EXHIBIT 10.22
▇▇▇▇-▇▇▇▇
SHORT FORM LEASE
Between
▇▇▇▇-▇▇▇▇ EAST LAKEMONT L.L.C.
as Landlord,
and
IVIVI TECHNOLOGIES, INC.,
as Tenant
Building
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
THIS LEASE is made on the 21st day of June between ▇▇▇▇-▇▇▇▇ EAST LAKEMONT
L.L.C., a New Jersey limited liability company, whose address is c/o ▇▇▇▇-▇▇▇▇
Realty Corporation, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (who is
referred to in this Lease as "Landlord") and IVIVI TECHNOLOGIES, INC., a New
Jersey corporation, whose address is ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ (who is referred to in this Lease as "Tenant"). This Lease consists of the
following Basic Lease Provisions and Definitions and the attached General
Conditions and Exhibits. The Basic Lease Provisions and Definitions are referred
to in this Lease as the "Basic Lease Provisions."
BASIC LEASE PROVISIONS
----------------------
1. BASE PERIOD COSTS means the following:
(a) Base Operating Costs: Operating Costs incurred during the Calendar
Year.
(b) Base Real Estate Taxes: Real Estate Taxes incurred during the Calendar
Year.
(c) Base Insurance Costs: Insurance Costs incurred during the Calendar
Year.
(d) Base Utility and Energy Costs: Utility and Energy Costs incurred
during the Calendar Year.
2. BUILDING means ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇.
3. CALENDAR YEAR means the calendar year 2007.
4. COMMENCEMENT DATE means October 1, 2007, subject to Article 20 of this Lease.
5. DEMISED PREMISES OR PREMISES mean and are agreed and deemed to be 7,494 gross
rentable square feet on the ground floor as shown on Exhibit A to this Lease,
which includes an allocable share of the Common Facilities.
6. EXPIRATION DATE means 11:59 p.m. on the last day of the month in which the
day before the eighty-fifth (85th) month anniversary of the Commencement Date
occurs.
7. FIXED BASIC RENT means the following:
Monthly Annual Per
Term Annual Rate Installments Sq. Ft. Rent
--------------------------- ----------- ------------ ---------------
Month 1 through Month 24 $168,615.00 $14,051.25 $22.50
Month 25 through Month 85 $187,350.00 $15,612.50 $25.00
Notwithstanding anything contained herein to the contrary and provided Tenant
shall not be or not have been in default under any of the terms and conditions
of the Lease, Tenant shall not be required to pay Fixed Basic Rent during the
thirteenth (13th) month following the Commencement Date.
8. HVAC AFTER HOURS CHARGE is $35.00 per hour per zone for heat and $45.00 per
hour per zone for air conditioning, subject to Section 17 (b) of the Lease. The
HVAC After Hours Charge (including the discounted rate below) is subject to
increase from time to time to reflect the increase in the cost of providing such
after hours HVAC service. The Premises consist of one zone for heat and air
conditioning. Notwithstanding anything herein to the contrary, during the summer
season of each Lease Year during the Term, the HVAC After Hours Charge shall be
reduced to $20.00 per hour per zone, subject to section 17b of the Lease for the
first 120 hours of after hours air conditioning requested by Tenant.
9. NOTICE ADDRESSES shall mean the following:
If to Tenant:
-------------
_____________________
_____________________
_____________________
If to Landlord by personal or overnight delivery:
c/o ▇▇▇▇-▇▇▇▇ Realty Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Executive Vice President and General Counsel
If to Landlord by mail:
c/o ▇▇▇▇-▇▇▇▇ Realty Corporation
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Executive Vice President and General Counsel
10. PARKING SPACES means a total of twenty-four (24) parking spaces.
Assigned: four (4), as shown on Exhibit A-1.
Unassigned: twenty (20)
11. SECURITY DEPOSIT means FORTY-SIX THOUSAND EIGHT HUNDRED THIRTY-SEVEN AND
50/100 DOLLARS ($46,837.50).
12. TENANT'S BROKER means ▇▇▇▇▇▇▇ Corporate Real Estate.
13. TENANT'S PERCENTAGE means and is agreed and deemed to be 11.33%.
DEFINITIONS
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1. ADDITIONAL RENT means all money, other than the Fixed Basic Rent, payable by
Tenant to Landlord under the Lease, including, but not limited to, the monies
payable by tenant to Landlord pursuant to Exhibits G and H of this Lease.
2. BUILDING HOLIDAYS means the holidays shown on Exhibit E and all days observed
as holidays by the United States, State, or labor unions representing
individuals servicing the Building in behalf of Landlord; if there be no such
labor unions, such definition shall include holidays designated by Landlord for
the benefit of such individuals.
3. BUILDING HOURS means Monday through Friday, 8:00 a.m. to 6:00 p.m. and
Saturday, 8:00 a.m. to 1:00 p.m., but excluding Building Holidays.
4. COMMON FACILITIES means and includes the lobby; elevator(s); fire stairs;
public hallways; public lavatories; all other general Building components,
facilities and fixtures that service or are available to more than one tenant;
air conditioning mechanical rooms; fan rooms; janitors' closets; electrical and
telephone closets serving more than one tenant; elevator shafts and machine
rooms; flues; stacks; pipe shafts and vertical ducts with their enclosing walls;
and structural components of the Building.
Whenever the word "includes" or "including" is used in this Lease, it means
"includes but is not limited to" and "including but not limited to,"
respectively.
5. EXHIBITS are the following:
Exhibit A Location of Premises
Exhibit A-1 Site Plan - Parking
Exhibit B Rules and Regulations
Exhibit C Workletter Agreement
Exhibit D Cleaning Services
Exhibit E Building Holidays
Exhibit F Commencement Date Agreement
Exhibit G Tax and Operating Cost Rider
Exhibit H Electricity Rider
Exhibit I Letter of Credit Form
The Exhibits are attached at the back of this Lease and are a part of this
Lease.
6. LEGAL REQUIREMENTS means all present and future laws and ordinances of
federal, state, municipal and county governments, and rules, regulations, orders
and directives of departments, subdivisions, bureaus, agencies or offices of
such governments, or any other governmental, public or quasi-public authorities
having jurisdiction over the Building, and the directions of any public officer
pursuant to law.
7. PRIME means the so-called annual prime rate of interest established and
quoted by The Wall Street Journal (or its successor), from time to time, but in
no event greater than the highest lawful rate from time to time in effect.
8. PERMITTED USE means general office use consistent with a first class office
building and for no other purpose.
9. REAL PROPERTY means the Building, the land upon which the Building stands,
together with adjoining parking areas, sidewalks, driveways, landscaping and
land.
10. STATE means the State of New Jersey.
11. TER1VI means the period of time beginning on the Commencement Date and
ending on the Expiration Date.
-- End of Basic Lease Provisions and Definitions --
TABLE OF CONTENTS
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1. LEASE:....................................................................1
2. FIXED BASIC RENT:.........................................................1
3. USE AND OCCUPANCY:........................................................1
4. CARE AND REPAIR OF PREMISES:..............................................1
5. ALTERATIONS, ADDITIONS OR IMPROVEMENTS:...................................2
6. ASSIGNMENT AND SUBLEASE:..................................................2
7. COMPLIANCE WITH RULES AND REGULATIONS:....................................4
8. DAMAGES TO BUILDINGS:.....................................................4
9. EMINENT DOMAIN:...........................................................4
10. LANDLORD'S REMEDIES ON DEFAULT:...........................................5
11. DEFICIENCY:...............................................................5
12. SUBORDINATION:............................................................6
13. SECURITY DEPOSIT:.........................................................6
14. RIGHT TO CURE TENANT'S BREACH:............................................7
15. LIENS:....................................................................7
16. RIGHT TO INSPECT AND REPAIR:..............................................7
17. SERVICES TO BE PROVIDED BY LANDLORD:......................................7
18. TENANT'S ESTOPPEL:........................................................7
19. HOLDOVER TENANCY:.........................................................7
20. LANDLORD'S WORK; COMMENCEMENT:............................................8
21. OVERDUE RENT CHARGE/INTEREST:.............................................8
22. INSURANCE:................................................................9
23. INDEMNITY:...............................................................10
24. BROKERS:.................................................................10
25. PERSONAL LIABILITY:......................................................10
26. NOTICES:.................................................................10
27. AUTHORITY:...............................................................11
28. PARKING SPACES:..........................................................11
29. RELOCATION:..............................................................11
30. MISCELLANEOUS:...........................................................11
31. OPTION TO RENEW:.........................................................13
32. RIGHT OF FIRST OFFER:....................................................15
GENERAL CONDITIONS
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1. LEASE:
Landlord has leased the Premises to Tenant for the Term.
2. FIXED BASIC RENT:
Tenant will pay Landlord the Fixed Basic Rent. At Landlord's option, if Tenant
shall default in the payment of Fixed Basic Rent and/or Additional Rent beyond
applicable notice and cure periods more than two (2x) times in any Lease Year,
upon notice to Tenant, Tenant will pay the Fixed Basic Rent and Additional Rent
by electronic transfer. The Fixed Basic Rent payable for the entire Term will be
the aggregate of the Annual Rate set forth in the Basic Lease Provisions and
will be payable, in advance, on the first day of each calendar month during the
Term at the Monthly Installments set forth in the Basic Lease Provisions, except
that a proportionately lesser amount will be paid for the first month of the
Term if the Term commences on a day other than the first day of the month.
Tenant will pay the first (1st) full monthly installment of Fixed Basic Rent
upon Tenant's execution and delivery of this Lease. Tenant will pay Fixed Basic
Rent, and any Additional Rent, to Landlord at Landlord's address set forth in
the first paragraph of this Lease, or at such other place as Landlord may
designate in writing, without demand and without counterclaim, deduction or set
off.
3. USE AND OCCUPANCY:
Tenant will use the Premises solely for the Permitted Use.
Neither Tenant, nor anyone acting by or through Tenant, will generate, handle,
dispose, store or discharge any hazardous substances or wastes as defined by
Legal Requirements in, on or around the Premises, the Building or the Real
Property in violation of any Legal Requirements (such actions collectively
referred to as "Prohibited Actions"). Tenant will defend, indemnify and hold
Landlord harmless against any and all loss, cost, damage, liability or expense
(including attorneys' fees and disbursements) which Landlord may sustain as a
result of any Prohibited Actions.
4. CARE AND REPAIR OF PREMISES:
Tenant will not commit any act that damages the Premises or Building and will
take good care of the Premises, and will comply with all Legal Requirements
affecting the Premises or the Tenant's use and/or occupancy of the Premises.
Landlord will, at Tenant's expense, make all necessary repairs to the Premises.
Landlord will make all necessary repairs to the Common Facilities. The cost of
repairs to the Common Facilities will be included in Operating Costs, except
where the repair has been made necessary by misuse or neglect by Tenant or
Tenant's agents, employees, contractors, invitees, visitors or licensees
(collectively, "Tenant's Agents"), in which event Landlord will nevertheless
make the repair but Tenant will pay to Landlord, as Additional Rent, upon
demand, the cost incurred by Landlord to complete such repairs. The cost of
repairs to the Common Facilities where the repair has been made necessary by
misuse or neglect by another tenant or another tenant's agents, employees,
contractors, invitees, visitors or licensees, will not be included in Operating
Costs. All improvements made by Tenant prior to or after the commencement of the
Term which are attached to the Premises will, at Landlord's option, become the
property of Landlord upon the expiration or sooner termination of this Lease.
Not later than the last day of the Term, Tenant will, at Tenant's expense,
remove from the Building all of Tenant's personal property and those
improvements made by Tenant which Landlord has not elected by notice to Tenant
to retain as Landlord's property, as well as all trade fixtures (other than
built-in cabinet work), moveable partitions, telephone, computer, data and
antenna wiring, cabling and related conduit and the like. Tenant will repair all
injury done by or in connection with the installation or removal of said
property, improvements, wiring and the like; cap or terminate all telephone,
computer and data connections at service entry panels in accordance with Legal
Requirements; and surrender the Premises in as good condition as they were at
the beginning of the Term, except for reasonable wear and damage by casualty or
other cause not due to the misuse or neglect by Tenant and/or Tenant's Agents.
All property of Tenant remaining on the Premises after the last day of the Term
will be conclusively deemed abandoned and may be removed and discarded or stored
at Tenant's risk by Landlord, and Tenant will pay Landlord for the cost of such
removal, discarding and/or storage. Notwithstanding anything contained herein to
the contrary, Tenant shall remove all installations that are "non-standard
office improvements". For purposes hereof, "non-standard office improvements"
shall mean raised flooring, interior staircases, vaults, elevators,
modifications to the Building's utility and mechanical systems and unusual
configuration for first class office space. Tenant shall repair any damage to
the Premises resulting from such removal.
Tenant is responsible for all costs related to the repair and maintenance of any
additional or supplemental HVAC systems, appliances and equipment serving
exclusively the Premises or installed to meet Tenant's specific requirements.
Tenant will purchase and maintain throughout the Term an annual full maintenance
and service contract for this equipment and will forward a copy of each proposed
contract to Landlord for its approval prior to signing it.
5. ALTERATIONS, ADDITIONS OR IMPROVEMENTS:
Tenant will not, without first obtaining the written consent of Landlord, make
any alterations, additions or improvements (collectively, "alterations") in, to
or about the Premises. Unless the alterations affect the Common Facilities or
Building Systems or would otherwise require a building permit, Landlord will not
unreasonably withhold or delay its consent. Building Systems include the life
safety, plumbing, electrical, heating, ventilation and air conditioning systems
in the Building. Tenant may, upon prior notice to Landlord, perform minor
cosmetic improvements, such as painting and wallpapering, without the prior
consent of Landlord.
If Tenant shall request the consent or approval of Landlord to the making of any
alterations or to any other thing, and Landlord shall seek and pay a separate
fee for the opinion of Landlord's counsel, architect, engineer or other
representative or agent as to the form or substance thereof, Tenant shall pay
Landlord, as Additional Rent, within 30 days after demand, all reasonable costs
and expenses of Landlord incurred in connection therewith, including, in case of
any alterations, costs and expenses of Landlord in reviewing plans and
specifications.
6. ASSIGNMENT AND SUBLEASE:
Tenant will not mortgage, pledge, assign or otherwise transfer this Lease or
sublet all or any portion of the Premises in any manner except as specifically
provided for in this Article 6:
a) If Tenant desires to assign this Lease or sublease all or part of the
Premises, the terms and conditions of such assignment or sublease will be
communicated by Tenant to Landlord in writing no less than thirty (30) days
prior to the effective date of such sublease or assignment. Prior to such
effective date, Landlord will have the option, upon notice to Tenant, to
terminate the Lease, (i) in the case of subletting, solely as to that portion of
the Premises to be sublet, or (ii) in the case of an assignment, as to all of
the Premises, and in such event, Tenant will be fully released from its
obligations with respect to the terminated space ("Recapture Space") accruing
from and after the effective date. If Landlord terminates the Lease as to the
Recapture Space, in no event will Landlord be liable for a brokerage commission
in connection with the proposed assignment or sublet. If Landlord recaptures the
Recapture Space, Tenant shall be solely responsible, at its cost and expense,
for :all alterations required to separate the Recapture Space from the balance
of the Premises, including, but not limited to, construction of demising walls
and separation of utilities.
(b) In the event that the Landlord elects not to terminate the Lease as to
the Recapture Space, Tenant may assign this Lease or sublet the whole or any
portion of the Premises, subject to Landlord's prior written consent, which
consent will not be unreasonably withheld, conditioned or delayed, subject to
the following terms and conditions and provided the proposed occupancy is in
keeping with that of a first-class office building:
i) Tenant will provide to Landlord the name, address, nature of the
business and evidence of the `financial condition of the proposed assignee or
sublessee;
ii) The assignee will assume, by written instrument, all of the
obligations of the Tenant under this Lease, and a copy of such assumption
agreement will be furnished to Landlord within ten (10) days of its execution.
No further assignment of this Lease or subletting all or any part of the
Premises will be permitted;
iii) Each sublease will provide that sublessee's rights will be no
greater than those of Tenant, and that the sublease is subject and subordinate
to this Lease and to the matters to which this Lease is or will be subordinate,
and that in the event of default by Tenant under this Lease, Landlord may, at
its option, take over all of the right, title and interest of Tenant, as
sublessor, under such sublease, and such sublessee will, at Landlord's option,
attorn to Landlord pursuant to the terms of such sublease, except that Landlord
will not (i) be liable for any previous act or omission of Tenant under such
sublease or, (ii) be subject to any offset not expressly provided for in this
Lease or by any previous prepayment of more than one month's rent;
iv) The liability of Tenant and each assignee will be joint, several
and primary for the observance of all the provisions, obligations and
undertakings of this Lease, including the payment of Fixed Basic Rent and
Additional Rent through the entire Term, as the same may be renewed, extended or
otherwise modified;
v) Tenant will promptly pay to Landlord any consideration received for
any assignment or all of the rent (fixed basic rent and additional rent) and any
other consideration payable by the subtenant to Tenant under or in connection
with a sublease, as and when received, in excess of the Fixed Basic Rent
required to be paid by Tenant for the area sublet;
vi) The acceptance by Landlord of any rent from the assignee or from
any subtenant or the failure of Landlord to insist upon strict performance of
any of the terms, conditions and covenants of this Lease will release neither
Tenant, nor any assignee assuming this Lease, from the Tenant's obligations set
forth in this Lease;
vii) The proposed assignee or subtenant is not then an occupant of any
part of the Building or any other building then owned by Landlord or its
affiliates within a five-mile radius of the Building;
viii) The proposed assignee or subtenant is not an entity or a person
or an affiliate of an entity with whom Landlord is or has been, within the
preceding twelve (12) month period, negotiating to lease space in the Building
or any other building owned by Landlord or its affiliates within a five-mile
radius of the Building;
ix) There will not be more than one (1) subtenant in the Premises;
x) Tenant will not advertise the subtenancy for less than Landlord's
then current market rent for the Premises;
xi) Tenant will pay Landlord a ONE THOUSAND FIVE HUNDRED AND 00/100
DOLLAR ($1,500.00) administrative fee for each request for consent to any sublet
or assignment simultaneously with Tenant's request for consent to a specific
sublet or assignment; and
xii) The proposed assignee or subtenant will use the Premises for the
Permitted Use only.
c) If Tenant is a corporation (other than a corporation whose stock is
listed and traded on a nationally recognized stock exchange), the transfer
(however accomplished, whether in a single transaction or in a series of related
or unrelated transactions) of a majority of the issued and outstanding stock [or
any other mechanism such as, by way of example, the issuance of additional
stock, a stock voting agreement or change in class(es) of stock which results in
a change of control of Tenant], and if Tenant is a partnership, joint venture or
limited liability company (collectively "Entity"), the transfer (by one or more
transfers) of an interest in the distributions of profits and losses of such
Entity (or other mechanism, such as, by way of example, the creation of
additional partnership or limited liability company interests) which results in
a change of control of such Entity will be deemed an assignment of this Lease,
subject to provisions of this Article.
Notwithstanding anything contained in this Lease to the contrary, Tenant may
assign this Lease or sublet all or any portion of the Premises to (i) any
corporation or other Entity directly or indirectly controlling or controlled by
Tenant or under common control with Tenant, or (ii) any successor by merger,
consolidation, corporate reorganization or acquisition of all or substantially
all of the assets of Tenant (any transaction referred to in clauses (i) or (ii)
hereof will be a "Permitted Transfer") provided that the net worth of any
transferee of a Permitted Transfer will not be less than the greater of (A) the
net worth of Tenant immediately preceding the Permitted Transfer or (B) the net
worth of Tenant as of the date of the execution and delivery of this Lease by
both parties. Any other assignment or subleasing of Tenant's interest under this
Lease will be subject to Landlord's approval, which approval will not be
unreasonably withheld, conditioned or delayed.
d) Except as specifically set forth above, if any portion of the Premises
or of Tenant's interest in this Lease is acquired by any other person or entity,
whether by assignment, mortgage, sublease, transfer, operation of law or act of
the Tenant, or if Tenant pledges its interest in this Lease or in any security
deposit required hereunder, Tenant will be in default.
7. COMPLIANCE WITH RULES AND REGULATIONS:
Tenant will observe and comply with the rules and regulations set forth in
Exhibit B and with such further reasonable rules and regulations as Landlord may
prescribe from time to time.
8. DAMAGES TO BUILDING:
If the Building is damaged by fire or any other cause to such extent that the
cost of restoration, as reasonably estimated by Landlord, will equal or exceed
twenty-five (25%) percent of the replacement value of the Building (exclusive of
foundations) just prior to the occurrence of the damage, then Landlord may, no
later than the sixtieth (60th) day following the damage, give Tenant a notice
electing to terminate this Lease. In such event, this Lease will terminate on
the thirtieth (30th) day after the giving of such notice, and Tenant will
surrender possession of the Premises on or before such date. If this Lease is
not terminated pursuant to this Article, Landlord will restore the Building and
the premises with reasonable promptness, subject to Force Majeure, as defined in
Article 30(e) below, and subject to the availability and adequacy of the
insurance proceeds. Landlord shall not be obligated to restore fixtures and
improvements owned by Tenant.
In any case in which use of the Premises is affected by any damage to the
Building, there will be either an abatement or an equitable reduction in Fixed
Basic Rent, depending on the period for which and the extent to which the
Premises are not reasonably usable for general office use. The words
"restoration" and "restore" as used in this Article will include repairs.
9. EMINENT DOMAIN:
If Tenant's use of the Premises is materially affected due to the taking by
eminent domain of (a) the Premises or any part thereof or (b) any other part of
the Building; then, in either event, this Lease will terminate on the date when
title vests pursuant to such taking. The Fixed Basic Rent, and any Additional
Rent, will be apportioned as of such termination date and any Fixed Basic Rent
or Additional Rent, paid for any period beyond said date, will be repaid to
Tenant. Tenant will not be entitled to any part of the award for such taking or
any payment in lieu thereof, but Tenant may file a separate claim for any taking
of fixtures and improvements owned by Tenant which have not become the
Landlord's property, and for moving expenses, provided the same will, in no way,
affect or diminish Landlord's award. In the event of a partial taking which does
not effect a termination of this Lease but does deprive Tenant of the use of a
portion of the Premises, there will be either an abatement or an equitable
reduction in Fixed Basic Rent, depending on the period for which and the extent
to which the Premises are not reasonably usable for general office use.
10. LANDLORD'S REMEDIES ON DEFAULT:
If Tenant defaults in the payment of Fixed Basic Rent or any Additional Rent or
in the performance of any of the other covenants and conditions of this Lease or
permits the Premises to become deserted, abandoned or vacated, Landlord may give
Tenant notice of such default, and if Tenant does not cure any Fixed Basic Rent
or Additional Rent default within five (5) days or other default within fifteen
(15) days after the giving of such notice (or if such other default is of such
nature that it cannot be completely cured within such period, if Tenant does not
commence such curing within such fifteen (15) days and thereafter proceed with
reasonable diligence and in good faith to cure such default), then Landlord may
terminate this Lease or Tenant's right to possession upon not less than ten
(1.0) days notice to Tenant, and on the date specified in such notice Tenant's
right to possession of the Premises will cease, but Tenant will remain liable as
provided below in this Lease. If this Lease or Tenant's right to possession will
have been so terminated by Landlord, Landlord may at any time thereafter recover
possession of the Premises by any lawful means and remove Tenant or other
occupants and their effects. Landlord may, at Tenant's expense, relet all or any
part of the Premises and may make such alterations, decorations or other changes
to the Premises as Landlord considers appropriate in connection with such
reletting, without relieving Tenant of any liability under this Lease. Tenant
shall pay to Landlord, on demand, such expenses as Landlord may incur,
including, without limitation, court costs and reasonable attorney's fees and
disbursements, in enforcing the performance of any obligation of Tenant `under
this Lease.
Tenant hereby waives all right of redemption to which Tenant or any person under
Tenant might be entitled by any Legal Requirement. Tenant hereby further waives
any and all rights to invoke N.J.S.A. 2A:18-60.
11. DEFICIENCY:
In any case where Tenant has defaulted and Landlord has recovered possession of
the Premises or terminated this Lease or Tenant's right to possession, Tenant's
obligation to pay Landlord all the Fixed Basic Rent and Additional Rent up to
and including the Expiration Date will not be discharged or otherwise affected.
Landlord will have all rights and remedies available to Landlord at law and in
equity by reason of Tenant's default, and may periodically ▇▇▇ to collect the
accrued obligations of the Tenant together with interest at Prime plus four
percent per annum from the date owed to the date paid, but in no event greater
than the maximum rate of interest permitted by law.
Alternatively, in any case where Landlord has recovered possession of the
Premises by reason of Tenant's default, Landlord may at Landlord's option, and
at any time thereafter, and without notice or other action by Landlord, and
without prejudice to any other rights or remedies it might have hereunder or at
law or equity, become entitled, to recover from Tenant, as damages for such
breach, in addition to such other sums herein agreed to be paid by Tenant, to
the date of re-entry, expiration and/or dispossess, an amount equal to the
difference between the Fixed Basic Rent and Additional Rent reserved in this
Lease from the date of such default to the date of Expiration Date of the
original Term and the then fair and reasonable rental value of the Premises for
the same period. Said damages shall become due and payable to Landlord
immediately upon such breach of this Lease and without regard to whether this
Lease be terminated or not, and if this Lease be terminated, without regard to
the manner in which it is terminated. In the computation of such damages, the
difference between an installment of Fixed Basic Rent and Additional Rent
thereafter becoming due and the fair and reasonable rental value of the Premises
for the period for which such installment was payable shall be discounted to the
date of such default at the rate of not more than six percent (6%) per annum.
12. SUBORDINATION:
This Lease will, at the option of any holder of any underlying lease or holder
of any first mortgage or first trust deed, be subject and subordinate to any
such underlying lease and to any first mortgage or first trust deed which may
now or hereafter affect the Real Property, and also to all renewals,
modifications, consolidations and replacements of such underlying leases and
first mortgage or first trust deed. Although no instrument or act on the part of
Tenant will be necessary to effectuate such subordination, Tenant will,
nevertheless, execute and deliver such further instruments confirming such
subordination of this Lease as may be desired by the holders of such first
mortgage or first trust deed or by any of the lessors under such underlying
leases. If any underlying lease to which this Lease is subject terminates,
Tenant will, on timely request, recognize and acknowledge the owner of the Real
Property as Tenant's landlord under this Lease.
13. SECURITY DEPOSIT:
Tenant will deposit with Landlord on the signing of this Lease by Tenant, the
Security Deposit for the performance of Tenant's obligations under this Lease,
including the surrender of possession of the Premises to Landlord in the
condition required under this Lease. If Landlord applies all or any part of the
Security Deposit to cure any default of Tenant, Tenant will, on demand, deposit
with Landlord the amount so applied so that Landlord will have the full Security
Deposit on hand at all times during the Term. In the event of a bona fide sale
of the Real Property, subject to this Lease, Landlord will transfer the Security
Deposit to the purchaser, and Landlord will be considered released by Tenant
from all liability for the return of the Security Deposit; and Tenant agrees to
look solely to the new landlord for the return of the Security Deposit, and it
is agreed that this will apply to every transfer or assignment made of the
Security Deposit to a new landlord.' Provided Tenant is not in default, the
Security Deposit (less any portions of it previously used, applied or retained
by Landlord), will be returned to Tenant after the expiration or sooner
termination of this Lease and delivery of the entire Premises to Landlord in
accordance with the provisions of this Lease. Tenant will not assign, pledge or
otherwise encumber the Security Deposit, and Landlord will not be bound by any
such assignment, pledge or encumbrance.
Tenant may deliver to Landlord, in lieu of the cash deposit set forth in this
Article an irrevocable negotiable letter of credit issued by and drawn upon such
commercial bank selected by Tenant and acceptable to Landlord (at its sole
discretion) and in form and content acceptable to Landlord (also at its sole
discretion) (the form attached hereto as Exhibit I shall be deemed acceptable to
Landlord) for the account of Landlord, in the sum of FORTY-SIX THOUSAND EIGHT
HUNDRED THIRTY-SEVEN AND 50/100 DOLLARS ($46,837.50); Said letter of credit
shall be for a term of not less than one (1) year and shall be renewed by Tenant
(without notice from Landlord) no later than sixty (60) days prior to its
expiration, and the expiration of each replacement thereof, until Landlord shall
be required to return the security to Tenant pursuant to the terms of this Lease
but in no event earlier than ninety (90) days after the Expiration Date, and
each such renewed letter of credit shall be delivered to Landlord no later than
sixty (60) days prior to the expiration of the letter of credit then held by
Landlord. If any portion of the security deposit shall be utilized by Landlord
in the manner permitted by this Lease, Tenant shall, within five (5) days after
request by Landlord, replenish the security account by depositing with Landlord,
in cash or by letter of credit, an amount equal to that utilized by Landlord.
Failure of Tenant to comply strictly with the provisions of this Article shall
constitute a material breach of this Lease and Landlord shall be entitled to
present the letter of credit then held by it `for payment (without notice to
Tenant). If the cash security is converted into a letter of credit, the
provisions with respect to letters of credit shall apply (with the necessary
changes in points of detail) to such letter of credit deposit. In the event of a
bank failure or insolvency affecting the letter of credit, Tenant shall replace
same within twenty (20) days after being requested to do so by Landlord.
14. RIGHT TO CURE TENANT'S BREACH:
If Tenant breaches any covenant or condition of this Lease, Landlord may, on
prior notice to Tenant (except that no notice need be given in case of
emergency), cure such breach at the expense of Tenant, and the reasonable amount
of all expenses, including attorney's fees, incurred by Landlord in so doing
(whether paid by Landlord or not) will be deemed payable on demand as Additional
Rent.
15. LIENS:
Tenant will not permit any lien or other encumbrance to be filed as a result of
any act or omission (or alleged act or omission) of Tenant. Tenant will, within
ten (10) days after notice from Landlord, discharge or satisfy by bonding or
otherwise any liens filed against Landlord or all or any portion of the Real
Property as a result of any such act or omission, including any lien or
encumbrance arising from contract or tort claims.
16. RIGHT TO INSPECT AND REPAIR:
Landlord or its designees may enter the Premises (but will not be obligated to
do so) at any reasonable time on reasonable notice to Tenant (except that no
notice need be given in case of emergency) for the purpose of: (i) inspection;
(ii) performance of any work or the making of such repairs, replacements or
additions in, to, on and about the Premises or the Building, as Landlord deems
necessary or desirable; or (iii) showing the Premises to prospective purchasers,
mortgages and, during the last twelve (12) months of the Term, prospective
tenants. Tenant will provide Landlord or its designees free and unfettered
access to any mechanical or utility rooms, conduits, risers or the like located
within the Premises. Landlord or any prospective tenant shall have the right to
enter the space to perform inspections, surveys, measurements or such other
reasonable activities as may be necessary to prepare the Premises for occupancy
by the succeeding tenant. Tenant will have no claims, including claims for
interruption of Tenant's business, or cause of action against Landlord by reason
of entry for such purposes.
17. SERVICES TO BE PROVIDED BY LANDLORD:
a) Landlord will furnish to the Premises (i) electricity for normal
lighting and ordinary office machines, (ii) during Building Hours, HVAC required
for the reasonable use and occupancy of the Premises, and (iii) janitorial
service (as set forth in Exhibit D), all in a manner comparable to that of
similar buildings in the area. In addition, Landlord shall provide Common
Facilities lighting at the Real Property during Building Hours and for such
additional hours as, in Landlord's judgment, is necessary or desirable to insure
proper operation of the Real Property.
b) Tenant will be entitled to make use of HVAC beyond the Building Hours,
at Tenant's sole cost and expense, provided Tenant has notified Landlord by 3:00
p.m. on the day that Tenant will require said overtime use if said overtime use
is required on any weekday, and by 3:00 p.m. on Friday for Saturday and/or
Sunday overtime use. Tenant will pay Landlord the HVAC After Hours Charge (as
defined in the Basic Lease Provisions) for HVAC beyond the Building Hours.
18. TENANT'S ESTOPPEL:
Tenant will, from time to time, on not less than ten (10) days prior written
request by Landlord, execute, acknowledge and deliver to Landlord an estoppel
certificate containing such information as Landlord may reasonably request.
19. HOLDOVER TENANCY:
Tenant agrees that it must surrender possession of the Premises to Landlord on
the Expiration Date or earlier termination of the Term. Tenant agrees to
indemnify and hold Landlord harmless from and against all liabilities,
obligations, damages, penalties, claims, costs, charges and expenses, including
attorneys' fees, resulting from any delay by Tenant in so surrendering the
Premises, including any claims made by any succeeding tenant based on such
delay. Tenant agrees that if possession of the Premises is not surrendered to
Landlord on the Expiration Date or earlier termination of the Term, then Tenant
agrees to pay Landlord as liquidated damages for each month and for any portion
of a month during which Tenant holds over in the Premises after the Expiration
Date or earlier termination of the Term, a sum equal to 150% of the average
Fixed Basic Rent and Additional Rent which was payable per month under this
Lease during the last three months of the Term for the first month and 200% of
the aforesaid average Fixed Basic Rent and Additional Rent for each month and
for any portion of a month thereafter. Such liquidated damages shall not limit
Tenant's indemnification obligation with respect to claims made by any
succeeding tenant based on Tenant's failure or refusal to surrender the Premises
to Landlord on the Expiration Date or sooner termination of the Term. Nothing
contained herein shall be deemed to authorize Tenant to remain in occupancy of
the Premises after the Expiration Date or sooner termination of the Term.
20. LANDLORD'S WORK; COMMENCEMENT:
a) Landlord agrees that, prior to the Commencement Date, it will perform
work in the Premises in accordance with Exhibit C of this Lease (the "Work").
b) A satisfactory inspection of the Work by the applicable governmental
authority allowing the Premises to be legally occupied, which may be later
evidenced by a (temporary or final) Certificate of Occupancy (although the date
of issuance may be other than the Commencement Date), will constitute sufficient
evidence to demonstrate that Landlord has performed the Work and the Term has
commenced.
c) Notwithstanding anything contained in this Lease to the contrary, if
Tenant (or anyone having rights under or through Tenant) shall occupy all or any
part of the Premises prior to the date Landlord has completed the Work, then the
Commencement Date shall be deemed to occur on such date that Tenant (or anyone
claiming under or through Tenant) shall occupy all or any part of the Premises.
d) Notwithstanding anything contained in this Lease to the contrary, if
Landlord, for any reason whatsoever cannot deliver possession of the Premises to
Tenant on the Commencement Date set forth in the Basic Lease Provisions, this
Lease will not be void or voidable, nor will Landlord be liable to Tenant for
any loss or damage resulting therefrom, but in that event, the Term will
commence on the earlier of: (i) the date Landlord delivers possession of the
Premises to Tenant or (ii) the date Landlord would have delivered possession of
the Premises to Tenant but for any reason attributable to Tenant.
e) Tenant, at its sole expense, with the cooperation of Landlord, will
apply to the Planning Board for a use permit and diligently pursue obtaining
same. Tenant recognizes that the procurement of the use permit is a condition
precedent to Landlord obtaining a building permit to undertake the performance
of the Work. This Lease is subject and contingent upon Tenant obtaining a use
permit and Landlord obtaining a building permit for the Work. In the event a use
permit is not obtained, or having obtained a use permit, a building permit is
not issued, then Landlord shall notify Tenant of such fact, and thereafter this
Lease shall be void, without further liability of either party to the other
except to return to Tenant the prepaid rent, if any, and the security deposit.
21. OVERDUE RENT CHARGE/INTEREST:
a) Tenant will pay an "Overdue Rent Charge" of eight percent (8%) of any
installment of Fixed Basic Rent or Additional Rent which Tenant fails to pay
within five (5) days after the due date thereof, to cover the extra expense
involved in handling non-payments and/or delinquent payments. The Overdue Rent
Charge will constitute Additional Rent and an agreed upon amount of liquidated
damages and not a penalty. Notwithstanding anything in this Article to the
contrary, Landlord shall waive an Overdue Rent Charge one time during each Lease
Year provided, however, the installment of Fixed Basic Rent or Additional Rent
so due is paid by the fifteenth (15th) day of the month. Payment received
subsequent to the fifteenth (15th) of the month during these grace periods shall
require an Overdue Rent Charge to be reassessed and added to Tenant's
obligations hereunder.
b) Any amount owed by Tenant to Landlord which is not paid when due will
bear interest at the lesser of (i) the rate of two percent (2%) per month from
the due date of such amount, or (ii) maximum legal interest rate permitted by
law. The payment of interest on such amounts will not extend the due date of any
amount owed.
22. INSURANCE:
a) TENANT'S INSURANCE. On or before the Commencement Date or Tenant's prior
entry into the Premises, Tenant will obtain and have in full force and effect,
insurance coverage as follows:
(i) workers' compensation in an amount required by law; (ii)
commercial general liability with a per occurrence limit of Three Million
Dollars ($3,000,000) and a general aggregate of Five Million Dollars
($5,000,000) for bodily injury and property damage on an occurrence basis
and containing an endorsement naming Landlord, its agents, designees and
lender as additional insureds, an aggregate limit per location endorsement,
and no modification that would make Tenant's policy excess or contributing
with Landlord's liability insurance; (iii) all risk property insurance for
the full replacement value of all of Tenant's furniture, fixtures,
equipment, alterations, improvements or additions that do not become
Landlord's property upon installation; and (iv) any other form or forms of
insurance or any increase in the limits of any of the coverages described
above or other forms of insurance as Landlord or the mortgagees or ground
lessors (if any) of Landlord may reasonably require from time to time if in
the reasonable opinion of Landlord or said mortgagees or ground lessors
said coverage and/or limits become inadequate or less than that commonly
maintained by prudent tenants with similar uses in similar buildings in the
area. All policies obtained by Tenant will be issued by carriers having
ratings in Best's Insurance Guide ("Best") of A and VIII, or better (or
equivalent rating by a comparable rating agency if Best no longer exists)
and licensed in the State. All such policies must be endorsed to be primary
and noncontributing with the policies of Landlord being excess, secondary
and noncontributing. No policy will be canceled, nonrenewed or materially
modified without thirty (30) days' prior written notice by the insurance
carrier to Landlord. If the forms of policies, endorsements, certificates,
or evidence of insurance required by this Article are superseded or
discontinued, Landlord may require other equivalent or better forms.
Evidence of the insurance coverage required to be maintained by Tenant,
represented by certificates of insurance issued by the insurance carrier,
must be furnished to Landlord prior to Tenant occupying the Premises and at
least thirty (30) days prior to the expiration of current policies. Copies
of all endorsements required by this Article must accompany the
certificates delivered to Landlord. The certificates will state the amounts
of all deductibles and self-insured retentions and that Landlord will be
notified in writing thirty (30) days prior to cancellation, material
change, or non-renewal of insurance. If requested in writing by Landlord,
Tenant will provide to Landlord a certified copy of any or all insurance
policies or endorsements required by this Article.
b) Tenant will not do or allow anything to be done on the Premises which
will increase the rate of fire insurance on the Building from that of a general
office building. If any use of the Premises by Tenant results in an increase in
the fire insurance rate(s) for the Building, Tenant will pay Landlord, as
Additional Rent, any resulting increase in premiums. Tenant's insurance
obligations set forth in Section 23 a) (i) and (ii) above shall continue in
effect throughout the Term and after the Term as long as Tenant, or anyone
claiming by, through or under Tenant, occupies all or any part of the Premises.
c) WAIVER OF CLAIMS. Landlord and Tenant hereby waive all claims and
release each other and each other's employees, agents, customers and invitees
from any and all liability for any loss, damage or injury to property occurring
in, on, about or to the Premises or the Building by reason of fire or other
casualty, regardless of cause, including the negligence of Landlord or Tenant
and their respective employees, agents, customers and invitees, and agree that
the property insurance carried by either of them will contain a clause whereby
the insurer waives its right of subrogation against the other party. Each party
to this Lease will give to its insurance company notice of the provisions of
this Section 23 c) and have such insurance policies properly endorsed, if
necessary, to prevent the invalidation of such insurance by reason of the
provisions of this Section c). Each party shall bear the risk of its own
deductibles. Landlord and Tenant acknowledge that the insurance requirements of
this Lease reflect their mutual recognition and agreement that each party will
look to its own insurance and that each can best, insure against loss to its
property and business no matter what the cause. If Tenant fails to maintain
insurance or self insures for loss including, without limitation, business
interruption, Tenant shall be deemed to have released Landlord for all loss or
damage which would have been covered if Tenant had so insured.
d) BUILDING INSURANCE. Landlord will at all times during the Term carry a
policy of insurance which insures the Building, including the Premises and the
Work, if any, against loss or damage by fire or other casualty (namely, the
perils against which insurance is afforded by a standard fire insurance policy);
provided, however, that Landlord will not be responsible for, and will not be
obligated to insure against, any loss of or damage to any personal property or
trade fixtures of Tenant or any alterations which Tenant may make to the
Premises or any loss suffered by Tenant due to business interruption. All
insurance maintained by Landlord pursuant to this Article may be effected by
blanket insurance policies.
23. INDEMNITY:
Tenant will defend, indemnify and hold Landlord and its agents harmless from and
against any and all claims, actions or proceedings, costs, expenses and
liabilities, including attorneys fees and disbursements incurred in connection
with each such claim, action or proceeding, whether in contract or tort, arising
from Tenant's use and occupancy of the Premises, including Tenant's negligent
acts or omissions at the Real Property. In case any action or proceeding be
brought against Landlord by reason of any such claim, Tenant, upon notice from
Landlord, will, at Tenant's expense, resist and defend such action or proceeding
with counsel acceptable to Landlord.
24. BROKER:
Tenant represents and warrants to the Landlord that no broker brought about this
transaction, except Tenant's Broker and Tenant agrees to indemnify and hold
Landlord harmless from any and all claims of any broker(s) (other than Tenant's
Broker) arising out of or in connection with the negotiations of or entering
into of this Lease by Tenant and Landlord. Landlord represents and warrants to
the Tenant that no broker brought about this transaction, except Tenant's Broker
and Landlord agrees to indemnify and hold Tenant harmless from any and all
claims of any broker(s) (including Tenant's Broker) claiming to have dealt with
Landlord arising out of or in connection with the negotiations of or entering
into of this Lease by Tenant and Landlord.
25. PERSONAL LIABILITY:
There will be no personal liability on the part of Landlord, its constituent
members (including officers, directors, partners, members and trustees) and
their respective successors and assigns or any mortgagee in possession, with
respect to any of the terms, covenants and conditions of this Lease, and Tenant
will look solely to the equity of Landlord in the Building for the satisfaction
of each and every remedy of Tenant in the event of any breach by Landlord of any
of the terms of this Lease to be performed by Landlord, such exculpation of
liability to be absolute and without any exceptions whatsoever.
26. NOTICES:
Any notice by either party to the other shall be in writing and shall be deemed
to have been duly given only if (i) delivered personally or (ii) sent by
registered mail or certified mail return receipt requested in a postage paid
envelope or (iii) sent by nationally recognized overnight delivery service, if
to Tenant, at the Building; if to Landlord, at Landlord's address as set forth
above to the attention of President and Chief Executive Officer, with a copy to
the attention of the Executive Vice President and General Counsel; or, to either
at such other address as Tenant or Landlord, respectively, may designate in
writing. Notice shall be deemed to have been duly given, if delivered
personally, on delivery thereof, if mailed, upon the seventh (7th) day after the
mailing thereof or if sent by overnight delivery service, the next business day.
27. AUTHORITY:
The signatories on behalf of Tenant represent and warrant that they are
authorized to execute this Lease, and if Tenant is a corporation or other
Entity, Tenant will, within fifteen (15) days of Landlord's request, provide
Landlord with a resolution confirming the authorization. Tenant represents and
warrants to Landlord (i) that neither Tenant nor any person or entity that
directly owns a ten percent (10%) or greater equity interest in Tenant nor any
of its officers, directors or managing members (collectively, "Tenant and Others
in Interest") is a person or entity with whom U.S. persons or entities are
restricted from doing business under regulations of the Office of Foreign Asset
Control ("OFAC") of the Department of the Treasury (including those named on
OFAC's Specially Designated and Blocked Persons List) or under any statute,
executive order (including Executive Order 13224 signed on September 24, 2001
(the "Executive Order") and entitled "Blocking Property and Prohibiting
Transactions with Persons Who Commit, Threaten to Commit, or Support
Terrorism"), or other governmental action, (ii) that Tenant and Others in
Interest's activities do not violate the International Money Laundering
Abatement and Financial Anti-Terrorism Act of 2001 or the regulations or orders
promulgated thereunder (as amended from time to time, the "Money Laundering
Act"), and (iii) that throughout the Term Tenant will comply with the Executive
Order and the Money Laundering Act.
28. PARKING SPACES
Tenant's occupancy of the Premises will include the use of the parking spaces
set forth in the Basic Lease Provisions. Tenant will, upon request, promptly
furnish to Landlord the license numbers of the cars operated by Tenant and its
subtenants, invitees, concessionaires, licensees and their respective officers,
agents and employees. If any vehicle of Tenant, or of any subtenant, invitee,
licensee, concessionaire, or their respective officers, agents or employees. is
parked in any part of the Real Property other than those portions of the parking
area(s) designated for this purpose by Landlord, or if Tenant shall exceed the
number of parking spaces allocated to Tenant in the Basic Lease Provisions,
then, in addition to Landlord's rights and remedies provided in this Lease,
Tenant will pay to Landlord $100.00 per day.
29. RELOCATION:
Landlord, at its expense, at any time before or during the Term, may relocate
Tenant from the Premises to space of reasonably comparable size, utility and
improvements ("Relocation Space") within the Building or business park of which
the Building is a part upon sixty (60) days prior notice to Tenant. From and
after the date of the relocation, the Fixed Basic Rent and Tenant's Percentage
will be adjusted based upon the gross rentable area of the Relocation Space; but
in no event will the Fixed Basic Rent or Tenant's Percentage increase as a
result of such relocation. Landlord will pay Tenant the actual, reasonable out
of pocket moving costs incurred by Tenant in connection with such relocation.
Landlord will have no liability for any interference with Tenant's business
resulting from such relocation.
30. MISCELLANEOUS:
a) If any of the provisions of this Lease, or the application of such
provisions, will be invalid or unenforceable, the remainder of this Lease will
not be affected, and this Lease will be valid and enforceable to the fullest
extent permitted by law.
b) The submission of this Lease for examination does not constitute a
reservation of, or option for, the Premises, and this Lease is submitted to
Tenant for signature with the understanding that it will not bind Landlord
unless and until it has been executed by Landlord and delivered to Tenant or
Tenant's attorney or agent and until the holder of any mortgage will have
approved this Lease if such approval is required under the terms of such
mortgage.
c) No representations or promises will be binding on the parties to this
Lease except those representations and promises expressly contained in the
Lease.
d) The article headings in this Lease are intended for convenience only and
will not be taken into consideration in any construction or interpretation of
this Lease or any of its provisions.
e) Force Majeure means and includes those situations beyond either party's
reasonable control, including acts of God; strikes; inclement weather; or, where
applicable, the passage of time while waiting for an adjustment of insurance
proceeds. Any time limits required to be met by either party hereunder, whether
specifically made subject to Force Majeure or not, except those related to the
surrender of the Premises by the end of the Term or payment of Fixed Basic Rent
or Additional Rent, will, unless specifically stated to the contrary elsewhere
in this Lease, be automatically extended by the number of days by which any
required performance is delayed due to Force Majeure.
f) No payment by Tenant or receipt by Landlord of a lesser amount than the
Fixed Basic Rent and Additional Rent payable hereunder will be deemed to be
other than a payment on account of the earliest stipulated Fixed Basic Rent and
Additional Rent, nor will any endorsement or statement on any check or any
letter accompanying any check or payment of Fixed Basic Rent or Additional Rent
be deemed an accord and satisfaction, and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance of such
Fixed Basic Rent and Additional Rent or to pursue any other remedy provided
herein or by law. All obligations of Tenant under this Lease shall survive the
expiration or earlier termination of this Lease.
g) No failure by either party to insist upon the strict performance of any
covenant, agreement, term or condition of this Lease, or to exercise any right
or remedy upon a breach of any such covenant, agreement, term or condition, and
no acceptance by Landlord of full or partial rent during the continuance of any
such breach by Tenant, will constitute a waiver of any such breach or of such
covenant, agreement, term or condition. No consent or waiver, express or
implied, by either party to or of any breach of any covenant, condition or duty
of the other party will be construed as a consent or waiver to or of any other
breach of the same or any other covenant, condition or duty, unless such consent
or waiver is in writing and signed by the party granting such consent or waiver.
h) Landlord covenants that if, and so long as, Tenant pays Fixed Basic Rent
and any Additional Rent as required under this Lease, and performs Tenant's
other covenants under the Lease, Landlord will do nothing to affect Tenant's
right to peaceably and quietly have, hold and enjoy the Premises for the Term,
subject to the provisions of this Lease.
i) The provisions of this Lease will apply to, bind and inure to the
benefit of Landlord and its respective heirs, successors, legal representatives
and assigns. The term "Landlord" as used in this Lease means only the owner or a
master lessee of the Building, so that in the event of any sale of the Building
or of any master lease thereof, the Landlord named herein will be and hereby is
entirely freed and relieved of all covenants and obligations of Landlord under
this Lease accruing after such sale, and it will be deemed without further
agreement that the purchaser or the new master lessee of the Building has
assumed and agreed to carry out any and all covenants and obligations of
Landlord accruing under this Lease after such sale.
j) Landlord reserves the right unilaterally to alter Tenant's ingress and
egress to the Building or make any change in operating conditions to restrict
pedestrian, vehicular or delivery ingress and egress to a particular location,
or at any time close temporarily any common Facilities to make repairs or
changes therein or to effect construction, repairs or changes within the
Building, or to discourage non-tenant parking, and may do such other acts in and
to the Common Facilities as in Landlord's sole judgment may be desirable to
improve their convenience.
k) To the extent such waiver is permitted by law, the parties waive trial
by jury in any action or proceeding brought in connection with this Lease or the
Premises. This Lease will be governed by the laws of the State (without the
application of any conflict of laws principles), and any action or proceeding in
connection with this Lease shall be decided in the courts of the State.
l) Tenant agrees not to disclose the terms, covenants, conditions or other
facts with respect to this Lease, including the Fixed Basic Rent and Additional
Rent, to any person, corporation, partnership, association, newspaper,
periodical or other entity, except to Tenant's accountants or attorneys (who
shall also be required to keep the terms of this Lease confidential) or as
required by law. This non-disclosure and confidentiality agreement will be
binding upon Tenant without limitation as to time, and a breach of this
paragraph will constitute a material breach under this, Lease.
m) Any State statutory provisions dealing with termination rights due to
casualty, condemnation, delivery of possession or any other matter dealt with by
this Lease are superseded by the terms of this Lease.
n) Whenever it is provided that Landlord will not unreasonably withhold,
condition or delay consent or approval or will exercise its judgment reasonably
(such consent or approval and such exercise of judgment being collectively
referred to as "consent"), if Landlord delays, conditions or refuses such
consent, Tenant waives any claim for money damages (including any claim for
money damages by way of setoff, counterclaim or defense) based upon any claim or
assertion that Landlord unreasonably withheld, conditioned or delayed consent.
Tenants sole remedy will be specific performance. Failure on the part of Tenant
to seek relief within 60 days after the date upon which Landlord has withheld,
conditioned or delayed its consent will be 4eemed a waiver of any right to
dispute the reasonableness of such withholding, conditioning or delaying of
consent.
o) Notwithstanding anything to the contrary contained in this Lease, in no
event will Landlord or Tenant be liable to the other for the payment of
consequential, punitive or speculative damages, except as provided in Article 19
hereof.
31. OPTION TO RENEW:
(a) if the term of this Lease shall then be in full force and effect and Tenant
has complied fully with its obligations hereunder, Tenant shall have the
option to extend the term of this Lease for a period of five (5) years (the
"Renewal Term") commencing on the day immediately following the Expiration
Date, provided however that Tenant shall give Landlord notice of its
election to extend the term no earlier than eighteen (18) months prior to
the Expiration Date nor later than fifteen (15) months prior to the
Expiration Date of the term. TIME BEING OF THE ESSENCE in connection with
the exercise of Tenant's option pursuant to this Article.
(b) Such extension of the term of this Lease shall be upon the same covenants
and conditions, as herein set forth except for the Fixed Basic Rent (which
shall be determined in the manner set forth below), and except that Tenant
shall have no further right to extend the term of this Lease after the
exercise of the single option described in paragraph (a) of this Article.
If Tenant shall duly give notice of its election to extend the term of this
Lease, the Renewal Term shall be added to and become a part of the Term of
this Lease (but shall not be considered a part of the initial Term), and
any reference in this Lease to the "Term of this Lease", the "Term hereof",
or any similar expression shall be deemed to include such Renewal Term,
and, in addition, the term "Expiration Date" shall thereafter mean the last
day of such Renewal Term. Landlord shall have no obligation to perform any
alteration or preparatory or other work in and to the Premises or to make
any allowance toward the cost of any work performed therein by Tenant and
Tenant shall continue possession thereof in its "as is" condition.
(c) If Tenant exercises its option for the Renewal Term, the Fixed Basic Rent
during the Renewal Term shall be the fair market rent for the Premises, as
hereinafter defined.
(d) Landlord and Tenant shall use their best efforts, within thirty (30) days
after Landlord receives Tenant's notice of its election to extend the Term
of this Lease for the Renewal Term ("Negotiation Period"), to agree upon
the Fixed Basic Rent to be paid by Tenant during the Renewal Term. If
Landlord and Tenant shall agree upon the Fixed Basic Rent for the Renewal
Term, the parties shall promptly execute an amendment to this Lease stating
the Fixed Basic Rent for the Renewal Term.
(e) If the parties are unable to agree on the Fixed Basic Rent for the Renewal
Term during the Negotiation Period, then within fifteen (15) days after
notice from the other party, given after expiration of the Negotiation
Period, each party, at its cost and upon notice to the other party, shall
appoint a person to act as an appraiser hereunder, to determine the fair
market rent for the Premises for the Renewal Term. Each such person shall
be a real estate broker or appraiser with at least ten years' active
commercial real estate appraisal or brokerage experience (involving the
leasing of office space as agent for both landlords and Tenants) in the
County of Bergen. If a party does not appoint a person to act as an
appraiser within said fifteen (15) day period, the person appointed by the
other party shall be the sole appraiser and shall determine the aforesaid
fair market rent. Each notice containing the name of a person to act as
appraiser shall contain also the person's address. Before proceeding to
establish the fair market rent, the appraisers shall subscribe and swear to
an oath fairly and impartially to determine such rent.
If the two appraisers are appointed by the parties as stated in the
immediately preceding paragraph, they shall meet promptly and attempt to
determine the fair market rent. If they are unable to agree within
forty-five (45) days after the appointment of the second appraiser, they
shall attempt to select a third person meeting the qualifications stated in
the immediately preceding paragraph within fifteen (15) days after the last
day the two appraisers are given to determine the fair market rent. If they
are unable to agree on the third person to act as appraiser within said
fifteen (15) day period, the third person shall be appointed by the
American Arbitration Association (the "Association"), upon the application
of Landlord or Tenant to the office of the Association nearest the
Building. The person appointed to act as appraiser by the Association shall
be required to meet the qualifications stated in the immediately preceding
paragraph. Each of the parties shall bear fifty percent (5 0%) of the cost
of appointing the third person and of paying the third person's fees. The
third person, however selected, shall be required to take an oath similar
to that described above.
The three appraisers shall meet and determine the fair market rent. A
decision in which two of the three appraisers concur shall be binding and
conclusive upon the parties. In deciding the dispute, the appraisers shall
act in accordance with the rules then in force of the Association, subject
however, to such limitations as may be placed on them by the provisions of
this Lease.
Notwithstanding the foregoing, in no event shall the Fixed Basic Rent
during the Renewal Term be less than the Fixed Basic Rent during the last
year of the Term of this Lease immediately preceding the Renewal Term.
(f) After the fair market rent for the Renewal Term has been determined by the
appraiser or appraisers and the appraiser or appraisers shall have notified
the parties, at the request of either party, both parties shall execute and
deliver to each other an amendment of this Lease stating the Fixed Basic
Rent for the Renewal Term.
(g) If the Fixed Basic Rent for the Renewal Term has not been agreed to or
established prior to the commencement of the Renewal Term, then Tenant
shall pay to Landlord an annual rent ("Temporary Rent") which Temporary
Rent shall be equal to one hundred twenty five percent (125%) of the Fixed
Basic Rent payable by Tenant for the last year of the Term immediately
preceding the Renewal Term. Thereafter, if the parties shall agree upon a
Fixed Basic Rent, or the Fixed Basic Rent shall be established upon the
determination of the fair market rent by the appraiser or appraisers, at a
rate at variance with the Temporary Rent (i) if such Fixed Basic Rent is
greater than the Temporary Rent, Tenant shall promptly pay to Landlord the
difference between the Fixed Basic Rent determined by agreement or the
appraisal process and the Temporary Rent, or (ii) if such Fixed Basic Rent
is less than the Temporary Rent, Landlord shall credit to Tenant's
subsequent monthly installments of Fixed Basic Rent the difference between
the Temporary Rent and the Fixed Basic Rent determined by agreement or the
appraisal process.
(h) In describing the fair market rent during the Renewal Term, the appraiser
or appraisers shall be required to take into account the rentals at which
leases are then being concluded (as of the last day of the Term) (for five
(5) year leases without renewal options with the Landlord and Tenant each
acting prudently, with knowledge and for self-interest, and assuming that
neither is under undue duress) for comparable space in the Building and in
comparable office buildings in the County of Bergen.
(i) The option granted to Tenant under this Article may be exercised only by
Tenant, its affiliates, permitted successors and assigns, and not by any
subtenant or any successor to the interest of Tenant by reason of any
action under the Bankruptcy Code, or by any public officer, custodian,
receiver, United States Trustee, trustee or liquidator of Tenant or
substantially all of Tenant's property. Tenant shall have no right to
exercise this option subsequent to the date Landlord shall have the right
to give the notice of termination referred to in Article 10 of the Lease
unless Tenant cures the default within the applicable grace period.
Notwithstanding the foregoing, Tenant shall have no right to extend the
term if, at the time it gives notice of its election (i) Tenant shall not
be in occupancy of substantially all of the Premises or (ii) the Premises
(or any part thereof) shall be the subject of a sublease. If Tenant shall
have elected to extend the term, such election shall, at the option of
Landlord, be deemed withdrawn if, at any time after the giving of notice of
such election and prior to the commencement of the Renewal Term, Tenant
shall sublease (all or any portion of) the Premises or assign the Lease.
32. RIGHT OF FIRST OFFER:
Provided this Lease is then in full force and effect and there exists no uncured
event of default, Landlord shall, not fewer than five (5) days before listing
any other space on the ground floor of the Building for marketing or otherwise
offering such space for lease to any third party, but after offering the space
to any other tenants of the Building having any prior rights of first offer
and/or notification of availability at the time of execution of this Lease, give
Tenant notice of the availability or expected availability of such space (an
"Availability Notice"). Any such Availability Notice shall include the date on
which such space will or is expected to become vacant, the rentable square
footage thereof, and a floor plan of the space. The receipt and all information
contained in any such Availability Notice shall be kept confidential by Tenant
and in no event shared with, or released by Tenant to, any other party or
parties other than to a Related Entity and Tenant's professional advisors who
agree to keep such information confidential (unless and to the extent Tenant may
be required to divulge such information by any Governmental Authority or in
response to a relevant discovery request in litigation or in litigation
instituted by Tenant against Landlord). The furnishing of an Availability Notice
to Tenant shall be solely for informational purposes to allow Tenant a limited
period of time within which to make an offer to Landlord for such space, and
shall confer no other right or any option on Tenant with respect to any such
space. Subject to furnishing Tenant with an Availability Notice as hereinbefore
provided, Landlord shall be free to lease or otherwise dispose of any available
space on the ground floor of the Building at any time and on any terms or
conditions which Landlord may elect in its sole discretion free and clear of any
rights, options or claims of Tenant whatsoever. This provision shall apply only
one (1) time during the Term of this Lease. Landlord shall have no liability to
Tenant for any failure of Tenant to reach an agreement with Landlord for the
leasing any of any space as to which Landlord gives Tenant an Availability
Notice.
EACH PARTY AGREES that it will not raise or assert as a defense to any
obligation under this Lease, or make any claim that this Lease is invalid or
unenforceable, due to any failure of this document to comply with ministerial
requirements, including requirements for corporate seals, attestations,
witnesses, notarizations or other similar requirements, and each party hereby
waives the right to assert any such defense or make any claim of invalidity or
unenforceability due to any of the foregoing.
THE PARTIES to this Lease have executed and delivered this Lease as of the
date set forth above.
LANDLORD: TENANT:
▇▇▇▇-▇▇▇▇ EAST LAKEMONT L.L.C. IVIVI TECHNOLOGIES, INC.
By: ▇▇▇▇-▇▇▇▇ Realty, L.P., member
By: ▇▇▇▇-▇▇▇▇ Realty Corporation, general partner
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------- ----------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President of Leasing Title: Vice Chairman and CEO
EXHIBIT A
---------
LOCATION OF PREMISES
[picture of available space]
EXHIBTI A-1
-----------
SITE PLAN - PARKING
[picture of parking spaces]
EXHIBIT B
---------
RULES AND REGULATIONS
1. OBSTRUCTION OF PASSAGEWAYS: Tenant will not: (i) obstruct the sidewalks,
entrance(s), passages, courts, elevators, vestibules, stairways, corridors
and other public parts of the Building, or (ii) interfere with the ability
of Landlord and other tenants to use and enjoy any of these areas, and
(iii) use them for any purpose other than ingress and egress.
2. WINDOWS: Tenant will not cover or obstruct windows in the Premises. No
bottles, parcels or other articles will be placed on the window ▇▇▇▇▇, in
the halls, or in any other part of the Building other than the Premises. No
article will be thrown out of the doors or windows of the Premises.
3. PROJECTIONS FROM BUILDING: No awnings, air-conditioning units or other
fixtures will be attached to the outside walls or the window ▇▇▇▇▇ of the
Building or otherwise affixed so as to project from the Building, without
the prior written consent of Landlord.
4. SIGNS: Tenant will not affix any sign or lettering to any part of the
outside of the Premises, or any part of the inside of the Premises so as to
be visible from the outside of the Premises, without the prior written
consent of Landlord. However, Tenant will have the right to place its name
on any door leading into the Premises, the size, color and style thereof to
be subject to the Landlord's approval. Tenant's name will be placed on the
Building directory. Tenant will not have the right to have additional names
placed on the Building directory without Landlords prior written consent.
5. FLOOR COVERING: Tenant will not lay linoleum or other similar floor
covering so that the same will come in direct contact with the floor of the
Premises. If linoleum or other similar floor covering is desired to be
used, an interlining of builder's deadening felt will first be fixed to the
floor by a paste or other material that may easily be removed with water.
use of cement or other similar adhesive material for this purpose is
expressly prohibited.
6. INTERFERENCE WITH OCCUPANTS OF BUILDING: Tenant will not make, or permit to
be made, any unseemly or disturbing noises or odors and will not interfere
with other tenants or those having business with them. Tenant will keep all
mechanical apparatus in the Premises free of vibration and noise which may
be transmitted beyond the limits of the Premises.
7. LOCK KEYS: No additional locks or bolts of any kind will be placed on any
of the doors or windows by Tenant. Tenant will, on the expiration or
earlier termination of Tenant's tenancy, deliver to Landlord all keys to
any space within the Building either furnished to or Otherwise procured by
Tenant, and in the event of the loss of any keys furnished, Tenant will pay
to Landlord the cost thereof. Tenant, before closing and leaving the
Premises, will ensure that all windows are closed and entrance doors
locked. Nothing in this Paragraph 7 will be deemed to prohibit Tenant from
installing a security system within the Premises, provided: (1) Tenant
obtains Landlord's consent which will not be unreasonably withheld or
delayed; (2) Tenant supplies Landlord with copies of the plans and
specifications of the system; (3) such installation will not damage the
Building or any Common Facilities; (4) all costs of installation and
removal (if required by Landlord) will be borne solely by Tenant; and (5)
Landlord is afforded the security code or other means of access to the
Premises for purposes permitted under the Lease.
8. CONTRACTORS: Tenant will not enter into any contract of any kind with any
supplier of towels, water, toilet articles, waxing, rug shampooing,
venetian blind washing, furniture polishing, lamp servicing, cleaning of
electrical fixtures, removal of waste paper, rubbish or garbage, or other
like service, nor will Tenant install or cause to be installed any machine
of any kind (other than customary office equipment) in the Premises, other
portions of the Building or the Real Property without the prior written
consent of the Landlord. Tenant will not employ any persons other than
Landlord's janitors for the purpose of cleaning the Premises without the
prior written consent of Landlord. Landlord will not be responsible to
Tenant for any loss of property from the Premises, however occurring, or
for any damage to the effects of Tenant by such janitors or any of its
employees, or by any other person or any other cause.
9. PROHIBITED ON PREMISES: Tenant will not conduct, or permit any other person
to conduct, any auction upon the Premises, nor will Tenant manufacture or
store, or permit others to manufacture or store, goods, wares or
merchandise upon the Premises, without the prior written approval of
Landlord, except the storage in customary amounts of ordinary office
supplies to be used by Tenant in the conduct of its business. Tenant will
not permit the Premises to be used for gambling. Tenant will not permit any
portion of the Premises to be occupied as an office for a public
stenographer or typewriter, or for the manufacture or sale of intoxicating
beverages, narcotics, tobacco in any form or as a ▇▇▇▇▇▇ or manicure shop
or for any medical use, including medical testing on humans or animals.
Canvassing, soliciting and peddling at the Real Property are prohibited,
and Tenant will cooperate to prevent the same. No bicycles, vehicles or
animals of any kind will be brought into or kept in or about the Real
Property, except guide dogs.
10. PLUMBING, ELECTRIC AND TELEPHONE WORK: Plumbing facilities will not be used
for any purpose other than those for which they were constructed; and no
sweepings, rubbish, ashes, newspaper or other substances of any kind will
be thrown into them. Waste and excessive or unusual amounts of electricity
or water use is prohibited. When electric or communications wiring of any
kind is introduced, it must be connected as directed by Landlord, and no
stringing or cutting of wires will be allowed, except by prior written
consent of Landlord, and will be done by contractors approved by Landlord.
11. MOVEMENT OF FURNITURE, FREIGHT OR BULKY MATTER: The carrying in or out of
freight, furniture or bulky matter of any description must take place
during such hours as Landlord may from time to time reasonably determine
and only after advance notice to the manager of the Building. The persons
employed by Tenant for such work must be reasonably acceptable to Landlord
and provide liability insurance reasonably satisfactory to Landlord. Tenant
may, subject to these provisions, move freight, furniture, bulky matter,
and other material into or out of the Premises on Saturdays between the
hours of 9:00 a.m. and 1:00 p.m., provided Tenant pays additional costs, if
any, incurred by Landlord for elevator operators or security guards, and
for any other expenses occasioned by such activity of Tenant. If, at least
three (3) days prior to such activity, Landlord requests that Tenant
deposit with Landlord a sum which Landlord reasonably estimates to be the
amount of such additional cost, the Tenant will deposit such sum with
Landlord as security for such cost. There will not be used in the Building
or Premises, either by Tenant or by others, any hand trucks except those
equipped with rubber tires and side guards, and no hand trucks will be
allowed in the elevators without the consent of the superintendent of the
Building.
12. SAFES AND OTHER HEAVY EQUIPMENT: Landlord reserves the right to prescribe
the weight and position of all safes and other heavy equipment so as to
distribute their weight properly and to prevent any unsafe condition from
arising. Tenant will not place a load upon any floor of the Premises
exceeding the floor load per square foot area which it was designed to
carry or which is allowed by law.
13. ADVERTISING: Landlord may prohibit any advertising by Tenant which in
Landlord's reasonable opinion tends to impair the reputation of the
Building or its desirability as a building for offices, and upon written
notice from Landlord, Tenant will refrain from or discontinue such
advertising.
14. NON-OBSERVANCE OR VIOLATION OF RULES BY OTHER TENANTS: Landlord will not be
responsible to Tenant for non-observance or violation of any of these rules
and regulations by any other tenant.
15. AFTER HOURS USE: Landlord reserves the right to exclude from the Building
during Building Hours and at all hours on Saturdays, Sundays and Building
Holidays, all persons who do not present a pass to the Building signed by
the Tenant. Each Tenant will be responsible for all persons for whom such a
pass is issued and will be liable to the Landlord for the acts of such
persons.
16. RESERVATION OF RIGHTS: Landlord reserves to itself any and all rights not
granted to Tenant hereunder, including the following:
a) the exclusive right to the use of the name of the Building for all
purposes, except that Tenant may use the name as its business address
and for no other purposes;
b) the right to change the name or address of the Building, without
incurring any liability to Tenant for doing so;
c) the right to install and maintain signs on the exterior of the
Building;
d) the exclusive right to use and/or allow others to use the roof of the
Building;
e) the right to limit the space on the directory of the Building to be
allotted to Tenant; and
f) the right to grant to anyone the right to conduct any particular
business or undertaking in the Building.
17. HEALTH AND SAFETY: Tenant will be responsible for initiating, maintaining
and supervising all health and safety precautions and/or programs required
by Legal Requirements applicable to the Premises and/or Tenant's use and
occupancy of the Premises.
--END--
EXHIBIT C
---------
WORKLETTER AGREEMENT
IVIVI TECHNOLOGIES, INC. ("Tenant") and ▇▇▇▇-▇▇▇▇ EAST LAKEMONT L.L.C.
("Landlord") are executing a written lease ("Lease"), covering ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, as more particularly described in the Lease
("Premises").
To induce Tenant to enter into the Lease (which is hereby incorporated by
reference) and in consideration of the covenants contained in this Workletter
Agreement (the "Workletter"), Landlord and Tenant agree as follows:
1. Landlord will have its architect prepare the following architectural and
mechanical drawings and specifications based upon the sketch layout
supplied to Landlord by Tenant.
a. Architectural drawings and specifications for Tenant's partition
layout, reflected ceiling, placement of electrical outlets and other
installations for the work to be done by Landlord.
b. Mechanical plans and specifications where necessary for installation
of air conditioning systems, ductwork and heating.
All such plans and specifications are expressly subject to Landlord's
written approval, which approval will not be unreasonably withheld.
2. Landlord agrees to cause the partition plan, electrical plan and the
reflected ceiling plan to be delivered to Tenant on or before the fifteenth
(15th) day after Lease execution. Tenant agrees to approve the plans by
initialing and returning them to Landlord within three (3) days of receipt
of each plan. Upon approval of the plans initialed by Tenant, Landlord will
file the plans with the appropriate governmental agencies. This Lease is
expressly conditioned upon Landlord obtaining a building permit from the
appropriate government official for the Work (as hereinafter defined).
3. Landlord agrees, at its expense and without charge to Tenant (unless
otherwise provided), to do the work in the Premises as shown on the
approved plans described above and described on the "Description of
Materials" schedule attached to this Workletter, which will be referred to
as the "Work" in the following provisions of this Workletter. "Building
Standard" will mean the type and grade of material, equipment and/or device
designated by Landlord as standard for the Building. All items are Building
Standard unless otherwise noteed.
4. Intentionally omitted.
5. All low partitioning, workstation modules, bank screen partitions and
prefabricated partition systems will be furnished and installed by Tenant
at its expense.
6. The installation or wiring of telephone and computer (data) outlets is not
part of the Work. Tenant will bear the responsibility to provide its own
telephone and data systems at Tenant's sole cost and expense.
7. Changes in the Work, if necessary or requested by the Tenant, will be
accomplished after the execution of the Lease and this Workletter, and
without invalidating any part of the Lease or Workietter, by written
agreement between Landlord and Tenant (referred to as a "Change Order").
Each Change Order will be prepared by Landlord and signed by both Tenant
and Landlord stating their agreement on all of the following:
a. The scope of the change in the Work; and
b. The cost of the change; and
c. The manner in which the cost will be paid; and
d. The estimated extent of any adjustment to the Commencement Date (if
any) as a result of the change in the Work.
Each and every Change Order will be signed by Landlord's and Tenant's
respective construction representatives. In no event will any Change
Order(s) be permitted without such authorizations. A 10% supervision
plus 10% overhead charge will be added to the cost of any Change Order
and to the cost of any other work to be performed by Landlord in the
Premises after Landlord's completion of the Work. If Tenant fails to
approve any such Change Order within one (1) week, it will be deemed
disapproved in all respects by Tenant, and Landlord will not be
authorized to proceed on it. Any increase in the cost of the Work or
the change in the Work stated in a Change Order which results from
Tenant's failure to timely approve and return said Change Order will
be paid by Tenant. Tenant agrees to pay Landlord the cost of any
Change Order upon receipt of an invoice for the Change Order.
8. If Tenant elects to use the architect suggested by Landlord, this architect
becomes solely the Tenants agent with respect to the plans, specifications
and the Work. If any change is made after completion of schematic drawings
and prior to completion of final construction documents which result in a
Change Order and additional costs, such costs will be the responsibility of
the Tenant.
9. Prior to Tenant's occupancy of all or any part of the Premises, Tenant will
identify and list any portion of the Work which does not conform to this
Workletter ("Punch List"). The Landlord will review with the Tenant all of
the items so listed and correct or complete any portion of the Work
referenced in the Punch List which fails to conform to the requirements of
this Workletter. -
10. The terms contained in the Lease (which includes all Exhibits to the Lease)
constitute Landlord's agreement with Tenant with respect to the Work.
11. Except as set forth in the last sentence of this paragraph, all Work within
the Premises will become the property of Landlord upon installation. No
refund, credit or removal of any Work will be permitted at the expiration
or earlier termination of the Lease. Items installed that are not
integrated in any way with the Work (e.g., furniture and other trade
fixtures) become the property of Tenant upon installation.
12. It is agreed that notwithstanding the date provided in the Basic Lease
Provisions for the Commencement Date, the term will not commence until the
earlier of(i) the date Tenant (or' anyone claiming under or through Tenant)
occupies all or any part of the Premises or (ii) the date Landlord has
"substantially completed" the Work; provided, however, that if Landlord is
delayed in substantially completing the Work as a result of:
a. Tenant's failure to approve the plans and specifications in accordance
with Paragraph 2 of this Workletter;
b. Tenant's failure to furnish interior finish specifications (i.e.,
paint colors, carpet selection, etc.) to Landlord by the fifth (5th)
business day after Tenant has approved the plans and specifications
pursuant to Paragraph 2;
c. Tenant's request for materials, finishes or installations other than
Landlord's Building Standard;
d. Tenant's changes in the Work;
e. The performance of a person, firm, partnership or corporation employed
by Tenant and the non-completion of work by such person, firm,
partnership or corporation; and/or
f. Any act or omission of Tenant which delays governmental inspections
and approvals, including, if necessary and without limitation, failure
to install furniture and/or failure to obtain low voltage wiring
permits;
then the Commencement Date will be accelerated by the number of days
of such delay, and Tenant's obligation to pay Fixed Basic Rent and
Additional Rent will commence as of such earlier date.
13. Landlord will permit Tenant and its agents to enter, as licensees only, the
Premises prior to the Commencement Date so that Tenant may perform through
its own contractors such other work and decorations as Tenant-may desire at
the same time Landlord's contractors are working in the Premises. The
foregoing license to enter prior to the Commencement Date, however, is
conditioned upon:
a. Tenant's workmen and mechanics working in harmony and not interfering
with the labor employed by Landlord, Landlord's mechanics or
contractors or by any other tenant or its mechanics or contractors;
b. Tenant providing Landlord with evidence of Tenant's contractors and
subcontractors carrying such worker's compensation insurance as
required by law, commercial general liability and property insurance
in amounts no less than the amounts set forth in Article 22 a) of the
Lease. If at any time such entry will cause disharmony or interference
of the nature described in subparagraph 13 a) above, this license may
be withdrawn by Landlord upon forty-eight (48) hours written notice to
Tenant. Such entry will be deemed controlled by all of the terms,
covenants, provisions and conditions of the Lease, except as to the
covenant to pay Fixed Basic Rent. Landlord will not be liable in any
way for any injury, loss or damage which may occur to any of Tenant's
decorations or installations made prior to the Commencement Date, the
same being solely at Tenant's risk; and
c. Tenant will use union contractors if required by Landlord.
14. No part of the Premises will be deemed unavailable for occupancy by Tenant,
nor will any work which the Landlord is obligated to perform in such part
of the Premises be deemed incomplete for the purpose of any adjustment of
Fixed Basic Rent payable under the Lease, if minor details of construction,
decoration or mechanical adjustments exist and the non-completion of such
details does not materially interfere with the Tenant's use of such part of
the Premises.
15. If construction is to occur in a space occupied by Tenant's employees,
Tenant will be liable for all costs associated with a delay, if Tenant
fails to comply with a submitted construction schedule to relocate
personnel, furniture or equipment. These costs will include, but not be
limited to, the following:
a. cost of construction workers time wasted;
b. cost of any overtime work necessary to meet schedule deadlines; and
c. any other costs associated with delays in final completion.
16. This Workletter is based on the materials and layouts set forth or
referenced in the Workletter. Any change to the materials and layout will
require a recalculation of construction costs and any increases in costs
shall be Tenant's responsibility. Such recalculation will not negate any
other Article of this Lease.
17. All sums payable by Tenant to Landlord in connection with this Exhibit C
and any other work to be performed by Landlord within the Premises and
billable to Tenant will be deemed Additional Rent.
18. With respect to the construction work being conducted in or about the
Premises, each party agrees to be bound by the approval and actions of
their respective construction representatives. Unless changed by written
notification, the parties designate the following individuals as their
respective construction representatives:
FOR LANDLORD: FOR TENANT:
-------------------------------- --------------------------------
c/o ▇▇▇▇-▇▇▇▇ Realty Corporation --------------------------------
-------------------------------- --------------------------------
-------------------------------- --------------------------------
[picture of Floor Plan]
EXHIBIT C
Workletter Agreement for office space on the Ground floor at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ between ▇▇▇▇-Call East Lakemont L.L.C., as Lessor, and
IVIVI, as Lessee.
▇▇▇▇-▇▇▇▇ REALTY CORPORATION
CONSTRUCTION WORKLETTER
Lessee IVIVI Property JT Square Feet 7,500
Location ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ Job #______ Floor Ground
Date 04/12/07, Rev # 1-05/08/07 Year 2007 Lease Date ______
Drawings SK-1-05/07/2007-EST PM# 18 Lease Rep. RE
File Name IVIVI050807 RevRE Tenant ID____ Proj. Mgr. AK
Former Tenant Volkswagen-temp space
Projected Occupancy______________________________
GL # DESCRIPTION ESTIMATE COST/SF
--------------------------------------------------------------------------------
5502 ARCHITECT / ENGINEER / EXPEDITOR $7,500 $1.00
5503 BLUE PRINTS $250 $0.03
5504 BUILDING PERMIT $6,140 $0.82
5505 DEMOLITION $3,906 $0.52
5507 REFUSE CONTAINERS $1,920 $0.26
5512 LABOR $3,645 $0.49
5524 SUPPLIES $1,100 $0.15
5524 LANDSCAPING / SITE WORK $0 $0.00
5524 CONCRETE / MASONRY $0 $0.00
5524 ROOFING $0 $0.00
5524 MISCELLANEOUS SPECIALTIES $0 $0.00
5526 MILLWORK $0 $0.00
5530 DRYWALL/CARPENTRY $12,385 $1.65
5532 PLUMBING $0 $0.00
5533 ELECTRIC $11,350 $1.51
5535 HVAC $7,080 $0.94
5538 FOLDING PARTITION DOORS $0 $0.00
5540 DOORS / FRAMES / HARDWARE $7,035 $0.94
5542 CEILINGS $2,065 $0.28
5544 CERAMIC TILE / STONE $0 $0.00
5546 TOILET PARTITIONS $0 $0.00
5550 TOILET & BATH ACCESSORIES $0 $0.00
5552 APPLIANCES $0 $0.00
5558 FINAL CLEANLNG $1,601 $0.21
5560 WINDOW BLINDS $0 $0.00
5563 ACCESS FLOORING $0 $0.00
5564 FLOOR FINISHES $11,649 $1.55
5565 WALL FINISHES $8,169 $1.09
5568 GLAZING / WINDOWS $3,144 $0.42
5572 FIRE SYSTEMS $1,500 $0.20
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ $2,700 $0.36
5575 MISCELLANEOUS METALS / STAIRS $0 $0.00
--------------------------------------------------------------------------------
5500 SUB TOTAL $93,140 $12.42
5511 SUPERVISION $9,314 $1.24
--------------------------------------------------------------------------------
SUB TOTAL $102,454 $13.66
OVERHEAD $10,245 $1.37
--------------------------------------------------------------------------------
TOTAL $112,699 $15.03
LESSOR'S CONTRIBUTION $112,699 $15.03
NET COST TO LESSEE $0 $0.00
PAYMENT SCHEDULE: 50% Deposit & 50% Upon Substantial Completion
NOTES:
1) EXISTING CONDITIONS-
EXHIBIT C
DESCRIPTION OF MATERIALS
DIVISION DIVISION UNITS QUANTITY TOTAL
CODE ITEM
* All costs include material and labor installation unless otherwise noted;
F/I-Furnished & Installed
5502 ARCHITECT / ENGINEER / EXPEDITOR
6502 NJ-Architect-RSF (Minimum Fee $800) SF ▇▇▇▇
▇▇-▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇-▇▇▇ SF 0
Blue Hill, Ramland, ▇▇▇▇▇▇▇▇-Architect-RSF SF 0
Engineer HR 0
Engineer-Steel Design for Partition Door LF 0
-------------------------------------------------------------------------
DIVISION TOTAL 7,500
5503 BLUE PRINTS
6503 Blue Prints LS 1
-------------------------------------------------------------------------
DIVISION TOTAL 250
5504 BUILDING PERMIT
6504 Building Permit Fee (Minimum Fee $500) LS 1
Planning Board Approvals LS 1
Expeditor, Attorney LS 0
-------------------------------------------------------------------------
DIVISION TOTAL 6,140
5505 DEMOLITION
6505 Ceiling Grid & Tile SF 0
Ceiling Tile SF 0
Carpet/Base: SF 6000
Base LF 0
Walls-9' with doors LF 62
Remove existing voice/data wiring LS 1
Walls-Full Height with doors LF 0
Masonry Walls-13' LF 0
Masonry Walls-20' LF 0
VCT SF 0
Lower Cabinets & Countertop LF 0
Upper Cabinets LF 0
Ceramic Wall & Floor Tile/Marble/Granite SF 0
Computer Floor SF 0
Phone/Data & System HR 0
Dumpster-30 Yard EA 0
Labor-Dispose Fixtures, Duct, Phone/Data HR 0
-------------------------------------------------------------------------
DIVISION TOTAL 3,906
5507 REFUSE CONTAINERS
▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇ ▇▇▇▇-▇ ▇▇▇ limit EA 4
Dumpster-20 Yard EA 0
-------------------------------------------------------------------------
DIVISION TOTAL 1,920
5512 LABOR
6512 Labor HR 135
Labor ▇▇▇▇▇▇▇ ▇▇ 0
Truck HR 0
-------------------------------------------------------------------------
DIVISION TOTAL 3,645
5524 SUPPLIES
6524 Fire Extinguishers 10# EA 4
Fire Extinguishers10# w/ Cabinet EA 0
▇▇▇▇ Box-Key Lock EA 0
Re Key Entry Doors & Office Doors EA 6
Signage LS 1
Miscellaneous LS 0
-------------------------------------------------------------------------
DIVISION TOTAL 1,100
5524 LANDSCAPE / SITEWORK
6524 Miscellaneous LS 0
-------------------------------------------------------------------------
DIVISION TOTAL 0
5524 CONCRETE / MASONRY
6524 Sawcut, Remove Concrete, Excavate, Backfill, SF ▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇ Grade SF 0
Walkway On Grade SF 0
Concrete Curb LF 0
Stone Curb LF 0
Curb Cut EA 0
Generator Pad EA ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇
▇▇▇▇▇-▇▇▇▇▇▇▇ ▇▇ ▇
Labor-Misc HR 0
-------------------------------------------------------------------------
DIVISION TOTAL 0
5524 ROOFING
6524 Pitch Pocket-Electric, Gas, Vent Penetrations EA 0
Rooftop Flashing inc. cutting roof EA 0
Exhaust Flan Flashing, 2'x 2' Curb EA 0
Flue Flashing EA 0
New Built-Up Roof SF 0
Labor-Misc HR 0
-------------------------------------------------------------------------
DIVISION TOTAL 0
5524 MISCELLANEOUS SPECIALTIES
6524 Spray Fire Proofing SF 0
Asbestos Fire Proofing Removal SF 0
Asbestos VCT Removal SF 0
Asbestos Cleaning/Vacuum SF 0
Asbestos Cleaning per man day Day 0
Asbestos Monitoring/Testing SF 0
Upgrade Elevator Cabs EA 0
Elevator Repairs HR 0
Directory EA 0
Directory-Illuminated EA 0
Furniture Cube-material only EA 0
Furniture Cube-install EA 0
Overhead Insul Section Door w/ Bumps, 8' x 10 EA 0
Overhead Roll Up Door w/ Bumpers, 8' x 10' EA 0
Loading Dock ▇▇▇▇▇ ▇▇ 0
Loading Dock Bumpers EA 0
Manual Dock Leveler w/ Pit EA 0
Powered Dock Leveler w/ Pit EA 0
Overhead Door Repairs HR 0
Projection Screen Motorized-Material only EA 0
Projection Screen Manual-Material only EA 0
Ceiling Fan-Material only EA 0
Bullet Proof Pass Thru-12"x12"-material EA 0
Bullet Proof: Kevlar Panel-material SF 0
Exterior Resilient Rubber Surface, 2" SF 0
Chain Link Fence LF 0
Vinyl Coated Chain Link Fence LF 0
Guard Rail LF 0
Caulking Exterior Joints inc. remove existing LF 0
Power Wash Exterior Walls SAF 0
Scissors Lift DAY 0
Scissors Lift MONTH 0
Exterior Scaffolding-1 month SAF 0
ADD ON per additional month rental SAF 0
Ext Scaffolding-Swing Planks, 10'-30', 1 month EA 0
ADD ON per additional month rental EA 0
-------------------------------------------------------------------------
DIVISION TOTAL 0
5526 MILLWORK All Plastic Laminate(P.L.) will be white. Alternate is grey or
almond.
6526 Base P.L. Cabinets w/ Countertop LF 0
Upper P.L. Cabinets LF 0
Counter P.L. w/support legs. LF 0
Bathroom Vanity P.L-24" EA 0
Coutner-Corian w/ Subframe. LF 0
Counter-Corian w/ Sinks & Subframe. LF 0
Closet Melamine Shelf & Metal Pole-5 LF EA 0
Wood Wall Cap Oak-4" wide LF 0
Wall Cap P.L-4" wide LF 0
Wood Base Oak-4" high w/ 1/4" bevel LF 0
Chair Rail-Paint Grade LF 0
5 Layer P.L. Adjustable Shelves-12" deep LF 0
▇▇▇▇▇▇ ▇▇▇▇ Cabinets, Upper/Lower/Counter LF 0
Plastic Laminate Panels-9' high LF 0
Wood Veneer Panels-9' high LF 0
Wood Window Frame-4'x4' EA 0
Labor-Misc, Non Union HR 0
Labor-Misc, Union HR 0
-------------------------------------------------------------------------
DIVISION TOTAL 0
5530 DRYWALL/CARPENTRY
6530 DRYWALL
9' wall-no insulation LF 192
9' wall w/insulation LF 0
10' wall-no insulation LF 0
10' wall w/insulation LF 0
13' 1-hour wall w/insulation LF 0
13' 2-hour wall w/insulation LF 0
18' 1-hour wall w/insulation LF 0
18' 2-hour wall w/insulation LF 0
25' 1-hour wall, 6" studs 18 gauge, insulation LF 0
25' 2-hour wall, 6" studs 18 gauge, insulation LF 0
25' 3-hour wall, 6" studs 18 gauge, insulation LF 0
Extend 9' Wall to 13' & insulate LF 0
Kneewall w/ Stud angle supports LF 0
Chase Wall-Ceiling Height LF 0
Sheetrock Columns EA 0
Break Members EA 2
Extend 9' wall 6' above ceiling LF 0
Soffit/Fascia over files LF 0
Header LF 0
Sheetrock Ceiling SF 0
Finished Opening for Glass EA 0
Cut Opening for Door/Glass Door EA 1
Remove Door/Close Up Opening EA 5
Insulation SF 0
Voice/data outlet blow out patches EA 24
Scarpatch EA 6
Labor-Misc,/Drywall Patch HR 0
CARPENTRY
Telephone Fire Rated Plywood-4'x8' EA 0
Plywood Blocking/Metal Straps LF 0
5 Layer Adjustable Birch Shelves-12" LF 0
H/W Heater Shelf EA 0
Closet Melamine Shelf & Metal Pole LF 5
Install Fire Dampers-supplied by HVAC EA 0
Install Fire Extinguishers EA 0
Install Projection Screen EA 0
Moveable Metal Partitions 9' High LF 0
Metal/Glass Partitions 9' w/Glass Door LF 0
Labor-Misc, Blocking, Bath Accessories HR 0
-------------------------------------------------------------------------
DIVISION TOTAL 12,385
5532 PLUMBING
6532 Demolition HR 0
Offc Bldg Sink-Waste, Vent, Hot/Cold, Sink EA 0
Offe Bldg Sink-Blue ▇▇▇▇ ▇▇ 0
Bathroom-Water Closet, Basin, Waste, Water LS 0
Slop Sink-Waste, Vent, Hot/Cold, Sink EA 0
Add on-Water Closet EA 0
Add on-Urinal EA 0
Add on-Basin EA 0
Add on-Slop ▇▇▇▇ ▇▇ ▇
▇-▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇-▇ ▇▇▇▇▇▇ EA 0
Hot Water Heater-30 Gallon EA 0
Hot Water Heater-75 Gallon EA 0
Waggs Shut Off Valve EA 0
Waste, Water & Connection for Dishwasher EA 0
Coffee Maker Water Feed EA 0
Ice Maker Water Feed EA 0
Replace Liberty Ejector Pump EA 0
Copper Water Piping, 3/4" LF 0
Copper Water Piping, 1-1/4" LF 0
Gas Piping, 2" LF 0
Gas Piping, 3" LF 0
Water Meter EA 0
Gas Meter,Meter Bar,Test EA 0
Labor-Misc HR 0
-------------------------------------------------------------------------
DIVISION TOTAL 0
5533 ELECTRIC
6533 Demolition-Outlets, Switches HR 8
▇▇▇▇▇▇/▇▇▇▇▇▇ ▇▇ ▇
Service-50', Meter, 277V, 200Amp, Transf, 120V EA 0
Subpanel-50", 120V, 200 Amp EA 0
Submeter EA 0
2 x 4 Prismatic Fixtures T8-3 Lamp EA 0
2 x 4 Parabolic T8-3 Lamp EA 0
2 x 2 Prismatic Fixtures T8 EA 0
2 x 2 Parabolic Fixtures T8 EA 0
2 x 4/2 x 2 Prismatic Fixtures T12-3 Lamp EA 0
2x4/2x4 Parabolic Fixtures T12-3 Lamp EA 0
8' Strip Fixture EA 0
8' Track Light Fixture EA 0
Add On-Battery Packs to Fixtures EA 0
Relocate Fixtures w/ BX EA 40
Refurbish Fixtures w/ lamps & lense EA 0
Downlights-Incandescent EA 0
Downlights-Compact Florescent EA 0
Downlights-Compact Flourescent Dimmer EA 0
Wall Sconces-Compact Flourescents EA 0
Metal Hallide, 400 ▇▇▇▇▇, 25' on center EA 0
Relocate emergency fixture EA 1
Exit Lights EA 2
Wall MT Emerg'cy Fixts EA 2
Single Pole Switches EA 8
3-Way Switches EA 2
Dimmer Switches EA 0
Occupancy Sensor Switch EA 0
Wall Mount Duplex EA 8
Wall Mount Quad EA 5
Wall Mount Quad-training room EA 6
Floor Mount Outlet/P/D & ▇▇▇▇▇▇▇▇▇▇ ▇▇ 0
Floor Mount Flush Outlet/P/D & ▇▇▇▇▇▇▇▇▇▇ ▇▇ 0
Floor Mount Flush P/D & ▇▇▇▇▇▇▇▇▇▇ ▇▇ 0
GFI EA 0
110 Volt, 20 Amp, Dedicated EA 0
220 Volt, 30 Amp, Dedicated EA 0
Furniture Junction Box-8 Wire,3 Circuit EA 0
Furniture Junction Box-1 Circuit EA 0
Power Pole-8 Wire,3 Circuit EA 2
Power Pole-1 Circuit EA 0
UPS-50 Kva, Input, Panel, Batteries EA ▇
▇▇▇-▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇, Batteries EA 0
UPS Output, Feeds EA 0
Generator-100 KW, ATS, Enclosure, Wired EA ▇
▇▇▇▇▇▇▇▇▇-▇▇▇ ▇▇, ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ EA 0
Phone/Data Lines EA 0
Phone Service/Switch/Wiring SF 0
Phone/Data Plaster Rings w/ Pull Strings EA 0
Phone/Data Conduits w/ Pull Strings EA 0
4" Conduit for Phone D'▇▇▇▇ Feed LF 0
2" Conduit for Phone D'▇▇▇▇ Feed LF 0
Rooftop A/C Wiring w/ Disconnect EA 0
Supplemental A/C Wiring w/ Disconnect EA 0
Unit Heater Wiring w/ Disconnect EA 0
Exhaust Fan Wiring w/ Disconnect EA 0
Hot Water Heater Wiring w/ Disconnect EA 0
Dishwasher Wiring w/ Disconnect EA 0
T-Stat Wiring EA 0
Smoke Damper Wiring EA 0
Projection Screen Wiring w/ Switch EA 0
Ceiling Fan-Install & Wire EA 0
New Electric Basebord Heat LF 0
Repair Electric Baseboard ▇▇▇▇/▇▇▇▇▇▇ ▇▇ ▇
▇▇▇▇▇-▇▇▇▇▇▇▇ ▇▇ ▇
▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇ ▇▇ 0
-------------------------------------------------------------------------
DIVISION TOTAL 11,350
5535 HVAC
6535 Demolition HR 0
New Duct, VAV's, Diffsrs, Returns, T'Stats, Insul SF 0
Relocate Existing Diffusers, Returns, T'Stats SF 1680
Relocate Diffuser w/10' Flex EA 0
Relocate VAV Box EA 0
Moduline VAV Diffuser w/ 10' Flex & T'Stat EA 0
Moduline Slave Diffuser w/ 10' Flex EA 0
VAV Box, 1,000 CFM, T'Stat, Wiring, Duct EA 0
VAV Box w/ Reheat, T'Stat, Wiring EA 0
VAV Box w/ 4 Diff, T'Stat, Wiring, Duct EA 0
2x2 Diffuser w/ 10' Flex EA 0
2x2 Return-Metal Perforated EA 0
Return-Plastic Eggerate EA 0
Fire Dampers-material EA 0
Rooftop Unit, Duct, Diff, Retrns, T'Stat, Insul TONS 0
1-2 Ton Minimate A/C, Ceiling, T'Stat EA 0
2 Ton Split, Duct, Diff, T'Stat Insul, 20' Pipe EA 0
5 Ton Split, Duct, Diff, T'Stat Insul, 20' Pipe EA 0
7-1/2 Ton Split, Duct, Diff, T'Stat, Insul, 20' Pipe EA 0
10 Ton Split, Duct, Diff, T'Stat, Insul, 20' Pipe EA 0
1 Ton Heat Pump w/ Piping, T'Stat EA 0
3 Ton Heat Pump w/ Piping, T'Stat EA 0
12-1/2 Ton Split, Duct, Diff, T'Stat, Insul, 20' Pipe EA 0
5 Ton Air Cool HT Pump, Duct, Diff, T'Stats, Ins EA 0
Air Cool, HT Pump, Duct, Diff, T'Stats Insul TONS 0
Liebert 20 Ton Split System EA 0
Unit Heater-50,000 BTU, T'Stat EA 0
Unit Heater-150,000 BTU, T'Stat EA 0
Bathroom Exhaust Fan Ducted to Roof 1 floor EA 0
Exhaust Fan-Plenum EA 0
Thermostats EA 0
Repair Electric Baseboard Heat/Covers HR 0
Service Rooftop Units EA 0
Service VAV Boxes SF 6000
Testing & Balancing SF 6000
Labor-Misc HR 0
-------------------------------------------------------------------------
DIVISION TOTAL 7,080
5538 FOLDING/PARTITION DOORS
6538 Partition Door-9' High LF 0
-------------------------------------------------------------------------
DIVISION TOTAL 0
5540 DOORS / FRAMES / HARDWARE
6540 DOORS / FRAMES *Include hinges
3x7 SC Oak Stain Grade Door, HM Frame EA 9
3x7 SC Oak SG Door w/ Vision Lite, ▇▇ ▇▇▇▇ EA 0
3x7 HM Door, HM Frame EA 0
3x7 SC Door ,HM Frame w/ 24" Sidelite EA 0
6x7 DD SC Oak St Grade Door, HM Frame EA 0
3x8 SC Oak Stain Grade Door, HM Frame EA 0
3xFH SC Oak Stain Grade Door, HM Frame EA 0
6xFH SC Oak Stain Grade Door, HM Frame EA 0
3x7 90-Mm SC St Grade Door, HM Frame EA 0
6x7 DD 90 Mm sc St Grade, HM Frame EA 0
3x8 90-Min SC St Grade Door, HM Frame EA 0
3xFH 90-Mm SC St Grade Door, HM Frame EA 0
6x7 SC Slider Oak Stain Grade Doors EA 0
6x7 SC Bifold Oak Stain Grade Doors EA 0
6xFH SC Slider Oak Stain Grade Doors EA 0
Raco-3xFull Height PL/Frame EA 0
Raco-3xFullHeight Stained Wood Veneer EA 0
Relocate 3x7 SC/HM Frame/Hdwr EA 3
Relocate 6x7 DD SC/HM Frame/Hdwr EA 0
Relocate 4x7 Bifold/Sliders w/ Track/Hdwr EA 0
4' x 4' Hollow Metal Window Frame EA 0
HARDWARE
Lever Passage Sets EA 9
ICC Lever Locksets EA 0
Lever Locksets EA 0
Lever Privacy Sets EA 0
Simplex Combo Lockset EA 0
Door Stop EA 0
Floor Stop EA 9
4.5 "▇▇▇▇▇▇▇ Hinges SET of 3 9
Bifold/Slider Door Track & Hdwr EA 0
Closers EA 0
Latchguards EA 0
Coat ▇▇▇▇▇ ▇▇ 0
Flush Bolts-concealled SET of 2 0
Electric Strike EA 0
Mag Locks EA 0
Door Sweep & Saddle EA 0
Panic Device EA 0
Labor-Misc: HR 0
-------------------------------------------------------------------------
DIVISION TOTAL 7,035
5542 CEILINGS *All Grid is 15/16"
6542 2x4 Grid & Lay-In Tile SF 0
2x4 Grid & Tile, 2x2 Second Look Reveal SF 0
2x4 Grid SF 0
2x4 Lay-In Tile SF 850
2x4 2x2 Second Look Tile Reveal SF 0
2x2 Grid & Lay-In Tile SF 0
2x2 Grid & Reveal Tile-Cortega 704 SF 0
2x2 Grid & Reveal Tile-Cirrus 584 SF 0
2x2 Grid SF 0
2x2 Lay-In Tile SF 0
2x2 Cortega Tile 704 Reveal SF 0
2x2 Cirrus Tile 584 Reveal SF 0
Fire Rated Add On SF 0
Soffit/Shade Pocket LF 0
Clean Room 2x4 Ceiling SF 0
Repair 2x4/2x2 Lay-In Grid & Tile SF 500
Remove Tile SF 850
Patch @ Wall Penetration LF/side 0
2x4 Lay-In Tile-Material Only-lO per case SF 0
Labor-Misc HR 0
-------------------------------------------------------------------------
DIVISION TOTAL 2,065
5544 CERAMIC TILE / STONE
6544 Ceramic Floor Tile-Dal 2"x2" SF 0
Ceramic Wall Tile 4' High-Dal 4"x4" SF 0
Marble Saddle EA 0
Marble Countertop LF 0
Marble Base LF ▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ SF 0
Limestone Floor SF 0
Labor-Misc HR 0
-------------------------------------------------------------------------
DIVISION TOTAL 0
5546 TOILET PARTITIONS
6546 Enclosure w/ Door-Prefinished Metal EA 0
Enclosure w/ Door-Plastic Laminate EA 0
Privacy Screen-Prefinished Metal EA 0
Privacy Screen-Plastic Laminate EA 0
Labor-Misc HR 0
-------------------------------------------------------------------------
DIVISION TOTAL 0
5550 TOILET & BATH ACCESSORIES (materials only)
6550 Grab Bars 4' EA 0
Toilet Paper Dispensor EA 0
Paper Towel Dispensor EA 0
Soap Dispensor EA 0
Womens Dispensor EA 0
Bathroom Sign EA 0
Bathroom Mirror EA 0
-------------------------------------------------------------------------
DIVISION TOTAL 0
5552 APPLIANCES (materials only)
6552 Refrigerator EA 0
Undercounter Refrigerator EA 0
Dishwasher EA 0
Microwave EA 0
-------------------------------------------------------------------------
DIVISION TOTAL 0
5558 FINAL CLEANING
6558 Final Cleaning-Offc Bldg SF 6000
Strip VCT & Wax SF 675
Steam Clean Carpet SF 0
Clean Concrete Floor SF 0
Clean Grid SF 0
Clean Vinyl Wallcover SF 0
Duct Cleaning SF 0
Labor-Misc HR 0
-------------------------------------------------------------------------
DIVISION TOTAL 1,601
5560 WINDOW BLINDS *Quantity above 5 will reduce the unit cost by 33%
6560 Levelor Brushed Chrome EA 0
Levelor Dark Bronze EA 0
Levelor Alabaster EA 0
Vertical Blinds EA 0
Repairs EA 0
Labor-Misc HR 0
-------------------------------------------------------------------------
DIVISION TOTAL 0
5563 ACCESS FLOORING
6563 Computer Floor-New SF 0
Computer Floor-Used SF 0
Perforated Panels EA 0
Panel Cut Outs EA 0
Labor-Misc HR 0
-------------------------------------------------------------------------
DIVISION TOTAL 0
5564 FLOOR FINISHES
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ 26oz-Felx Building SY 0
▇▇▇▇ Culture, Evolution, Space, Design Series SY 0
Cambridge Biltmore III-Loop 28oz SY 655
Cambridge Crossroads/Route 66 Cut Pile 36oz SY ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 38oz SY 0
Carpet Tile SY 0
VCT SF 675
VCT-Static Dissipative/Anti Static SF 0
Cove/Straight Vinyl Base LF 346
Carpet Base LF 0
▇▇▇▇▇▇▇▇▇ Sheet Vinyl SF 0
▇▇▇▇▇▇▇▇▇ Sheet Vinyl-Base w/ cap LF 0
Epoxy Floor-Standard Shop Floor SF 0
Tire Tread Tiles 18"x18" SF 0
Parquet Wood Floor SF 0
Tongue & Groove Wood Floor SF 0
Padding Tac Strip SY 0
Flash Patching SF 0
Shotblast/Scarify Floor SF 0
Carpet Runners, Olefin, 4' x 10' EA 0
Labor-Install SY 0
Labor-Misc HR 0
-------------------------------------------------------------------------
DIVISION TOTAL 11,649
5565 WALL FINISHES
6565 DRYWALL
GWB Wall -3 coats flat SF 0
GWB Wall -2 coats flat SF 8112
GWB Wall -1 coat flat SF 0
Eggshell/Semi Gloss Add On SF 0
Columns EA 0
WALLCOVER *1 LF of 9' wall = .75 LY of WC; 1 LY of WC 1.33 LF of 9' wall;
30 LV Bolt
Wallcover-F/I Vinyl Type I, 14 ox, 54" wide LY 0
Wallcover-F/I Vinyl Type II, 20 oz, 54" wide LY 0
Wallcover-F/1 Fabric, Class A, 54" wide LY 0
Labor-Install Vinyl Wallcover LY 0
Lab or-Install Fabric Wallcover LY 0
DOORS/FRAMES
Paint Doors 2 ▇▇▇▇▇ ▇▇ 0
Varnish 2 ▇▇▇▇▇ ▇▇ 17
Stain/Varnish 2 ▇▇▇▇▇ ▇▇ 9
Paint HM Doors EA 0
Paint HM Door Frames/Window Frames EA 23
MISCELLANEOUS
Zolatone SF 0
Exterior Paint-Epoxy SAF 0
Exterior Seal Coat SAF 0
Seal Concrete Floor SF 0
Paint Concrete Floor SF 0
Paint Ceiling Grid SF 0
Paint Open Plenum Deck/Steel SF 0
Wood Shelving-3 cts LF 0
Paint Baseboard/Convectors LF 148
Paint Window ▇▇▇▇ ▇▇ 0
Paint Metal Blind Pocket LF 0
Electro-Static Paint SF 0
Remove Wallcover & Skim Coat ▇▇▇▇▇ ▇▇ 0
Labor-Misc, Touch Ups and Repairs HR 3
-------------------------------------------------------------------------
DIVISION TOTAL 8,169
5568 GLAZING / WINDOWS
6568 3-0x7-0 Glass Entry, Aluminum Frame EA 0
3-0x7-0 Glass Entry, Alum Frame w/ 24" Sidelit EA 0
6-0x7-0 DD Glass Entry, Aluminum Frame EA 0
3-0x7-0 Glass Entry, Herculite EA 0
Relocate main entrance LS 0
3-0x7-0 Glass Entry w/ sidelite, Herculite EA 0
6-0x7-0 DD Glass Entry, Herculite EA 0
Fixed glass in alum frames EA 21
3/8" Plate Glass w/ stops SF 0
3/8" Safety Glass w/ stops SF 0
1/2" Glass Wall w/ Door,4" Upper/Lower Shoe SF 0
1/2" Glass Wall Upper/Lower Shoes SF 54
Mirrors SF 0
4'x3' Glass Slider EA 0
3'x7' Bullet Resistant Alumn/Glass Door 1-3/16' EA 0
Tinted Glass-3/8" SF 0
Frosted Glass SF 0
Bendheim Glass SF 0
Glass Block SF 0
Plexi-Glass SF 0
Window Film SF 0
Labor-Misc HR 0
-------------------------------------------------------------------------
DIVISION TOTAL 3,144
5572 FIRE SYSTEMS
6572 4 Zone Fire Panel EA 0
Smoke Detector w/ Base EA 0
Heat Detector w/ Base EA 0
Duct Detector EA 0
Strobe EA 0
Speaker/Strobe EA 3
Horn/Strobe EA 0
Pull Station EA 0
Wire in Door Releases, Flows, Tampers EA 0
Labor-Misc HR 0
-------------------------------------------------------------------------
DIVISION TOTAL 1,500
5574 SPRINKLERS
6574 New Pendant 2 Piece or Conceallor Heads EA 0
New Upright Heads EA 0
Relocate Heads EA 18
Replace Heads EA 0
High Heat Heads EA 0
Preaction On/Off Heads EA 0
Relocate Fire Hose Cabinet-20' EA 0
FM 200 GasSystem 10'x10 Rm excl Wiring EA 0
Hydrocalculations, Sign & Seal LS 0
Labor-Misc HR 0
-------------------------------------------------------------------------
DIVISION TOTAL 2,700
5575 MISCELLANEOUS METALS / STAIRS
6575 2-Line Railing LF 0
4' High Platform w/ Stairs & Railings EA 0
Steel Support for Roof Top Units EA 0
Steel Support for Partition Doors LF 0
Overhead Door Steel & Channels SET 0
Labor-Misc HR 0
-------------------------------------------------------------------------
DIVISION TOTAL 0
-------
SUB TOTAL 93,140
EXHIBIT D
---------
CLEANING SERVICES
(Five Nights Per Week)
TENANT'S PREMISES
-----------------
1. Vacuum clean all carpeted areas.
2. Sweep and dust mop all non-carpeted areas. Wet mop whenever necessary.
3. All office furniture such as desks, chairs, files, filing cabinets, etc.
will be dusted with a clean treated dust cloth whenever necessary and only
if such surfaces are clear of Tenant's personal property including but not
limited to plants.
4. Empty wastepaper baskets and remove waste to designated areas.
5. All vertical surfaces within arms reach will be spot cleaned to remove
finger marks and smudges. Baseboard and window ▇▇▇▇▇ are to be spot cleaned
whenever necessary.
6. All cleaning of cafeterias, vending areas and kitchen facilities are
excluded. Tenant may make necessary arrangements for cleaning these areas
directly with Landlord's cleaning maintenance company.
7. Cleaning hours will be Monday through Friday between 5:30 p.m. and 11:00
p.m.
8. No cleaning service is provided on Saturday, Sunday and Building Holidays.
9. Cartons or refuse in excess of that which can be placed in wastebaskets
will not be removed. Tenant is responsible to place such unusual refuse in
trash dumpster.
10. Cleaning maintenance company will neither remove nor clean tea, office cups
or similar containers. If such liquids are spilled in wastebaskets, the
wastebaskets will be emptied but not otherwise cleaned. Landlord will not
be responsible for any stained carpet caused from liquids leaking or
spilling from Tenant's wastebaskets.
11. Glass entrance doors will be cleaned nightly. Interior glass doors or glass
partitions are excluded. Tenant may make arrangements for cleaning interior
glass doors and partitions with Landlord's cleaning maintenance company.
COMMON AREAS
------------
1. Vacuum all carpeting in entrance lobbies, outdoor mats and all corridors.
2. Wash glass doors in entrance lobby with a clean damp cloth and dry towel.
3. Sweep and/or wet mop all resilient tile flooring. Clean hard surface floors
such as quarry tile, etc.
4. Wash, clean and disinfect water fountains.
5. Clean all elevator cabs and stairwells.
6. Lavatories Men and Women.
a. Floors in all lavatories will be wet mopped with a germicidal
detergent to ensure a clean and germ free surface.
b. Wash and polish all mirrors, shelves, bright work including any piping
and toilet seats.
c. Wash and disinfect wash basins and sinks using a germicidal detergent.
d. Wash and disinfect toilet bowls and urinals.
e. Keep lavatory partitions, tiled walls, dispensers and receptacles in a
clean condition using a germicidal detergent when necessary.
f. Empty and sanitize sanitary disposal receptacles.
g. Fill toilet tissue holders, towel dispensers and soap dispensers.
Refills to be supplied by Landlord or its cleaning contractor.
7: Clean all air ventilation grill work in ceilings.
EXHIBIT E
---------
BUILDING HOLIDAYS
BUILDING CLOSED
* NEW YEAR'S DAY *
* MEMORIAL DAY *
* INDEPENDENCE DAY *
* LABOR DAY *
* THANKSGIVING DAY *
* CHRISTMAS DAY *
--END--
EXHIBIT F
---------
COMMENCEMENT DATE AGREEMENT
1.0 PARTIES
THIS AGREEMENT made the_________day of_______, 200 is by and between
▇▇▇▇-▇▇▇▇ EAST LAKEMONT L.L.C. ("Landlord") whose address is c/o ▇▇▇▇-▇▇▇▇
Realty Corporation, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇ and IVIVI TECHNOLOGIES, INC. ("Tenant") whose address is ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇.
2.0 STATEMENT OF FACTS
2.1 Landlord and Tenant entered into a Lease dated _____________, 200 (referred
to as the "Lease" in this Agreement) setting forth the terms of occupancy
by Tenant of approximately ________ gross rentable square feet on the
______ ( ) floor (referred to as the "Premises" in this Agreement) at
___________________________ (referred to as "Building" in this Agreement);
and
2.2 The Commencement Date of the Term of the Lease has been determined in
accordance with the provisions of Article 21 of the Lease.
3.0 STATEMENT OF TERMS
The parties conclusively agree that they have received good and valuable
consideration for making the following agreements:
3.1 The Commencement Date of the Term of the Lease is ______, 200_ and the
Expiration Date of the Term is _______-, 20__ and the Articles 4 and 6 of
the Basic Lease Provisions are modified accordingly.
3.2 Tenant represents and warrants to Landlord that (i) there exists no default
under the Lease either by Tenant or Landlord; and (ii) there exists no
offset, defense or counterclaim to Tenant's obligations under the Lease.
3.2 This Agreement is executed by the parties hereto for the purpose of
providing a record of the Commencement and Expiration Dates of the Lease.
EXCEPT as modified in this Agreement, the Lease will remain in full force
and effect as if the same were set forth in full in this Agreement, and Landlord
and Tenant ratify and confirm all the terms and conditions of the Lease as
modified by this Agreement.
THIS AGREEMENT will be binding upon and inure to the benefit of the parties
hereto and their respective legal representatives, successors and permitted
assigns.
EACH PARTY AGREES that it will not raise or assert as a defense to any
obligation under the Lease or this Agreement or make any claim that the Lease or
this Agreement is invalid or unenforceable due to any failure of this document
to comply with ministerial requirements including, but not limited to,
requirements for corporate seals, attestations, witnesses, notarizations or
other similar requirements, and each party waives the right to assert any such
defense or make any claim of invalidity or unenforceability due to any of the
failures described above.
Landlord and Tenant have executed this Agreement as of the date and year
first above written and represent and warrant to each other that the individual
signing this Agreement on its behalf possesses the requisite authority to sign
this Agreement.
LANDLORD: TENANT:
▇▇▇▇-▇▇▇▇ EAST LAKEMONT L.L.C. IVIVI TECHNOLOGIES, INC.
By: ▇▇▇▇-▇▇▇▇, ▇.▇., member
By: ▇▇▇▇-▇▇▇▇ Realty Corporation,
general partner
EXHIBIT G
---------
TAX AND OPERATING COST RIDER
Tenant will pay in addition to the Fixed Basic Rent provided in this Lease,
Additional Rent to cover Tenant's Percentage of the increased cost to Landlord,
for each of the categories enumerated in this Exhibit, over the "Base Period
Costs" for these categories.
a. OPERATING COST ESCALATION -- If the Operating Costs incurred for the
Real Property for any Lease Year or Partial Lease Year during the Term
will be greater than the Base Operating Costs (reduced proportionately
to correspond to the duration of periods less than a Lease Year), then
Tenant will pay to Landlord, as Additional Rent, Tenant's Percentage
of all such excess Operating Costs. Operating Costs will include, by
way of illustration and not of limitation: personal property taxes;
management fees; labor, including all wages and salaries; social
security and other taxes which may be levied against Landlord upon
such wages and salaries; supplies; repairs and maintenance;
maintenance and service contracts; painting; wall and window washing;
tools and equipment (which are not required to be capitalized for
federal income tax purposes); trash removal; lawn care7 snow removal
and all other items properly constituting direct operating costs
according to standard accounting practices (collectively referred to
as the "Operating Costs" in this Lease); but not including
depreciation of Building or equipment; interest; income or excess
profits taxes; costs of maintaining the Landlord's corporate
existence; franchise taxes; any expenditures required to be
capitalized for federal income tax purposes, unless said expenditures
are for the purpose of reducing Operating Costs at the Real Property,
or those which under generally applied real estate practice are
expensed or regarded as deferred expenses or are required under any
Legal Requirement, in which event the costs thereof shall be included.
Notwithstanding anything contained herein to the contrary, any
additional costs incurred by Landlord during the Calendar Year by
reason of Landlord or any of its vendors entering into new labor
contracts or renewals or modifications of existing labor contracts
will not be included in Base Operating Costs. In addition, Tenant will
pay Landlord Tenant's Percentage of all costs and expenses incurred by
Landlord in connection with complying with any "homeland security"
requirements and such costs and expenses will not be included in
Operating Costs.
b. FUEL, UTILITIES AND ELECTRIC COST ESCALATION -- If utility and energy
costs, including any fuel surcharges or adjustments with respect
thereto, incurred for water, sewer, gas, electric, other utilities and
heating, ventilating and air conditioning for the Building, including
all leased and leasable areas (not separately billed or metered within
the Building), and Common Facilities electric, lighting, water, sewer
and other utilities for the Building and other portions of the Real
Property (collectively referred to in this Lease as "Utility and
Energy Costs"), for any Lease Year or Partial Lease Year during the
Term will be greater than the Base Utility and Energy Costs (reduced
proportionately to correspond to the duration of periods less than a
Lease Year), then Tenant will pay to Landlord as Additional Rent,
Tenant's Percentage of all such excess Utility and Energy Costs.
c. TAX ESCALATION -- If the Real Estate Taxes for the Real Property for
any Lease Year or Partial Lease Year during the Lease Term will be
greater than the Base Real Estate Taxes (reduced proportionately to
correspond to the duration of periods less than a Lease Year), then
Tenant will pay to Landlord as Additional Rent, Tenant's Percentage of
all such excess Real Estate Taxes.
As used in this Lease, "Real Estate Taxes" mean the property taxes and
assessments imposed upon the Building and other portions of the Real
Property, or upon the rent payable to the Landlord, including, but not
limited to, real estate, city, county, village, school and transit
taxes, or taxes, assessments, or charges levied, imposed or assessed
against the Real Property by any taxing authority, whether general or
specific, ordinary or extraordinary, foreseen or unforeseen. If due to
a future change in the method of taxation, any franchise, income or
profit tax will be levied against Landlord in substitution for, or in
lieu of, or in addition to, any tax which would otherwise constitute a
Real Estate Tax, such franchise, income or profit tax will be deemed
to be a Real Estate Tax for purposes of this Lease.
Landlord, will have the exclusive right, but not the obligation, to
contest or appeal any Real Estate Tax assessment levied on all or any
part of the Real Property.
d. INSURANCE COST ESCALATION -- If the Insurance Costs for the Real
Property for any Lease Year or Partial Lease Year during the Term will
be greater than the Base Insurance Costs (reduced proportionately to
correspond to the duration of periods less than a Lease Year), Tenant
will pay to Landlord as Additional Rent for each Lease Year or Partial
Lease Year, Tenant's Percentage of such excess Insurance Costs.
As used in this Lease, "Insurance Costs" mean all fire and other
insurance costs, together with any deductibles, incurred by Landlord
in connection with its operation and maintenance of the Real Property
for any Lease Year or Partial Lease Year during the Term.
e. LEASE YEAR -- As used in this Lease, Lease Year will mean a calendar
year. Any portion of the Term which is less than a Lease Year, that
is, from the Commencement Date through the following December 31, and
from the last January I falling within the Term to the end of the
Term, will be deemed a "Partial Lease Year". Any reference in this
Lease to a Lease Year will, unless the context clearly indicates
otherwise, be deemed to be a reference to a Partial Lease Year if the
period in question involves a Partial Lease Year.
f. PAYMENT -- Prior to each Lease Year, Landlord will give Tenant an
estimate of amounts payable under this Rider for such Lease Year or
Partial Lease Year. By the first day of each month during such Lease
Year or Partial Lease Year, Tenant will pay Landlord one-twelfth
(1/12th) of the estimated amount. If, however, the estimate is not
given before such Lease Year or Partial Lease Year begins, Tenant will
continue to pay by the first day of each month on the basis of last
year's estimate, if any, until the month after the new estimate is
given. As soon as practicable after each Lease Year or Partial Lease
Year ends, Landlord will give Tenant a statement (the "Statement")
showing the actual amounts payable by Tenant under this Rider for such
Lease Year. If the Statement shows that the actual amount Tenant owes
for such Lease Year or Partial Lease Year is less than the estimated
amount paid by Tenant during such Lease Year or Partial Lease Year,
Landlord, at its option, will either return the difference or credit
the difference against the next succeeding payment(s) of Additional
Rent. If the Statement shows that the actual amount Tenant owes is
more than the estimated Additional Rent paid by Tenant during such
Lease Year or Partial Lease Year, Tenant will pay the difference
within thirty (30) days after the Statement is delivered to Tenant.
g. BOOKS AND REPORTS -- Landlord will maintain books of account which,
provided that Tenant has not breached this Lease, will be open to
Tenant and its representatives at all reasonable times so that Tenant
can determine that such Operating, Utility and Energy, Insurance and
Real Estate Tax Costs have, in fact, been paid or incurred. Tenant's
representatives will mean only (i) Tenant's employees or (ii) a
Certified Public Accounting firm, and neither Tenant's employees nor
any Certified Public Accounting firm will be permitted to perform such
inspection and/or audit on a contingency basis or for any other tenant
in the Building. At Landlord's request, Tenant and/or Tenant's
Certified Public Accounting firm will execute a confidentiality
agreement reasonably acceptable to Landlord prior to any examination
of Landlord's books and records. In the event Tenant disputes any one
or more of such charges, Tenant will attempt to resolve such dispute
with Landlord, provided that if such dispute is not satisfactorily
settled between Landlord and Tenant within thirty (30) days, then upon
request of either party, the dispute will be referred to an
independent certified public accountant to be mutually agreed upon to
arbitrate the dispute, and if such an accountant cannot be agreed
upon, the American Arbitration Association may be asked by either
party to select an arbitrator, whose decision on the dispute will be
final and binding upon both parties, who will jointly share any cost
of such arbitration. Pending resolution of the dispute, the Tenant
will pay to Landlord the sum so billed by Landlord, subject to its
ultimate resolution as set forth above. The arbitration mechanism set
forth above shall be the sole process available to resolve such
disputes.
h. RIGHT OF REVIEW -- Once Landlord will have finally determined the
Operating, Utility and Energy, Insurance or Real Estate Tax Costs at
the expiration of a Lease Year, then as to the item so established,
Tenant will only be entitled to dispute such charge for a period of
six (6) months after such charge is billed to Tenant, and Tenant
specifically waives any right to dispute any such charge anytime after
the expiration of said six (6) month period.
i. OCCUPANCY ADJUSTMENT -- If the Building is less than eighty-five
percent (85%) occupied during the Calendar Year or during any Lease
Year or Partial Lease Year subsequent to the Calendar Year, then the
Operating Costs will be adjusted during the Calendar Year and the
Operating Costs and Utility and Energy Costs will be adjusted during
any such Lease Year or Partial Lease Year so as to reflect eighty-five
percent (85%) occupancy. The aforesaid adjustment will only be made
with respect to those items that are in fact affected by variations in
occupancy levels.
j. The parties agree that Tenant's Percentage, as defined in the
Preamble, reflects and will be continually adjusted to reflect the
ratio of the gross square feet of the area rented to Lessee (including
an allocable share of all Common Facilities) [the numerator] as
compared with the total number of gross square feet of the entire
building (or additional buildings that may be constructed within the
Real Property) [the denominator] measured outside wall to outside
wall, but excluding therefrom any storage areas. Landlord shall have
the right to make changes or revisions in the Common Facilities of the
Building so as to provide additional leasing area. Landlord shall also
have the right to construct additional buildings in the Real Property
for such purposes as Landlord may deem appropriate, and subdivide the
lands for that purpose if necessary, and upon so doing, the Real
Property shall become the subdivided lot on which the Building in
which the Premises is located. However, if any service provided for in
subparagraph a. or any utility provided for in subparagraph b. is
separately billed or separately metered within the Building, then the
square footage so billed or metered shall be subtracted from the
denominator and the Tenant's proportionate share for such service
and/or utility shall be separately computed, and the Base Period Costs
for such item shall not include any charges attributable to said
square footage. Tenant understands that as a result of changes in the
layout of the Common Facilities from time to time occurring due to, by
way of example and not by way of limitation, the rearrangement of
corridors, the aggregate of all Building tenant proportionate shares
may be equal to, less than or greater than one hundred percent (100%).
-END-
EXHIBIT H
---------
ELECTRICITY RIDER
-----------------
ELECTRICITY: The cost of electric current which is supplied by Landlord for use
by Tenant in the Premises, other than for heating or air conditioning purposes,
will be reimbursed to Landlord at the Electric Rate. The "Electric Rate" will
mean the applicable time of day cost actually incurred by Landlord for
electricity supplied to the Building (including all applicable surcharges,
demand, line loss factor, taxes and other sums payable in respect to thereof).
a. From and after the Commencement Date, Tenant agrees to pay as Additional
Rent an estimated electrical charge of $.13 per gross rentable square foot per
month, payable on the first day of each and every month, until such time as an
electrical survey can be performed pursuant to subparagraph b. below.
b. Landlord will have an electrical engineering consultant make a survey of
the electric power used in the Premises to determine Tenant's average monthly
electric consumption, and the costs of such survey will be borne by Tenant. The
findings of the consultant will be conclusive and binding on Landlord and
Tenant. After Landlord's consultant has submitted its report, Tenant will pay to
Landlord, within ten (10) days after demand therefor by Landlord, the amount
(based on the average monthly consumption found by such consultant and applying
the Electric Rate thereto) owing from the Commencement Date through and
including the then current month, adjusted for the estimated electrical charges
already paid, and thereafter, on the first day of every month, in advance, the
cost of the electricity used in the Premises based on the amount set forth as
the average monthly consumption in the report. Such costs will constitute
Additional Rent due under the Lease. Proportionate sums will be payable for
periods less than a full month.
c. In the event that there will be an increase or decrease in the Electric
Rate, the Additional Rent payable for electricity will be adjusted equitably to
reflect the increase or decrease in the Electric Rate.
d. Tenant will notify Landlord immediately upon the introduction of any
office equipment or lighting materially different from or in addition to that on
the Premises as of Landlord's electrical survey. The introduction of any new or
materially different equipment or lighting will, at Landlord's election, be
cause for a resurveying of the Premises at Tenant's expense. Landlord reserves
the right to inspect the Premises to insure compliance with this provision.
e. Landlord will not be liable in any way to Tenant for any loss, damage or
expense which Tenant may sustain or incur as a result of any failure, defect or
change in the quantity or character of electrical energy available for
redistribution to the Premises pursuant to this Exhibit H, nor for any
interruption in the supply, and Tenant agrees that such supply may be
interrupted for inspections, repairs and replacements and in emergencies. In no
event will Landlord be liable for any business interruption suffered by Tenant.
(f) Landlord, at Tenant's expense, will furnish and install all replacement
lighting tubes, lamps, ballasts, starters and bulbs required in the Premises.
g. Tenant's use of electrical service in excess of Building Hours will, at
Landlord's election, be cause for a resurveying of the Premises at Tenant's
expense.
--END-
EXHIBIT I
---------
SAMPLE FORM LETTER OF CREDIT
[DATE]
TO:
[Name of Beneficiary]
[Address]
RE: IRREVOCABLE LETTER OF CREDIT
Gentlemen:
By order of our client, _____________________, we hereby establish our
irrevocable Letter of Credit No. ______ in your favor for a sum or sums not to
exceed $________________- (__________________ U.S. Dollars) in the aggregate,
effective immediately.
This Letter of Credit shall be payable in immediately available funds in
U.S. Dollars. Funds under this credit are payable to you upon your presentation
to us a sight draft drawn on us in the form annexed hereto. All drafts must be
marked: "Drawn under Letter of Credit No. ___ of [Name of Issuing Bank].
This Letter of Credit shall expire twelve (12) months from the date hereof;
but is automatically extendable, so that this Letter of Credit shall be deemed
automatically extended, from time to time, without amendment, for one year from
the expiration date hereof and from each and every future expiration date,
unless at least sixty (60) days prior to any expiration date we shall notify you
by registered mail that we elect not to consider this Letter of Credit renewed
for any such additional period. The final expiration date hereof shall be no
earlier than [fill in suitable date after expiration of lease].
This Letter of Credit is transferable and may be transferred one or more
times. However, no transfer shall be effective unless advice of such transfer is
received by us in our standard form.
We hereby agree to honor each draft drawn under and in compliance with this
Letter of Credit, if duly presented at our offices at ________________ or at any
other of our offices.
This Letter of Credit is subject to the International Standby Practices
1998, International Chamber of Commerce Publication No. 590.
[Name of Bank]
By:
[Annex Bank's Form of Sight Draft]