RIDER ONE RULES (1) Except as otherwise expressly set forth in the Lease, no sign, placard, picture, advertisement, name or notice shall be inscribed, displayed or printed or affixed on or to any part of the outside or inside of the Building or any...
RIDER ONE
RULES
(1) Except as otherwise expressly set forth in the Lease, no sign, placard, picture,
advertisement, name or notice shall be inscribed, displayed or printed or affixed on or to any part of the
outside or inside of the Building or any part of the Premises visible from the exterior of the Premises
without the prior written consent of Landlord, which consent may be withheld in Landlord’s sole
discretion. Landlord shall have the right to remove, at Tenant's expense and without notice to Tenant, any
such sign, placard, picture, advertisement, name or notice that has not been approved by Landlord. All
approved signs or lettering on doors and walls shall be printed, painted, affixed or inscribed at the
expense of Tenant by a person approved of by Landlord. If Landlord notifies Tenant in writing that
Landlord objects to any curtains, blinds, shades or screens attached to or hung in or used in connection
with any window or door of the Premises, such use of such curtains, blinds, shades or screens shall be
promptly removed by Tenant. No awning shall be permitted on any part of the Premises.
(2) No ice, drinking water, towel, or other similar services shall be provided to the Premises,
except from persons authorized by Landlord and at the hours and under regulations fixed by Landlord.
(3) The bulletin board or directory of the Building will be provided exclusively for the
display of the name and location of tenants only and Landlord reserves the right to exclude any other
names therefrom.
(4) The sidewalks, halls, passages, exits, entrances, elevators and stairways shall not be
obstructed or used by Tenant for any purpose other than for ingress to and egress from its Premises. The
halls, passages, exits, entrances, elevators, stairways, balconies and roof are not for the use of the general
public and Landlord shall in all cases retain the right to control and prevent access thereto by all persons
whose presence in the judgment of Landlord shall be prejudicial to the safety, character, reputation and
interests of the Building and its tenants. No tenant and no employees or invitees of any tenant shall go
upon the roof of the Building.
(5) Tenant shall not alter any lock or install any new or additional locks or any bolts on any
interior or exterior door of the Premises without the prior written consent of Landlord.
(6) The toilet rooms, toilets, urinals, wash bowls and other apparatus shall not be used for
any purpose other than that for which they were constructed and no foreign substance of any kind
whatsoever shall be thrown therein and the expense of any breakage, stoppage or damage resulting from
the violation of this rule shall be borne by the tenant who, or whose employees or invitees, shall have
caused it.
(7) Tenant shall not overload the floor of the Premises or mark, drive nails, screw or drill into
the partitions, woodwork or plaster or in any way deface the Premises or any part thereof (except as
needed for approved Alterations). Landlord will provide Tenant, upon request, with floor load
specifications for the Premises.
(8) No furniture, freight or equipment of any kind shall be brought into the Building without
the consent of Landlord and all moving of the same into or out of the Building shall be done at such time
and in such manner as Landlord shall designate. Landlord shall have the right to prescribe the weight, size
and position of all safes and other heavy equipment brought into the Building and also the times and
manner of moving the same in and out of the Building. Safes or other heavy objects shall, if considered
necessary by Landlord, stand on a platform of such thickness as is necessary to properly distribute the
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weight. Landlord will not be responsible for loss of or damage to any such safe or property from any
cause, and all damage done to the Building by moving or maintaining any such safe or other property
shall be repaired at the expense of Tenant. The elevator designated for freight by Landlord shall be
available for use by all tenants in the Building during the hours and pursuant to such procedures as
Landlord may determine from time to time. The persons employed to move Tenant's equipment, material,
furniture or other property in or out of the Building must be acceptable to Landlord. The moving company
must be a locally recognized professional mover, whose primary business is the performing of relocation
services, and must be fully insured. In no event shall Tenant employ any person or company whose
presence may give rise to a labor or other disturbance at the Property. A certificate or other verification of
such insurance must be received and approved by Landlord prior to the start of any moving operations.
Insurance must be sufficient in Landlord's sole opinion, to cover all personal liability, theft or damage to
the Property, 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 shall be conducted at such times and in such a manner as Landlord shall
direct, and all moving shall take place during non-business hours unless Xxxxxxxx agrees in writing
otherwise.
(9) Tenant shall not employ any person or persons other than the janitor of Landlord for the
purpose of cleaning the Premises, unless otherwise agreed to by Landlord. Except with the written
consent of Landlord, no person or persons other than those approved by Landlord shall be permitted to
enter the Building for the purpose of cleaning the Building or the Premises. Tenant shall not cause any
unnecessary labor by reason of Xxxxxx's carelessness or indifference in the preservation of good order and
cleanliness. Tenant shall have the option to provide supplemental janitorial services through a reputable
vendor reasonably approved by Landlord.
(10) Tenant shall not use, keep or permit to be used or kept any foul or noxious gas or
substance in the Premises, or permit or suffer the Premises to be occupied or used in a manner offensive
or objectionable to Landlord or other occupants of the Building by reason of noise, odors and/or
vibrations, or interfere in any way with other tenants or those having business therein, nor shall any
animals or birds be brought in or kept in or about the Premises or the Building. In no event shall Tenant
keep, use, or permit to be used in the Premises or the Building any guns, firearm, explosive devices or
ammunition.
(11) No cooking shall be done or permitted by Tenant in the Premises, nor shall the Premises
be used for the storage of merchandise, for washing clothes, for lodging, or for any improper,
objectionable or immoral purposes. Notwithstanding the foregoing, however, Tenant may maintain and
use microwave ovens and equipment for brewing coffee, tea, hot chocolate and similar beverages,
provided that Tenant shall (i) prevent the emission of any food or cooking odor from leaving the
Premises, (ii) be solely responsible for cleaning the areas where such equipment is located and removing
food related waste from the Premises and the Building, or shall pay Landlord's standard rate for such
service as an addition to cleaning services ordinarily provided, (iii) maintain and use such areas solely for
Tenant's employees and business invitees, not as public facilities, and (iv) keep the Premises free of
vermin and other pest infestation and shall exterminate, as needed, in a manner and through contractors
reasonably approved by Landlord, preventing any emission of odors, due to extermination, from leaving
the Premises.
(12) Tenant shall not use or keep in the Premises or the Building any kerosene; gasoline, or
inflammable or combustible fluid or material, or use any method of heating or air conditioning other than
that supplied by Landlord.
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(13) Landlord will direct contractors as to where and how telephone and data wires and
cabling are to be introduced into the Premises and the Building. No boring or cutting for wires or cabling
will be allowed without the prior consent of Landlord. The location of telephones, call boxes and other
office equipment affixed to the Premises shall be subject to the prior approval of Landlord.
(14) Upon the expiration or earlier termination of the Lease, Tenant shall deliver to Landlord
the keys of offices, rooms and toilet rooms which have been furnished by Landlord to Tenant and any
copies of such keys which Tenant has made. In the event Tenant has lost any keys furnished by Landlord,
Tenant shall pay Landlord for such keys.
(15) Tenant shall not lay linoleum, tile, carpet, carpet tile, or other similar floor covering so
that the same shall be affixed to the floor of the Premises, except to the extent and in the manner
reasonably approved in advance by Landlord. The expense of repairing any damage resulting from a
violation of this rule or removal of any floor covering shall be borne by the tenant by whom, or by whose
contractors, employees or invitees, the damage shall have been caused.
(16) No furniture, packages, supplies, equipment or merchandise will be received in the
Building or carried up or down in the elevators, except between such hours and in such elevators as shall
be designated by Landlord, which elevator usage shall be subject to the Building's customary charge
therefor as established from time to time by Landlord.
(17) On Saturdays, Sundays and legal holidays, and on other days between the hours of 6:00
P.M. and 8:00 A.M., access to the Building, or to the halls, corridors, elevators or stairways in the
Building, or to the Premises may be refused unless the person seeking access is known to the person or
employee of the Building in charge or has a pass or is properly identified. Landlord shall in no case be
liable for damages for any error with regard to the admission to or exclusion from the Building of any
person. In case of invasion, mob, riot, public excitement, or other commotion, Landlord reserves the right
to prevent access to the Building during the continuance of the same by closing the doors or otherwise,
for the safety of the tenants and protection of property in the Building.
(18) Tenant shall be responsible for ensuring that the doors of the Premises are closed and
securely locked before leaving the Building and must observe strict care and caution that all water faucets
or water apparatus are entirely shut off before Tenant or Tenant's employees leave the Building, and that
all electricity, gas or air shall likewise be carefully shut off, so as to prevent waste or damage, and for any
default or carelessness Tenant shall make good all injuries sustained by other tenants or occupants of the
Building or Landlord. Landlord shall not be responsible to Tenant for loss of property on the Premises,
however occurring, or for any damage to the property of Tenant caused by the employees or independent
contractors of Landlord or by any other person.
(19) Landlord reserves the right to exclude or expel from the Building any person who, in the
judgment of Landlord, is intoxicated or under the influence of liquor or drugs, or who shall in any manner
do any act in violation of any of the rules and regulations of the Building.
(20) The requirements of any tenant will be attended to only upon application at the office of
the Building. Employees of Landlord shall not perform any work or do anything outside of their regular
duties unless under special instructions from Landlord, and no employee will admit any person (tenant or
otherwise) to any office without specific instructions from Landlord.
(21) Subject to Tenant's right of access to the Premises in accordance with Building security
procedures, Landlord reserves the right to close and keep locked all entrance and exit doors of the
Building on Saturdays, Sundays and legal holidays and on other days between the hours of 6:00 P.M. and
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8:00 A.M., and during such further hours as Landlord may deem advisable for the adequate protection of
the Building and the property of its tenants.
(22) So long as Landlord maintains and operates vending machines in the Building’s cafeteria
space available for use to all tenants in the Building, then, unless otherwise agreed to in writing by
Landlord, Tenant shall contract with the Building café operator for the purchase of the items sold in any
vending machine operated upon the Premises.
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EXHIBIT A
FLOOR PLAN OF PREMISES
A-1
EXHIBIT B
LANDLORD’S WORK; INITIAL TENANT WORK; CONSTRUCTION ALLOWANCE
1. Acceptance of Premises. Except as set forth in this Exhibit, Xxxxxx accepts the Premises in their
“AS-IS” condition on the date that this Lease is entered into. Landlord, at Xxxxxxxx’s sole cost
and expense, shall perform the following work in accordance with the plans attached hereto as
Exhibit B-2 (“Landlord’s Plans”):
(a) Refurbish and expand the base building 2nd and 3rd floor restrooms (collectively, the “New
Bathrooms”) to new building standard (collectively, the “Bathroom Work”).
(b) Refurbish the Building’s main entrance lobby (the “Common Area Work”).
(c) Refurbish the Building’s cafeteria space.
(d) Construct a new Building fitness facility with showers and lockers.
The work described in the foregoing sections (a) through (d) shall collectively be referred to
herein, as “Landlord’s Work”.
In no event shall any cost incurred by Landlord in connection with any or all of Landlord’s Work
be deducted from the Construction Allowance. Landlord shall use commercially reasonable
efforts to complete either the 2nd or 3rd floor restrooms that is part of the Bathroom Work and the
Common Area Work on or prior to August 31, 2017 and shall complete the remaining Bathroom
Work as soon thereafter as is reasonably practicable. Landlord shall use commercially
reasonable efforts to complete items (c) and (d) of Landlord’s Work on or prior to December 31,
2017.
2. Initial Tenant Work. Tenant may construct those certain tenant improvements and install
certain fixtures, equipment and cabling in the Premises required by Tenant for its occupancy as
shown on the preliminary site plan attached hereto as Exhibit B-3 (the “Initial Tenant Work”) in
accordance with and subject to the terms of this Exhibit B.
3. Plans. Landlord shall notify Tenant whether it approves of the submitted working drawings for
the Initial Tenant Work within ten (10) business days after Xxxxxx’s submission thereof.
Xxxxxxxx’s approval of the working drawings shall not be unreasonably withheld, conditioned or
delayed so long as such drawings are consistent with the preliminary site plan for the Initial
Tenant Work attached hereto as Exhibit B-3. If Landlord disapproves of such working drawings,
then Landlord shall notify Tenant thereof specifying in writing in reasonable detail the reasons for
such disapproval, in which case Tenant shall, within five (5) business days after such notice,
revise such working drawings in accordance with Xxxxxxxx’s objections and submit the revised
working drawings to Landlord for its review and approval. Landlord shall notify Tenant in
writing whether it approves of the resubmitted working drawings within five (5) business days
after its receipt thereof. This process shall be repeated until the working drawings have been
finally approved by Xxxxxx and Landlord.
4. Costs. The entire cost of performing the Initial Tenant Work (including design of the Initial
Tenant Work and preparation of drawings, costs of construction labor and materials, electrical
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usage during construction, additional janitorial services, general tenant signage, related taxes and
insurance costs, and the construction supervision fee referenced below, all of which costs are
herein collectively called the “Total Construction Costs”) in excess of the Construction
Allowance (hereinafter defined) shall be paid by Tenant.
5. Construction Allowance. Landlord shall provide to Tenant a construction allowance not to
exceed Four Hundred Thousand and 00/100 Dollars ($400,000.00) (the “Construction
Allowance”) to be applied toward the Total Construction Costs. Landlord shall pay to Tenant the
Construction Allowance in accordance with the terms of Section 7 below and following the
receipt by Landlord of the following items: (a) a request for payment, (b) final or partial lien
waivers, as the case may be, from all persons performing work or supplying or fabricating
materials for the Initial Tenant Work, fully executed, acknowledged and in recordable form, (c)
an architect’s certification that the Initial Tenant Work for which reimbursement has been
requested has been finally completed, including (with respect to the last application for payment
only) any punch-list items, on the appropriate AIA form or another form approved by Landlord,
and, if then available, and if not, as a condition to the final disbursement of the Construction
Allowance held by Landlord, (d) “as built” drawings in both paper and AutoCad format; (e) the
temporary certificate of occupancy or its equivalent issued for the Premises. In addition,
reimbursement of the Construction Allowance is subject to Tenant’s occupancy of the Premises
but will be made timely thereafter and after receipt of a Completed Allocation for Payment, and if
requested by Landlord in writing within two (2) weeks after Xxxxxxxx’s receipt of any Completed
Application for Payment, after completion of an estoppel certificate in form and substance
reasonably acceptable to Tenant confirming such factual matters as Landlord or Landlord’s
Mortgagee may reasonably request (collectively, a “Completed Application for Payment”).
Notwithstanding anything to the contrary contained in this Exhibit, Landlord shall not be
obligated to make any disbursement of the Construction Allowance during the pendency of any of
the following: (1) Landlord has received written notice of any unpaid claims relating to any
portion of the Initial Tenant Work or materials in connection therewith, other than claims which
will be paid in full from such disbursement, (2) there is an unbonded lien outstanding against the
Building or the Premises or Tenant’s interest therein by reason of work done, or claimed to have
been done, or materials supplied or specifically fabricated, claimed to have been supplied or
specifically fabricated, to or for Tenant or the Premises, (3) the conditions to the advance of the
Construction Allowance are not satisfied, or (4) a Default by Tenant exists.
A portion of the Construction Allowance, not to exceed Three Hundred Thousand and 00/100
Dollars ($300,000.00), may be used by Tenant to purchase cabling and furniture, fixtures and
equipment (“FF&E”) for the Premises and/or to pay for moving costs associated with Xxxxxx’s
move in to the Premises (collectively, the “Soft Costs”). In the event that Tenant uses more than
One Hundred Fifty Thousand and 00/100 Dollars ($150,000.00) of the Construction Allowance to
pay for FF&E (excluding relocation of existing glass office walls) (such portion of the FF&E
costing in excess of $150,000, the “Soft Cost FF&E”), then such Soft Cost FF&E shall belong to
Landlord, shall, at no cost to Tenant, be titled in Landlord’s name, and shall remain Landlord’s
property upon the expiration or earlier termination of the Lease (unless Landlord, in Landlord’s
sole discretion, requires any or all of such FF&E to be removed by Tenant upon expiration or
earlier termination), provided that during the Term, Tenant: (i) may use such Soft Cost FF&E
without charge (and Landlord shall not remove or grant any other party the right to use same) and
(ii) shall be responsible for any and all personal property taxes on such Soft Cost FF&E. Should
Tenant elect to use a portion of the Construction Allowance to pay for Soft Costs, Tenant and
Landlord must execute a mutually agreeable letter agreement or new amendment to the Lease,
which shall confirm the exact amount(s) of the Construction Allowance that will be used to
purchase each of cabling, FF&E and/or to pay for moving costs. Subject to the terms and
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conditions of Article 8, Tenant be obligated to repair, replace or restore the Soft Cost FF&E in the
event of any damage thereto, including, without limitation, casualty or condemnation and (z)
Tenant’s obligation to surrender the Soft Cost FF&E to Landlord at the expiration or earlier
termination of this Lease shall be subject to reasonable wear and tear. Provided no Default exists,
Landlord shall pay for the Soft Costs in accordance with Section 7 below.
6. Additional Construction Allowance. The amount of the Construction Allowance shall be
increased by an additional Two Hundred Thousand and 00/100 Dollars ($200,000.00) (the
“Additional Construction Allowance”) if and when the Stabilization Event (as defined in
Section 7 below) is satisfied. In such event, Landlord and Tenant shall execute an amendment to
this Lease confirming the new increased amount of the Construction Allowance. All of the other
terms and conditions applicable to the disbursement of the Construction Allowance provided for
in Section 5 above shall apply to the disbursement of the Additional Construction Allowance.
Notwithstanding anything herein to the contrary, if the total amount of the Construction
Allowance and/or the Additional Construction Allowance exceeds the total cost of Initial Tenant
Work (such excess, the “Excess Allowance”), then Landlord agrees that, upon Xxxxxx’s written
request, Tenant shall have the right to have any such Excess Allowance credited towards the
monthly installment(s) of Base Rent becoming due hereunder (until such Excess Allowance
available for such credit is exhausted) commencing in the first month subsequent to Substantial
Completion of the Initial Tenant Work that a monthly installment of Base Rent becomes due. In
the event Tenant desires any such credit, Tenant shall notify Landlord of the amounts that Xxxxxx
wants credited within ninety (90) days following Substantial Completion of the Initial Tenant
Work. Notwithstanding anything provided herein, in no event shall such credit of Base Rent
exceed One Hundred Thousand and 00/100 Dollars ($100,000.00).
7. Payment of Construction Allowance. No advance of the Construction Allowance shall be made
by Landlord until Xxxxxx has first paid from its own funds (and provided reasonable evidence
thereof to Landlord) the amount of the Construction Allowance sought for reimbursement.
Tenant shall promptly pay all contractors, vendors and suppliers as work is performed rather than
waiting for Landlord to disburse the Construction Allowance. Provided Tenant has satisfied all
of the conditions in Section 5 above, this Lease is in effect and Tenant is not in Default, Landlord
shall reimburse Tenant for the Total Construction Costs and/or the Soft Costs from the
Construction Allowance as follows: fifty percent (50%) if and when The X.X. Xxxxxxxxx
Company, a Delaware corporation and its subsidiaries, satisfies all of the conditions set forth on
Exhibit B-1 (collectively, the “Stabilization Event”) and fifty percent (50%) upon Tenant
evidencing to Landlord’s reasonable satisfaction a Term Loan debt reduction of The X.X.
Xxxxxxxxx Company, a Delaware corporation and its subsidiaries, from $449,000,000 to
$275,000,000 or less (the “Debt Reduction Event”). If by the first anniversary of the
Commencement Date both of the Stabilization Event and Debt Reduction Event have not
occurred, but all of the other conditions to disbursement of the Construction Allowance are met,
Landlord shall disburse ten percent (10%) of the Construction Allowance on each anniversary of
the Commencement Date, unless sooner paid upon achievement of the Stabilization Event and
Debt Reduction Event. Landlord shall not be required to disburse more than the total amount of
the Construction Allowance then actually expended by Xxxxxx.
EXHIBIT B-1
STABILIZATION EVENTS
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The Stabilization Event is defined as (1) Debt to EBITDA less than or equal to 6.0 in two consecutive
quarters at any point after the Commencement Date and (2) no Debt maturities greater than $50M in
forward 36 month period beyond the current maturity of February 2019. Debt = Term Loan Debt (or
similar replacement debt) as publicly reported, referenced in the Term Loan Payable Footnote of the X. X.
Xxxxxxxxx Company’s financial statements . This Debt maturity is specific to the Term Loan Debt (or
similar replacement debt). EBITDA = Adjusted EBITDA as publicly reported on a historical basis
according to the Term Loan Agreement referenced in the Business Segments Section of the 10-Q
Footnote 22.
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EXHIBIT B-2
LANDLORD’S PLANS
B-2-1
B-2-2
B-2-3
B-2-4
EXHIBIT B-3
SPACE PLAN FOR INITIAL TENANT WORK
B-3-1
B-3-2
EXHIBIT C
SPECIAL PROVISIONS
1. Option To Extend
(a) Tenant is hereby granted the option ("Extension Option") to extend the term of the
Lease for one (1) period of seven (7) Lease Years ("Extension Term"). The Extension Option may be
exercised only by giving Landlord irrevocable and unconditional written notice thereof no earlier than
eighteen (18) months and no later than fifteen (15) months prior to the commencement of the Extension
Term. Tenant may not exercise the Extension Option if Tenant is in Default under the Lease either at the
date of said notice or at any time thereafter prior to commencement of the Extension Term. Upon
exercise of the Extension Option, all references in the Lease to the Term shall be deemed to be references
to the Term as extended pursuant to the Extension Option.
(b) The Extension Term shall be on the same terms, covenants and conditions as are
contained in the Lease, except that (i) no additional extension option shall be conferred by the exercise of
the Extension Option, (ii) Base Rent applicable to the Premises for the Extension Term shall be
determined as provided below, and (iii) any initial rent abatement, concession or allowance which are in
the nature of economic concessions or inducements shall not be applicable to any Extension Term. In
addition to Base Rent, Tenant shall pay Additional Rent, and other Rent during the Extension Term as
provided in this Lease.
(c) Base Rent per annum per rentable square foot of the Premises for the Extension Term
shall be one hundred percent (100%) of the Current Market Rate for lease terms commencing on or about
the date of commencement of the Extension Term. The term "Current Market Rate" means the
prevailing rental rate per rentable square foot under office lease renewals recently executed for
comparable space in the Building and in comparable buildings in the Building’s submarket. The
determination of Current Market Rate shall take into consideration net versus gross lease (and differing
base years, if applicable); any differences in the size of space being leased, the location of space in the
building and the length of lease terms; any differences in definitions of rentable square feet or rentable
area with respect to which rental rates are computed; the value of rent abatements, allowances (for
demolition, space planning, architectural and engineering fees, construction, moving expenses or other
purposes), the creditworthiness of Tenant; and other pertinent factors. The Current Market Rate may
include an escalation of a fixed net rental rate (based on a fixed step or index) then prevailing in the
market.
(d) Within thirty (30) days after receipt of Tenant’s notice to extend Landlord shall deliver to
Tenant written notice of the Current Market Rate, including a new base year for Operating Expenses and
Taxes, and shall advise Tenant of the required adjustment to Base Rent, if any.
(e) Tenant shall, within thirty (30) days after receipt of Landlord’s notice, notify Landlord in
writing whether Tenant (a) accepts Landlord’s determination of the Current Market Rate or (b) requests
that the Current Market Rate be determined by an appraiser (“Arbitration Request”). If Tenant requests
that the Current Market Rate be determined by an appraiser, Landlord and Tenant, within ten (10) days
after the date of the Arbitration Request, shall each simultaneously submit to the other, in a sealed
envelope, its good faith estimate of the Current Market Rate (collectively referred to as the “Estimates”).
If the higher of such Estimates is not more than one hundred five percent (105%) of the lower of such
Estimates, then the Current Market Rate shall be the average of the two Estimates. If the Current Market
Rate is not resolved by the exchange of Estimates, Landlord and Tenant, within seven (7) days after the
exchange of Estimates, shall each select an appraiser to determine which of the two Estimates most
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closely reflects the Current Market Rate. Each appraiser so selected shall be certified as an MAI
appraiser and shall have had at least five (5) years experience within the previous ten (10) years as a real
estate appraiser working in the same submarket in which the Building is located, with working knowledge
of current office rental rates and practices. For purposes of this Lease, an “MAI” appraiser means an
individual who holds an MAI designation conferred by, and is an independent member of, the American
Institute of Real Estate Appraisers (or its successor organization, or in the event there is no successor
organization, the organization and designation most similar). Upon selection, Xxxxxxxx’s and Xxxxxx’s
appraisers shall work together in good faith to agree upon which of the two Estimates most closely
reflects the Current Market Rate. The Estimate chosen by such appraisers shall be binding on both
Landlord and Tenant as the Current Market Rate. If either Landlord or Tenant fails to appoint an
appraiser within the seven day period referred to above, the appraiser appointed by the other party shall be
the sole appraiser for the purposes hereof. If the two appraisers cannot agree upon which of the two
Estimates most closely reflects the Current Market Rate within the twenty (20) days after their
appointment, then, within ten (10) days after the expiration of such twenty (20) day period, the two (2)
appraisers shall select a third appraiser meeting the aforementioned criteria. Once the third appraiser has
been selected as provided for above, then, as soon thereafter as practicable but in any case within fourteen
(14) days, the appraiser shall make his determination of which of the two Estimates most closely reflects
the Current Market Rate and such Estimate shall be binding on both Landlord and Tenant as the Current
Market Rate. The parties shall share equally in the costs of the third appraiser. Any fees of any
appraiser, counsel or experts engaged directly by Landlord or Tenant, however, shall be borne by the
party retaining such appraiser, counsel or expert. In the event that the Current Market Rate has not been
determined by the commencement date of the Extension Term at issue, Tenant shall pay the most recent
Base Rent set forth in the Lease until such time as the Current Market Rate has been determined. Upon
such determination, Base Rent shall be retroactively adjusted. If such adjustment results in an
underpayment of Base Rent by Tenant, Tenant shall pay Landlord the amount of such underpayment
within thirty (30) days after the determination thereof. If such adjustment results in an overpayment of
Base Rent by Tenant, Landlord shall credit such overpayment against the next installment of Base Rent
due under the Lease and, to the extent necessary, any subsequent installments until the entire amount of
such overpayment has been credited against Base Rent.
(f) Tenant must timely exercise the Extension Option or the Extension Option shall
terminate. Tenant may not exercise the Extension Option if Tenant is not occupying and conducting
business in the Premises. Tenant's exercise of the Extension Option shall not operate to cure any default
by Tenant of any of the terms or provisions in the Lease, nor to extinguish or impair any rights or
remedies of Landlord arising by virtue of such default. If the Lease or Tenant's right to possession of the
Premises shall terminate in any manner whatsoever before Tenant shall exercise the Extension Option, or
if Tenant shall have subleased or assigned all or any portion of the Premises to any party other than a
Permitted Transferee, then immediately upon such termination, sublease or assignment, the Extension
Option shall simultaneously terminate and become null and void. The Extension Option is personal to
Tenant and Approved Sublessee.
2. Right of First Refusal
Subject to renewal options, expansion options, and other preferential rights to lease of other
tenants existing as of the Execution Date, provided no Default then exists, provided Tenant and/or a
Permitted Transferee is occupying the entire Premises initially leased, provided this Lease is then in full
force and effect and provided that Tenant’s interest in this Lease has not been assigned other than to a
Permitted Transferee, Tenant shall have the right of first refusal (“Right of First Refusal”) as hereinafter
described, to lease any space in the Building that Landlord desires to make available for lease (“Right of
First Refusal Space”), for a term beginning on the ROFR Effective Date (as hereinafter defined). This
Right of First Refusal is exercisable at the following times and upon the following conditions:
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(a) Landlord shall not voluntarily lease the Right of First Refusal Space to a third party
(other than to the then-current tenant or subtenant of such space) without making such lease (a “New
Lease”) subject to Tenant’s Right of First Refusal. Landlord shall provide Tenant with at least 20 days
prior written notice of the material business terms of any anticipated New Lease with a bona fide third
party and not less than at least five (5) business days prior to the expiration of such 20 day period,
Landlord shall provide a second written notice to Tenant (“Landlord’s ROFR Notice”) of the final
agreed upon significant business terms of the bona fide proposal, including, without limitation, a
description of that portion of the Right of First Refusal Space being offered (which may include space in
excess of the Right of First Refusal Space) (“Landlord’s ROFR Notice Space”), the rent, the
commencement date, the term, any allowances and any concessions to be given. Tenant shall have a
period of five (5) business days after the date of delivery of Landlord’s ROFR Notice to notify Landlord
(“Tenant’s ROFR Notice”), whether Tenant elects to exercise the right granted hereby to lease the entire
Landlord’s ROFR Notice Space on the terms set forth in Landlord’s ROFR Notice. If Tenant elects to
exercise its right to lease the Landlord’s ROFR Notice Space, the term thereof shall commence as of the
commencement date set forth in the bona fide proposal (the “ROFR Effective Date”). If Tenant fails to
give Xxxxxx’s ROFR Notice to Landlord within the required five (5) business day period, Tenant shall be
deemed to have refused its right to lease such space.
(b) If Tenant fails to or does not elect to exercise its right to lease the Landlord’s ROFR
Notice Space, Tenant’s rights under this Section shall be deemed waived as to such space and Landlord
shall have the right to lease said space on terms not materially more favorable than the terms contained in
the Landlord’s ROFR Notice. However, if the Landlord fails to execute a new lease within six (6) months
of Xxxxxx’s waiver or refusal, then Xxxxxx’s Right of First Refusal shall be reinstated. Subject to the
foregoing provisions, the parties intend that this Right of First Refusal shall be a continuing right
throughout the Term. For purposes of this paragraph, the phrase “materially more favorable” shall mean
that Landlord’s new deal terms are five percent (5%) or more lower on a net effective basis than
Landlord’s offer to Tenant.
(c) In the event that Tenant shall exercise its Right of First Refusal as provided herein,
Landlord and Tenant promptly after Tenant gives Xxxxxx’s ROFR Notice, shall enter into a written
agreement modifying and supplementing this Lease to confirm the addition of the Landlord’s ROFR
Notice Space to the Premises in accordance with the terms and provisions of this Lease, except as
otherwise provided in Landlord’s ROFR Notice, but the effectiveness of the addition of Landlord’s ROFR
Notice Space to the Premises shall not be conditioned upon the execution and delivery of such instrument.
If Tenant exercises its Right of First Refusal, Landlord shall terminate the bona fide proposal for the
Landlord’s ROFR Notice Space.
3. Exclusive Use.
3.1 Provided: (a) a Default does not then exist, (b) this Lease and the Guaranty are in full
force and effect, (c) Tenant or an affiliate of Guarantor remains the Tenant under this Lease, and (d)
Tenant or a Permitted Transferee is leasing and occupying at least the entire Premises initially leased,
then Landlord shall not enter into a lease, license or other occupancy agreement for other space in the
Building with any of the following entities (each, a “Restricted Establishment”): (1) any of the
establishments listed on Exhibit K attached hereto (or their successors in interest), or (2) a party whose
primary business in the Building is mortgage lending and refinancing, personal and business loans,
structured settlement and annuity payment purchasing, prepaid card business, pre-settlement business, or
credit card business (each, a "Competing Business" and the exclusive right of Tenant to conduct such
businesses granted hereunder, the “Exclusive Use”). The term “primary business” as used herein shall be
deemed to mean that portion of a party’s business comprising in excess of thirty percent (30%) of its
business from such party’s particular leased premises at the Property only. Landlord shall be deemed to
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have leased, licensed or otherwise granted space in the Building only if (i) Landlord after the date of this
Lease enters into a lease, license, occupancy or other agreement with (a) a Restricted Establishment, or
(b) the tenant, licensee or occupant in question expressly permitting it to engage in the Competing
Business, or (ii) Landlord's consent is required for any change to a permitted use, and Landlord consents,
after the date of this Lease, to change such use to permit a Competing Business. Landlord shall not be
deemed to have leased to a Competing Business if the Competing Business has been permitted to assume
a lease or operate its business based upon or as a result of a bankruptcy or as a result of a merger or
acquisition, insolvency or similar action or if the Competing Business has been permitted to operate as the
result of an action or order by a court. If Landlord is in default of this Section, the terms and conditions of
Article 21 shall apply.
.
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EXHIBIT D
COMMENCEMENT DATE CONFIRMATION
Landlord: THE GC NET LEASE (XXXXX) INVESTORS, LLC
Tenant: GREEN APPLE MANAGEMENT COMPANY, LLC
This Commencement Date Confirmation is made pursuant to that certain Lease dated as of
______ ___, 2017 (the “Lease”) for certain premises known as Suites 200 and 300 (the “Premises”) in the
building commonly known as 0000 Xxxxxx Xxxxx, Xxxxx, Xxxxxxxxxxxx. This Confirmation is made
pursuant to Article 1 of the Lease.
1. Lease Commencement Date, Termination Date. The Commencement Date of the Lease is
___________, 20__, and the Termination Date of the Lease is ______________, 20__.
2. Acceptance of Premises. Subject to Landlord’s obligations under the Lease and Landlord’s
Work, Tenant has inspected the Premises and affirms that the Premises are acceptable in all respects in its
current “as is” condition.
3. Agreement. Tenant shall advise Landlord in writing of any disagreement with the statements
set forth within ten (10) days after Xxxxxx’s receipt of this letter, or else Tenant shall be conclusively
deemed to agree with all of the matters set forth in this letter.
4. Incorporation. This Confirmation is incorporated into the Lease, and forms an integral part
thereof. This Confirmation shall be construed and interpreted in accordance with the terms of the Lease
for all purposes.
LANDLORD:
The GC Net Lease (Xxxxx) Investors, LLC,
a Delaware limited liability company
By: Xxxxxxx Capital Essential Asset Operating Partnership, L.P.,
a Delaware limited partnership, its sole member
By: Xxxxxxx Capital Essential Asset REIT, Inc.,
a Maryland corporation, its general partner
By: _______________________________________
Name: _________________________________
Title: __________________________________
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EXHIBIT E
FORM OF GUARANTY
This GUARANTY (“Guaranty”) is given by THE X.X. XXXXXXXXX COMPANY, LLC, a
Delaware limited liability company (“Guarantor”) to The GC Net Lease (Xxxxx) Investors, LLC, a
Delaware limited liability company (“Landlord”), with respect to that certain Lease dated
_______________, 2017 (“Lease”), by and between Landlord and Green Apple Management Company,
LLC, a Delaware limited liability company (“Tenant”), under which Tenant has leased from Landlord
certain premises known as Suites 200 and 300 in 0000 Xxxxxx Xxxxx, Xxxxx, Xxxxxxxxxxxx.
To induce Xxxxxxxx to execute the Lease and for other good and valuable consideration, the
receipt and sufficiency of which Guarantor acknowledges, Xxxxxxxxx promises and agrees as follows:
1. Guarantor absolutely, unconditionally, and irrevocably guarantees the payment and
performance of, and will pay and perform as a primary obligor, all of Tenant’s covenants, obligations,
liabilities and duties under the Lease (“Guaranteed Obligations”), as if Guarantor had executed the Lease
as Tenant. The Guaranteed Obligations include, without limitation, payment of rent and all other amounts
required to be paid by Tenant under the Lease.
2. The Guaranteed Obligations are independent of Tenant’s obligations under the Lease.
Landlord will not be required to enforce any of the Guaranteed Obligations against Tenant or any other
person before seeking or enforcing the Guaranteed Obligations against Guarantor. Landlord may bring an
action against Guarantor (or, if Guarantor is more than one party, against any or all of the parties who
constitute Guarantor) to enforce any Guaranteed Obligations without joining Tenant, any other Guarantor,
or any other person in this action. Landlord may join Guarantor in any action commenced by Landlord
against Tenant to enforce any of the Guaranteed Obligations and Guarantor waives any demand by
Landlord or any prior action by Landlord against Tenant.
3. Landlord is not obligated to apply any Security Deposit, or other deposit or credit against
any default or damages under the Lease before bringing any action or pursuing any remedy available to
Landlord against Guarantor. Guarantor’s liability under this Guaranty is not affected in any manner by
any Security Deposit, or other deposit or credit, or Landlord’s application of any of these amounts against
any obligation of Tenant under the Lease.
4. Guarantor waives notice of any of the following, and the Guaranteed Obligations will
remain in full force and effect and will not be affected in any way by either:
(a) Any forbearance, indulgence, compromise, settlement or variation of terms which may be
extended to Tenant by Landlord;
(b) Any modification, amendment or alteration of the Lease, whether prior or subsequent to
Lease execution, including any renewal or extension of the Lease, expansion or
contraction of the Premises leased;
(c) Any subletting of the premises demised under the Lease or any assignment of Tenant’s
interest in the Lease;
(d) Any termination of the Lease to the extent that Tenant remains liable under the Lease
after such termination;
(e) The release by Landlord of any party (other than Guarantor) obligated for the Guaranteed
Obligations or Landlord’s acquisition, release, return or misapplication of any other
collateral (including without limitation, any other guaranties) given now or later as
additional security for the Guaranteed Obligations;
E-1
(f) The release or discharge of Tenant in any creditors, receivership, bankruptcy or other
proceedings;
(g) The impairment, limitation or modification of the liability of Tenant or the estate of
Tenant in bankruptcy, or of any remedy for the enforcement of Tenant’s liability under
the Lease, resulting from the operation of any present or future provision of the Federal
Bankruptcy Code or other statute, or from any court decision;
(h) The rejection or disaffirmance of the Lease in any proceeding described in (g); or
(i) Tenant’s death or any disability, or any other defense of Tenant.
5. Guarantor waives notice of acceptance of this Guaranty and all other notices in
connection with this Guaranty or the Guaranteed Obligations, including notices of default by Tenant
under the Lease, and waives diligence, presentment and suit by Landlord in the enforcement of any
Guaranteed Obligations.
6. Until all Guaranteed Obligations are fully performed and observed, Guarantor has no
right of subrogation and waives any right to enforce any remedy against Tenant for any payments or acts
performed by Guarantor under this Guaranty, and Guarantor subordinates any liability or indebtedness of
Tenant now or later held by Guarantor to the obligations of Tenant to Landlord under the Lease.
7. Guarantor will pay Landlord’s reasonable costs and attorneys’ fees incurred in
successfully enforcing Guarantor’s obligations under this Guaranty in any action or proceeding to which
Landlord is a party. In any action brought under this Guaranty, Guarantor submits to the jurisdiction of
the courts of the State of Pennsylvania, and to venue in the Superior Court of the State of Pennsylvania.
8. XXXXXXXXX WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM BROUGHT BY EITHER PARTY AGAINST THE OTHER CONCERNING
ANY MATTER RELATED TO THIS GUARANTY.
9. This Guaranty binds Guarantor and each of its heirs, successors and assigns and will
inure to the benefit of Landlord and its successors and assigns.
10. If Guarantor is more than one party, then the obligations of each party as Guarantor under
this Guaranty are joint and several.
11. If the Guarantor is a corporation, the undersigned hereby represents and warrants that this
Guaranty has been duly authorized, executed and delivered and that the party executing this Guaranty has
all requisite corporate authority to execute this Guaranty.
12. If any provision of this Guaranty is found by a court to be invalid for any reason, the
remainder of this Guaranty shall continue in full force and effect.
EXECUTED THIS ___ DAY OF _______________ 2017.
GUARANTOR:
THE X.X. XXXXXXXXX COMPANY, LLC,
a Delaware limited liability company
By: ________________________
Name: ______________________
Its: _________________________
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EXHIBIT F
FURNITURE
F-1
EXHIBIT G
OPERATING EXPENSE EXCLUSIONS
A. Leasing commissions attorney fees costs and disbursements and other expenses incurred in
connection with negotiations or disputes with tenants or other occupants or prospective tenants or other occupants,
or associated with the enforcement of any leases or the defense of Landlord’s title to or interest in the Building or
any part thereof;
B. Costs (including permit, license and inspection fees) incurred in renovating or otherwise
improving or decorating, painting or redecorating space for tenants or other occupants or in renovating or
redecorating vacant space;
C. Landlord’s costs of any services sold or provided tenants or other occupants for which Landlord is
entitled to be reimbursed by such tenants or other occupants as an additional charge or rental over and above the
basic rent (and escalations thereof) payable under the lease with such tenant or other occupant;
D. Costs incurred by Landlord for alterations or additions which are considered capital improvements
and replacements under generally accepted accounting principles, except those that reduce Operating Expenses or
are made to comply with any Laws or other governmental requirements that first become effective after the date of
this Lease; provided, all such permitted capital expenditures (together with reasonable financing charges) shall be
amortized for purposes of this Lease over the shorter of: (i) their useful lives or (ii) the period during which the
reasonably estimated savings in Operating Expenses equals the expenditures; [provided, however, replacement of
components of a larger capital improvement investment shall not be considered as capital (if so determined by
Landlord in its commercially reasonable discretion) unless they cost in excess of $25,000.00 per component (i.e.,
replacement of a motor in a cooling tower);]
E. Depreciation and amortization;
F. Costs incurred due to violation by Landlord or any tenant of the terms and conditions of any lease;
G. Overhead and profit paid to subsidiaries or affiliates of Landlord for services on or to the Project
and/or Building, to the extent only that the costs of such services exceed competitive costs, or such services where
they are not so rendered by a subsidiary or affiliate. Any management fees in excess of four percent (4%) of the
Building’s gross revenue are excluded from Operating Expenses;
H. Landlord’s general corporate overhead and general administrative expenses;
I. Any compensation paid to clerks, attendants or other persons working in or managing commercial
concessions operated by Landlord to the extent the concession generates rent or other revenue to the Property;
J. Rentals and other related expenses incurred in leasing air conditioning systems, elevators or other
equipment ordinarily considered to be of a capital nature, except equipment which is used in providing janitorial
services and which is not affixed to the Building on a temporary basis and excluding emergency needs, such as
rental of cooling, generator, etc. in the event of power or equipment failure or interruption;
K. All items and services for which Tenant or any other tenant or occupant of the Building
reimburses Landlord or pays to third parties or which Landlord provides selectively to one or more tenants or
occupants of the Building (other than Tenant) without reimbursement;
L. Advertising and promotional expenditures related to leasing space in the Building or selling the
Building;
M. Costs incurred in operating any underground parking garage and other parking facilities within the
Building, but the foregoing shall not prevent Landlord for charging for parking;
G-1
N. Costs incurred to provide services or other benefits to other tenants or occupants of a type that are
not provided or available to Tenant hereunder;
O. Repairs or other work occasioned by fire, windstorm or other casualty, or by condemnation, the
costs of which are reimbursed or reasonable reimbursable to Landlord by insurers, other parties or by governmental
authorities in eminent domain;
P. Debt service, interest or other finance charges unless specifically included above;
Q. Rental payments to any ground lessor or landlord;
R. The costs to correct structural and latent defects in the original construction of the Building;
T. Taxes;
U. Wages, salaries and benefits of employees above the level of Building manager; and
V. Costs incurred to correct violations of Laws existing on the date of this Lease.
G-2
EXHIBIT H
INTENTIONALLY DELETED
H-1
EXHIBIT I
TENANT’S RESERVED SPACES
I-1
EXHIBIT J
JANITORIAL SPECIFICATIONS
J-1
J-2
J-3
J-4
EXHIBIT K
RESTRICTED ESTABLISHMENTS
Advance Funding, LLC
American Structured Funding, LLC
Annuitants Federal Bank (aka AnFed Bank)
Annuity Transfers, LTD
Aspyre Settlement Funding, Inc.
Bank of Internet
Bearberry Square Funding, LLC
Xxxxxxx Funding Solutions, LLC
BTG Advisors
Catalina Structured Funding, Inc.
CBC Settlements
Clearscape Funding Corporation
Clearwater Capital
Client First Settlement Funding
Corona Capital Group
Covered Bridge Capital
DRB Capital LLC
Encore Financial Services Group, Inc.
Encore Funding
Einstein Structured Funding
Fairfield Funding
First Providen/PPI
Fortress Funding
Genex Capital
Global Funding, Inc.
Xxxxxxx Enterprises
Highpoint
Imperial Finance & Trading LLC
Imperial Structured Settlements
JSJ Management
Lake Ridge Capital, LLC
Liberty Settlement Solutions
Liquidating Marketing, Ltd.
My Lumpsum
New Leaf Structured Settlements
No More Waiting LLC
Northeastern Capital
Novation Capital
NuPoint Funding LLC
Oasis Legal Finance
Pacific Capital
Xxxxxx Financial Services
Patriot Settlement
QLS, LLC
Quick Lump Sum
Xxxxxxxxxxxxx.xxx
K-1
R & P Capital
Reliance Funding
Rescue Capital
Selective Settlements International
Seneca One
Settlement Capital Corporation
Settlement Quotes, LLC
Singer Asset Finance Co., LLC
Solid Funding
Sovereign Funding Group
Stone Street Capital
Strategic Capital
Structured Asset Funding
Sunshine Settlement Funding
Xxxxxx Park Capital
Thrivest Legal Funding
True Vision Funding
US Settlement Funding
U.S. Claims
Voyager Financial Group LLC
Washington Square Financial
Woodbridge Investments
Woodbridge Structure Settlement Funding
K-2
EXHIBIT L
FIRST FLOOR ROOM
L-1