain office
space containing approximately 22,500 rentable square feet (hereinafter referred
to as the "Original Subleased Premises") on the 6th Floor of the building
located at 00 Xxxxx Xxxxx Xxxxxx, Xxxxxx, XX (hereinafter referred to as the
"Building"), for a term ending March 30, 2004, at an annual rent as therein
provided; and
WHEREAS it is the intention of the parties to modify and amend the Original
Sublease.
NOW THEREFORE, for and in consideration of the sum of one dollar ($1.00)
paid by each of the parties hereto to the other, and in further consideration of
the mutual covenants and promises herein contained, the sufficiency and receipt
of which is hereby acknowledged by each of the parties hereto, the parties agree
as follows:
1. All capitalized terms used herein shall have the same meaning ascribed
to them in the Original Sublease, unless otherwise indicated. For the purposes
of this Amendment, the term "Sublease" shall mean the Original Sublease, as
amended by this Amendment.
2. (a) Sublessor hereby subleases to Sublessee and Sublessee hereby
subleases from Sublessor the Expansion Space (as herein defined) upon the terms,
covenants and conditions of the Sublease. For the purposes of this Amendment,
the term "Expansion Space" shall mean the office space and telephone switch room
on the 6th Floor of the Building, containing approximately 22,500 rentable
square feet; the location of the Expansion Space is cross-hatched on Schedule I
attached hereto and made a part hereof.
(b) The term of this Amendment shall commence on the later to occur
of June 1, 2002 and the date Prime Lessor gives its written consent to this
Amendment (said later date being hereinafter referred to as the "Effective
Date") and shall expire on March 30, 2004, unless sooner terminated pursuant to
the terms of the Lease, the Sublease, or any provision of applicable law. From
and after the Effective Date, the term "Subleased Premises", as used in the
Sublease, shall mean the Original Subleased Premises and the Expansion Space.
(c) This Amendment shall be contingent upon Sublessor obtaining the
written consent of Prime Lessor. Such consent shall be evidenced by Prime
Lessor's
execution hereof or by other appropriate written evidence. Such consent shall
specifically extend to the provisions of Section 10 hereof. If such consent is
denied, this Amendment shall be automatically deemed terminated. If such consent
is not received on or before July 31, 2002, either Sublessor or Sublessee may
terminate this Amendment on thirty (30) days written notice to the other, and
this Amendment shall terminate at the end of such thirty (30) day notice period,
unless the consent is received on or before the end of such thirty (30) day
notice period. Sublessor and Sublessee shall cooperate and act in good faith to
obtain such consent.
3. (a) For the period from the Effective Date to and including
September 30, 2002, Sublessee shall not be required to pay any rent to Sublessor
in connection with the Expansion Space other than the rent for the Furnishings
(as defined in Section 4), as set forth in Section 4.
(a) Beginning on October 1, 2002, Sublessee covenants and agrees to
pay to Sublessor rent for the Expansion Space in the amount of Five Hundred
Forty Thousand Dollars per annum ($540,000.00) in monthly installments of
Forty-Five Thousand Dollars ($45,000.00). From and after October 1, 2002, the
term "Monthly Base Rent", as used in the Sublease, shall mean Ninety Thousand
Dollars ($90,000.00) per month.
4. Sublessee accepts the Expansion Space in its "as-is" "where-is"
condition and acknowledges that no representation with respect to the condition
thereof has been made, provided, however, Sublessor shall deliver the Expansion
Space in broom clean condition, free of all debris and personal property other
than the Furnishings. Sublessor has no responsibility for improving the
Expansion Space, performing any work, furnishing any materials or providing any
monetary allowances. The parties hereto acknowledge and agree that Section 6 of
Exhibit C of the Sublease applies only to the Original Subleased Premises and
not to the Expansion Space.
Sublessor shall deliver the Expansion Space to Sublessee with the furniture
fixtures and equipment described in Exhibit B, attached hereto and made a part
hereof, located therein (collectively, the "Furnishings"). Within forty-five
(45) days after the Effective Date, Sublessee shall designate the items on
Exhibit B that it does not desire to retain and Sublessor shall promptly remove
the same from the Expansion Space. Sublessee accepts the Furnishings in their
then "as-is", "where-is" condition and WITHOUT ANY REPRESENTATIONS OR
WARRANTIES. Sublessee has inspected the Furnishings and agrees that same are in
a condition satisfactory to Sublessee. On and from the Effective Date through
March 30, 2004, Sublessee agrees to pay to Sublessor, as additional rent for the
use of the Furnishings, a monthly charge equal to $2,531.25 per month. In the
event Sublessee notifies Sublessor to remove greater than 65% of "workstations"
from Premises, monthly charge shall be reduced to $1,875.00 per month. Sublessee
further agrees to pay any sales, use, personal property or similar tax (together
with any related interest and penalties) imposed upon the Furnishings or the
transfer and/or use thereof by Sublessee (and the foregoing obligation shall
expressly survive the termination of the Sublease, as amended by this
Amendment). Upon the expiration of the term, Sublessee shall remove the
Furnishings from the Expansion Space and same shall be deemed the property of
Sublessee. If the Sublease, as amended by this Amendment, shall expire by
reason of default by Sublessee, the Furnishings shall not be removed from the
Expansion Space and shall be returned to Sublessor in the Expansion Space at the
termination of the Sublease, as amended by this Amendment; provided that if such
expiration by default shall occur on or after the 1st anniversary of the
Sublease, as amended by this Amendment, Sublessee may elect, within ten (10)
days following the date of such expiration and its sole discretion, to pay to
Sublessor the present value of the above-described payments for the then
remaining period of the Sublease, as amended by this Amendment, whereupon the
Furnishings shall be the property of Sublessee.
5. As of the Effective Date, Section 4 and Section 5 of Exhibit C of the
Sublease are hereby deleted.
6. On and from the Effective Date, Sublessee shall be responsible for
contracting directly with the utility companies, and paying all bills, for
electricity and other utilities furnished to the Subleased Premises and
presently separately metered. As of the Effective Date, Section 3 of Exhibit C
of the Sublease is deleted.
7. As of the Effective Date, the Security required under Article 10 of
the Sublease shall be deemed increased to $112,500.00 and Sublessee shall
deposit with Sublessor an additional $56,250.00. If Sublessee has exercised its
right under Art6icle 10 to deliver the Letter of Credit in lieu of cash, then
Sublessee shall have fifteen (15) business days after the Effective Date to
deliver to Sublessor a replacement Letter of Credit in the face amount of
$112,500.00 or other documentation evidencing the increase in the face amount of
the existing Letter of Credit from $56,250.00 to $112,500.00. The provisions of
Article 10 of the Sublease shall apply to the replacement Letter of Credit.
8. Sublessee acknowledges that as of the date hereof Sublessor is not in
default under any of the terms of the Sublease. Sublessor represents to the best
of its knowledge that it is not in default under the Lease as of the date
hereof.
9. In connection with this Amendment, Sublessee acknowledges that it has
not used the services of any real estate broker, agent or finder other than the
Brokers, Sublessee agrees to indemnify, defend, pay on behalf of and hold
harmless Sublessor and its officers, directors, invitees and agents, employees
and servants from and against any loss, damage, liability, costs, claim or
expenses (including, without limitation, reasonable attorney's fees) arising
from or in connection with any claim by any broker, agent or finder, other than
the Broker, for fees or commissions. Sublessor agrees to pay the fees and/or
commissions due the Brokers pursuant to a separate agreement. The provisions of
this Section 9 shall survive the termination of the Sublease, as amended by this
Amendment.
10. Section 11(f) of the Original Sublease is amended by inserting after
the words "XXXX Marketing Services, Inc." the words ", and may, without the
consent of Sublessor, sublet approximately 5,000 square feet of the Subleased
Premises to The Education Resources Institute, Inc., a non-affiliated entity,".
The Prime Lessor consent referred to in Section 2(c) above shall not be
effective unless it specifically refers and consents to the foregoing amendment.
11. Except as herein and hereby extended, modified and amended, the
Original Sublease shall remain in full force and effect and all of the executory
terms, provisions, covenants and conditions thereof are hereby ratified and
confirmed. In the event of any conflict between the Original Sublease and this
Amendment, this Amendment shall control.
12. The persons executing this Amendment on behalf of the respective
parties represent that such entities have duly authorized this Amendment and
that the persons executing this Amendment on behalf of such entities are duly
authorized to sign and execute this Amendment.
IN WITNESS WHEREOF, Sublessor and Sublessee have executed this Amendment of
Sublease as of the day and year first written above.
WITNESSES SUBLESSOR:
Metropolitan Life Insurance Company
/s/ Xxxxxx Xxxx By /s/ Xxxxx X. Xxxxxxxxxxx
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Name Xxxxx X. Xxxxxxxxxxx
Title: Assistant Vice President
SUBLESSEE:
The First Marblehead Corporation
By /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: President
LESSOR CONSENT TO AMENDMENT OF SUBLEASE AND SUPPLEMENT
For $1.00 and other good and valuable consideration, the undersigned, OMV
Associates Limited Partnership, as Lessor (the "Lessor" under a certain Lease
dated January 29, 1999, (the "Lease") with Metropolitan Life Insurance Company
successor in interest to New England Life Insurance Company, as Lessee (the
"Lessee"), with respect to the Premises consisting of approximately 45,500
square feet of office space located at Sauite 601, 00 Xx. Xxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx (the "Leased Premises") hereby consents, pursuant to Paragraph 13
of the Lease, to the Amendment of Sublease and the Supplement to Sublease
Amendment both dated July 12, 2002 by Lessee to The First Marblehead
Corporation, as subtenant (the "Subtenant"), provided that Lessee shall remain
liable to Lessor for the payment of all rent under the Lease and for the full
performance of the covenants and conditions of the Lease.
LESSOR: OMV Associates Limited
Partnership
BY: Park Square Corporation - its
General Partner
By: Xxxxxxx X. Xxxxx - its President
/s/ Xxxxxxx X. Xxxxx
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