STANDARD INDUSTRIAL/COMMERCIAL MULTI-TENANT LEASE -
NET
AIR COMMERCIAL REAL ESTATE ASSOCIATION
1. Basic
Provisions ("Basic Provisions").
1.1
Parties: This
Lease ( "Lease" ), dated
for reference purposes only February 14, 2007
is
made by and between Land Associates Trust, E.
C
. Alsenz, Trustee
_____________________________________________________________________________________________________________________
____________________________________________________________________________________________________________________________________________________________________
("Lessor")
and
T3
Motion, Inc., a Delaware
Corporation
______________________________________________________________________________________________________
_______________________________________
______________
__________________________________________________________________________________________________________
("Lessee" ),
(collectively the "Parties", or individually a
"Party").
1.2(a)
Premises:
That certain portion of the Project (as defined below),
including all improvements therein or to be provided by Lessor
under the terms of this Lease, commonly known by the
street
address of 2990 Airway Avenue
located
in the City of Costa Mesa
, County of Orange,
State of California
, with zip code 92626 ,
as outlined on Exhibit A
_____ attached hereto ("Premises ") and generally described as
(describe briefly the nature of the
Premises): an ap
p
roximate 33
, 520 square foot Premises
In
addition to Lessee's rights to use and occupy the Premises as
hereinafter specified, Lessee shall have non-exclusive rights to
the any utility raceways of the building containing the Premises
("Building") and to the
common Areas (as defined in Paragraph 2.7 below), but shall not
have any rights to the roof or exterior walls of the Building or to
any other buildings in the Project. The Premises, the Building, the
Common Areas, the land upon which they are located, along with all
other buildings and improvements thereon, are herein collectively
referred to as the "Project" (See also
Paragraph 2)
1.2(b)
Parking : 67
_____________________________
unreserved vehicle parking spaces. (See also
Paragraph 2.6)
1.3
Term : 5
__________________years and 3
_______________________________________ months
("Original
Term") commencing June 1, 2007
("Commencement
Date" ) and ending Aug
ust 31, 2012
("Expiration Date" ).
(See also Paragraph 3)
1.4
Early Possession:
Upon full execution of the lease
document,
payment of required monies,
providing evidence of insurance as identified in this lease,
completion of tenant improvements by Lessor and the current
tenant vacating the Premises ( "Early Possession
Date" ).
(See
also Paragraphs 3.2 and 3.3)
1.5
Base Rent: $
22,458.40
per
month ("Base Rent"),
payable on the first day of each month commencing June 1, 2007
.(See also Paragraph 4)
[
x] If this box is checked, there are provisions in this
Lease for the Base Rent to be adjusted.
1.6
Lessee's Share of
Common Area Operating Expenses
:
fifty
percent
(50 %) ("Lessee's Share"). Lessee's Share
has been calculated by dividing the approximate square
footage of the Premise by the approximate square footage of
the Project. In the event that the size of the
Premises and/or the Project are modified during the term of
this Lease, Lessor shall recalculate Lessee's Share to
reflect such modification.
1.7 Base
Rent and Other Monies Paid Upon Execution:
(a) Base
Rent : $11,229.20 for the period
June 1 - June 30, 2007
______
(b) Common Area
Operating Expenses : $ 4,
022.40* for the period June 1 – June
30, 07.
(c) Security
Deposit : $ 26,
673.53 ________ ( "Security
Deposit" ). (See also Paragraph 5)
(d) Other
:
$ _____________________for ___________________________.
(e) Total Due Upon
Execution of this Lease : $ 41,
925.13 .
| |
|
PAGE 1 OF
17 |
|
|
| |
|
|
|
|
| INITIALS |
|
|
|
INITIALS
|
| © 1999 - AIR COMMERCIAL REAL
ESTATE ASSOCIATION |
|
FORM MTN-G-3/0GE
|
1.8
Agreed Use : General office,
assembly, storage and distribution of electric vehicles
______________________________________________________________________(See
also Paragraph G)
1.9 Insuring
Party. (Lessor is the) "Insuring Party". (See also
Paragraph 8)
1.10 Real
Estate Brokers : (See also Paragraph
15)
(a) Representation
: The following real estate brokers (the
"Brokers ") and
brokerage relationships exist in this transaction (check
applicable boxes):
[x ] CB Richard Ellis - Desper/Spatafore
represents Lessor exclusively ("Lessor's Broker ");
[x ] Lee & Associates - Hirsch/Schafer
represents Lessee exclusively ("Lessee's Broker "); or
[
]______________________________________ represents both
Lessor and Lessee ("Dual
Agency").
(b)
Payment to
Brokers: Upon execution and delivery
of this Lease by both Parties, Lessor shall pay to the
Brokers the brokerage fee agreed to in a separate written
agreement (or if there is no such agreement the sum of
__________________or ______________% of the total Base Rent
for the brokerage services rendered by the
Brokers).
1.11
Guarantor.
The obligations of the Lessee under this
Lease are to be guaranteed by Ki Yong Nam
("Guarantor"). (See
also Paragraph 37)
1.12
Attachments.
Attached hereto are the following, all of which constitute a
part of this Lease: [x] an Addendum consisting of
Paragraphs 52
through 53
;
[
] a site plan depicting the Premises;
[
] a site plan depicting the Project;
[
] a current set of the Rules and Regulations for the
Project;
[
] a current set of the Rules and Regulations adopted by the
owners' association.
[
] other (specify);
_____________________________________________________________________________________________________________________________________________________________________________
2.1
Letting. Lessor
hereby leases to Lessee, and Lessee hereby leases from
Lessor, the Premises, for the term, at the rental, and upon
all of the terms, covenants and conditions set forth in this
Lease. Unless otherwise provided herein, any statement of
size set forth in this Lease, or that may have been used in
calculating Rent, is an approximation which the Parties agree
is
reasonable and any payments based thereon are not subject to
revision whether or not the actual size is more or
less. NOTE: Lessee is advised to verify
the actual size prior to executing this
Lease.
2.2
Condition.
Lessor shall deliver that portion of the Premises
contained within the Building ("Unit") to Lessee broom clean and
free of debris on the Commencement Date or the Early
Possession Date, whichever first occurs
("Start Date"), and,
so long as the required service contracts described in
Paragraph 7.1(b) below are obtained by Lessee and in effect
within thirty days following the Start Date, warrants that
the existing electrical, plumbing, fire sprinkler, lighting,
heating, ventilating and air conditioning
systems ("HVAC"), loading doors, sump
pumps, if any, and all other such elements in the Unit, other
than those constructed by Lessee, shall be in good operating
condition on said date, that the structural elements of the
roof, bearing walls and foundation of the Unit shall be free
of material defects, and that the Unit does not contain
hazardous levels of any mold or fungi defined as toxic under
applicable state or federal law. If a non-compliance with
such warranty exists as of the Start Date, or if one of such
systems or elements should malfunction or fail within the
appropriate warranty period, Lessor shall, as Lessor's sole
obligation with respect to such matter, except as
other wise provided in this Lease, promptly alter
receipt of written notice from Lessee setting forth with
specificity the nature and extent of such non-compliance,
malfunction or failure, rectify same at Lessor's
expense. The warranty periods shall be as
follows: (i) 6 months as to the HVAC systems, and (ii) 30
days as to the remaining systems and other elements of the
Unit. If Lessee does not give Lessor the
required notice within
the appropriate warranty period, correction of any such
non-compliance, malfunction or failure shall be the
obligation of the Lessee at Lessee's sole cost and expense
(except for the repairs to the fire sprinkler systems, roof,
foundations, and/or bearing walls - see Paragraph
7).
2.3
Compliance.
Lessor warrants that to the best of its knowledge the
improvements on the Premises and the Common Areas comply with
the building codes that were in effect at the time that each
such improvement, or portion thereof, was constructed, and
also with all applicable laws, covenants or restorations of
record, regulations, and ordinances in effect on the Start
Date ("Applicable
Requirements"). Said warranty does not apply to the
use to which Lessee will put the Premises, modifications
which may be required by the Americans with Disabilities Act
or any similar laws as a result of Lessee's use (see
Paragraph 49), or to any Allegations or Utility Installations
(as defined in Paragraph 7.3(a)) made or to be made by
Lessee. NOTE: Lessee is
responsible for determining whether or not the Applicable
Requirements and especially the zoning are appropriate (or
Lessee's intended use, and acknowledges that past uses of the
Premises may no longer be allowed
. If the Premises do not comply with said
warranty, Lessor shall, except as otherwise provided,
promptly after receipt of written notice from Lessee setting
forth with specificity the nature and extent of such
non-compliance, rectify the same at Lessor's
expense. If Lessee does not give Lessor
written notice of a non-compliance with this warranty within
6 months following the Start Date, correction of that
non-compliance shall to the obligation of Lessee at Lessee's
sole cost and expense. If the Applicable
Requirements are herefter changed so as to require during the
term of this Lease the construction of an addition to or an
alteration of the Unit, Premises and/or Building, the
remediation of any Hazardous Substance, or the reinforcement
or other physical modification of the Unit, Premises and/or
Building ("Capital
Expenditure"), Lessor and Lessee shall allocate the
cost of such work as follows:
| |
|
PAGE 2 OF
17 |
|
|
| |
|
|
|
|
| INITIALS |
|
|
|
INITIALS
|
| © 1999 - AIR COMMERCIAL REAL
ESTATE ASSOCIATION |
|
FORM MTN-G-3/0GE
|
(a) Subject
to Paragraph 2.3(c) below, if such Capital Expenditures are
required as a result of the specific and unique use of the
Premises by Lessee as compared with uses by tenants in
general, Lessee shall be fully responsible for the cost
thereof, provided, however that if such Capital Expenditure
is required during the last 2 years of this Lease and the
cost thereof exceeds 6 months' Base Rent, Lessee may instead
terminate this Lease unless Lessor notifies Lessee, in
writing, within 10 days after receipt of Lessee's termination
notice that Lessor has elected to pay the difference between
the actual cost thereof and the amount equal to 6 months'
Base Rent. If Lessee elects termination, Lessee shall
immediately cease the use of the Premises which requires such
Capital Expenditure and deliver to Lessor written notice
specifying a termination date at least 90 days thereafter.
Such termination date shall, however, in no event to earlier
than the last day that Lessee could legally utilize the
Premises without commencing such Capital Expenditure.
(b) If
such Capital Expenditure is not the result of the
specific and unique use of the Premises by Lessee (such as,
governmentally mandated seismic modifications), then Lessor
shall pay for such Capital Expenditure and Lessee shall only
be obligated to pay, each month during the remainder of the
term of this Lease, on the date that on which the Base Rent
is due, an amount equal to 144th of the portion of such costs
reasonably attributable to the Premises. Lessee shall pay
interest on the balance but may prepay its obligation at
any time. If, however, such Capital Expenditure is required
during the last 2 years of this Lease or if Lessor reasonably
determines that it is not economically feasible to pay its
share thereof, Lessor shall have the option to terminate this
Lease upon 90 days prior written notice to Lessee unless
Lessee notifies Lessor, in writing, within 10 days after
receipt of Lessor's termination notice that Lessee will pay
for such Capital Expenditure. If Lessor does not elect to
terminate, and fails to tender its share of any such Capital
Expenditure, Lessee may advance such funds and deduct same,
with Interest, from Rent until Lessor's share of such costs
have been fully paid. If Lessee is unable to finance Lessor's
share, or if the balance of the Rent due and payable for the
remainder of this Lease is not sufficient to fully reimburse
Lessee on an offset basis, Lessee shall have the right to
terminate this Lease upon 30 days written notice to
Lessor.
(c) Notwithstanding
the above, the provisions concerning Capital Expenditures are
intended to apply only to non-voluntary, unexpected, and new
Applicable Requirements. If the Capital
Expenditures are instead triggered by Lessee as a result of an
actual or proposed change in use, change in intensely of use, or
modification to the Premises then, and in that event, Lessee
shall either (i) immediately cease such changed use or intensity of
use and/or take such other steps as may be necessary to eliminate
the requirement for such Capital Expenditure, or (ii) complete such
Capital Expenditure at its own expense. Lessee shall not have any
right to terminate this Lease.
2.4
Acknowledgements.
Lessee acknowledges that: (a) it has been advised by Lessor
and/or Brokers to satisfy itself with respect to the
condition of the Premises (including but not limited to
the electrical, HVAC and fire sprinkler systems, security,
environmental aspects, and compliance with Applicable
Requirements and the Americans with Disabilities Act), and
their suitability for Lessee's intended use, (b) Lessee has
made such investigation as it deems necessary with reference
to such mailers and assumes all responsibility therefore as
the same relate to its occupancy of the Premises, and (c)
neither Lessor, Lessor's agents, nor Brokers have made any
oral or written representations or warranties with respect to
said matters other than as set forth in this Lease. In
addition, Lessor acknowledges that; (i) Brokers have made no
representations, promises or warranties concerning Lessee's
ability to honor the Lease or suitability to occupy the
Premises, and (ii) it is Lessor's sole responsibility to
investigate the financial capability and/or suitability of
all proposed tenants.
2.5
Lessee as Prior
Owner/Occupant. The warranties made by
Lessor in Paragraph 2 shall be of no force
or effect if immediately prior
to the Start Date Lessee was the owner or occupant of the
Premises. In such event, Lessee shall be
responsible for any necessary connective
work. 2.6
Vehicle Parking.
Lessee shall be entitled to use the number of parking spaces
specified in Paragraph 1.2(b) on these portions of the Common
Areas designated from time to time by Lessor for parking.
Lessee shall not use more parking spaces than said number.
Said parking spaces shall be used for parking by vehicles no
larger than full-size passenger automobiles or pick-up
trucks, herein called "Permitted Size Vehicles".
Lessor may regulate the loading and unloading to vehicles by
adopting Rules and Regulations as provided in Paragraph
2.9. No vehicles other than Permitted Size
Vehicles may be parked in the Common Area without the prior
whiten permission of Lessor. In addition:
(a) Lessee
shall not permit or allow any vehicles that belong to or are
controlled by Lessee or Lessee's employees, suppliers,
shippers, customers, contractors or invitees to be loaded,
unloaded, or parked in areas other than those designated by
Lessor for such activities.
(b) Lessee
shall not service or store any vehicles in the Common
Areas.
(c) If
Lessee permits or allows any of the prohibited
activities described in this Paragraph 2.6, then Lessor shall
have the right, without notice, in addition to such other
rights and remedies that it may have, to remove or tow away
the vehicle involved and charge the cost to Lessee, which
cost shall to immediately payable upon demand by
Lessor.
2.7
Common
Areas - Definition .
The term
"Common Areas" is defined as all areas and facilities
outside the Premises and within the exterior boundary line of
the Project and interior utility raceways and installations
within the Unit that are provided and designated by the
Lessor from lime to time for the general non-exclusive use of
Lessor, Lessee and other tenants of the Project and their
respective employees, suppliers, shippers, customers,
contractors and invitees, including parking areas, loading
and unloading areas, trash areas, roadways, walkways,
driveways and landscaped areas.
2.8 Common
Areas - Lessee's Rights . Lessor grants to Lessee, for
the benefit of Lessee and its employees, suppliers, shippers,
contractors, customers and invitees, during the term of this
Lease, the non-exclusive right to use. In common with others
entitled to such use, the Common Areas as they exist from
time to time, subject to any rights, powers, and privileges
reserved by Lessor under the terms hereof or under the terms
to any rules and regulations or restrictions governing the
use of the Project. Under no circumstances shall the right
herein granted to use the Common Areas be deemed to include
the right to store any property, temporarily or permanently,
in the Common Areas. Any such storage shall be permitted only
by the prior written consent of Lessor or Lessor's designated
agent, which consent may be revoked at any time. In the event
that any unauthorized storage shall occur then Lessor shall
have the right, without notice, in addition to such other
rights and
remedies that it may have, to remove the properly and charge
the cost to Lessee, which cost shall be immediately payable
upon demand by Lessor.
| |
|
PAGE 3 OF
17 |
|
|
| |
|
|
|
|
| INITIALS |
|
|
|
INITIALS
|
| © 1999 - AIR COMMERCIAL REAL
ESTATE ASSOCIATION |
|
FORM MTN-G-3/0GE
|
2.9 Common
Areas - Rules and Regulations , Lessor or such other
person(s) as Lessor may appoint shall have the exclusive
control and management of the Common Areas and shall have the
right, from time to time, to establish, modify, amend and
enforce reasonable rules and regulations ("Rules and
Regulations") for the management, safety, care, and
cleanliness of the grounds, the parking and unloading of
vehicles and the preservation of good order, as well as for
the convenience of other occupants or tenants of the Building
and the Project and their invitees, Lessee agrees to abide by
and conform to all such Rules and Regulations, and shall use
its best efforts to cause its employees, suppliers, shippers,
customers, contractors and invitees to so abide and
conform. Lessor shall not be responsible to Lessee for the
non-compliance with said Rules and Regulations by other
tenants of the Project.
2.10 Common
Areas - Chan g es . Lessor shall
have the right, in Lessor's sole discretion, from time to
time:
(a) To
make changes to the Common Areas, including, without limitation,
changes in the location, size, shape and number of driveways,
entrances, parking spaces, parking areas, loading and unloading
areas, ingress, egress, direction of traffic, landscaped areas,
walkways and utility raceways;
(b)
To close temporarily any of the Common Areas for maintenance
purposes so long as reasonable access to the Premises remains
available;
(c) To
designate other land outside the boundaries of the Project to be a
part of the Common Areas;
(d) To
add additional buildings and improvements to the Common
Areas;
(e) To
use the Common Areas while engaged in making additional
improvements, repairs or alterations to the Project, or any portion
thereof; and
(f) To
do and perform such other acts and make such other changes
in, to or with respect to the Common Areas and Project as Lessor
may, in the exercise of sound business judgment, deem to be
appropriate.
3.1 Term.
The Commencement Date, Expiration Date and Original Term of
this Lease are as specified in Paragraph 1.3.
3.2 Early
Possession. If Lessee totally or partially occupies
the Premises prior to the Commencement Date, the obligation
to pay Base Rent shall be abated for the period of such early
possession. All other terms of this Lease (including but not
limited to the obligations to pay Lessee's Share of Common
Area Operating Expenses, Real Property Taxes and insurance
premiums and to maintain the Premises) shall be in effect
during such period. Any such early possession shall
not affect the Expiration Date.
3.3 Delay
in Possession.
Lessor agrees to use its best commercially reasonable efforts
to deliver possession of the Premises to Lessee by the
Commencement Date. If, despite said efforts, Lessor is unable
to deliver possession as agreed, Lessor shall not be subject
to any liability therefore, nor shall such failure affect the
validity of this Lease or change the Expiration Date. Lessee
shall not, however, be obligated to pay Rent or perform its
other obligations until Lessor delivers possession of the
Promises and any period of Rent abatement that Lessee would
otherwise have enjoyed shall run from the date of the
delivery of possession and continue for a period equal to
what Lessee would otherwise have enjoyed, but minus any days
of delay caused by the acts or omissions of Lessee. If
possession is not delivered within 60 days after the
Commencement Date, Lessee may, at its option, by notice in
writing within 10 days after the end of such 60 day period,
cancel this Lease, in which event the Parties shall be
discharged from all obligations hereunder. If such written
notice is not received by Lessor within said 10 day period,
Lessee's right to cancel shall terminate. Except as otherwise
provided, if possession is not tendered to Lessee by the
Start Date and Lessee does not terminate this Lease, as
aforesaid, any period of rent abatement that Lessee would
otherwise have enjoyed shall run from the date of delivery of
possession and continue for a period equal to what Lessee
would otherwise have enjoyed under the terms hereof, but
minus any days of delay caused by the acts or omissions of
Lessee. If possession of the Premises is not delivered within
4
months after the Commencement Date, this Lease shall
terminate unless other agreements are reached between Lessor
and Lessee, in writing.
3.4 Lessee
Compliance . Lessor shall
not be required to tender possession of the Premises to
Lessee until Lessee complies with its obligation to provide
evidence of insurance (Paragraph 8.5). Pending
delivery
of such evidence, Lessee shall be required to perform all of
its obligations under this Lease from and after the Start
Date, including the payment of Rent, notwithstanding Lessor's
election to withhold possession pending receipt of such
evidence of insurance. Further, if Lessee is required to
perform any other conditions prior to or concurrent with
the Start Date, the Start Date shall occur but Lessor may
elect to withhold possession until such conditions are
satisfied.
4. 1 Rent
Defined. All monetary obligations of
Lessee to Lessor under the terms of this Lease (except for
the Security Deposit) are deemed
to be rent ("Rent").
4.2 Common
Area Operating Expenses. Lessee shall pay to Lessor
during the term hereof, in addition to the Base Rent,
Lessee's Share (as specified in Paragraph 1.6) of all Common
Area Operating Expenses, as hereinafter defined, during each
calendar year of the term of this Lease, in accordance with the
following provisions:
(a) "Common
Area Operating Expenses" are
defined, for purposes of this Lease, as all costs incurred by
Lessor rotating to the ownership and operation of the
Project, including, but not limited to, the
following:
(i) The
operation, repair and maintenance, in neat, clean, good order and
condition , and if necessary, the replacement, of the
following:
(aa) The Common
Areas and Common Area
improvements, including parking
areas, loading and unloading areas, trash areas,
roadways, parkways, walkways, driveways, landscaped areas, bumpers,
irrigation systems, Common Area lighting localities, fences and
gates, elevators, roofs, and roof drainage systems.
(bb) Exterior
signs and any tenant directories.
(cc) Any
fire sprinkler systems.
| |
|
PAGE 4 OF
17 |
|
|
| |
|
|
|
|
| INITIALS |
|
|
|
INITIALS
|
| © 1999 - AIR COMMERCIAL REAL
ESTATE ASSOCIATION |
|
FORM MTN-G-3/0GE
|
(ii) The
cost of water, gas, electricity and telephone to service the Common
Areas and any utilities not separately metered.
(iii) The
cost of trash disposal, pest control services, property management,
security services, owners' association dues and fees, the cost
to repaint the exterior of any structures and the cost to any
environmental inspections.
(iv) Reserves
set aside for maintenance, repair and/or
replacement of Common Area
improvements and equipment.
(v) Real
Property Taxes (as defined in Paragraph 10).
(vi) The
cost to the premiums for the insurance maintained by Lessor
pursuant to Paragraph 6.
(vii) Any
deductible portion of an insured loss concerning the Building or
the Common Areas.
(viii) Auditors',
accountants' and attorneys' fees and costs related to the
operation, maintenance, repair and replacement of the
Project.
(ix) The
cost of any capital improvement to the Building or the Project not
covered under the provisions of Paragraph 2.3 provided;
however, that Lessor shall allocate the cost of any such capital
improvement over a 12 year period and Lessee shall not be required
to pay more than Lessee's Share of 1/144th of the cost of such
capital improvement in any given month.
(x)
The cost of any other services to be provided by Lessor that are
stated elsewhere in this Lease to be a Common Area Operating
Expense.
(b)
Any Common Area Operating
Expenses and Real Property Taxes that are specifically attributable
to the Unit, the Building or to any other building in the
Project or to the operation, repair and maintenance thereof, shall
be allocated entirely to such Unit, Building, or other building.
However, any Common Area Operating Expenses and Real Property Taxes
that are not specifically attributable to the Building or to any
other building or to the operation, repair and maintenance thereof,
shall be equitably allocated by Lessor to all buildings in the
Project.
(c)
The
inclusion of the improvements, facilities and services set
forth in subparagraph 4.2(a) shall not be
deemed to impose an obligation upon Lessor to either have
said improvements or facilities or to provide those services
unless the Project already has the same, Lessor already
provides the services, or Lessor has agreed elsewhere in this
Lease to provide the same or some of them.
(d)
Lessee's
Share to Common Area Operating Expenses is payable
monthly on the same day as the Base Rent is due hereunder.
The amount of such payments shall be based on Lessor's
estimate of the annual Common Area Operating Expenses, within
60 days after written request (but not more than once each
year) Lessor shall deliver to Lessee a reasonably detailed
statement showing Lessee's Share of the actual Common Area
Operating Expenses incurred during the preceding year. If
Lessee's payments during such year exceed Lessee's Share,
Lessor shall credit the amount of such over-payment against
Lessee's future payments. If Lessee's payments during such
year were less than Lessee's Share, Lessee shall pay to
Lessor the amount of the deficiency within 10 days after
delivery by Lessor to Lessee to the statement.
(e)
Common
Area Operating Expenses shall not include any expenses paid
by any tenant directly to third parties, or as to which
Lessor is otherwise reimbursed by any third party, other
tenant, or insurance proceeds.
4.3 Payment.
Lessee shall cause payment of Rent to be received
by Lessor in lawful money to the United States, without
offset or deduction (except as specifically permitted in this
Lease), on or before the day on which it is due. All monetary
amounts shall be rounded to the nearest whole dollar. In the
event that any invoice prepared by Lessor is inaccurate, such
inaccuracy shall not constitute a waiver and Lessee shall be
obligated to pay the amount set forth in this Lease. Rent for
any period during the term hereof which is (or less than one
full calendar month) shall be prorated based upon the actual
number of days of said month. Payment of Rent shall be made
to Lessor at its address stated herein or to such other
persons or place as Lessor may from time to time designate in
writing. Acceptance of a payment which is less than the
amount that is due shall not be a waiver of Lessor's rights
to the balance of such Rent, regardless of Lessor's
endorsement of any check so stating. In the event that any
check, draft, or other instrument of payment given by Lessee
to Lessor is dishonored for any reason, Lessee agrees to pay
to Lessor the sum of $25 in addition to any Late Charge and
Lessor, at its option, may require all future Rent to paid by
cashier's check. Payments will be applied first to accrued
late charges and attorney's fees, second to accrued interest,
then to Base Rent and Common Area Operating Expenses, and any
remaining amount to any other outstanding charges or
costs.
5. Security
Deposit. Lessee shall deposit with Lessor upon execution
hereof the Security Deposit as security for Lessee's faithful
performance of its obligations under this Lease. If Lessee fails to
pay Rent, or otherwise Defaults under this Lease, Lessor may use,
apply or retain all or any portion of said Security Deposit for the
payment of any amount already due Lessor, for Rents which will be
due in the future, and/ or to reimburse or compensate Lessor for
any liability, expense, loss or damage which Lessor may suffer or
incur by reason thereof. If Lesser uses or applies all or any
portion of the Security Deposit, Lessee shall within 10 days after
written request therefore deposit monies with Lessor sufficient to
restore said Security Deposit to the full amount required by this
Lease. If the Base Rent increases during the term of this Lease,
Lessee shall, upon written request from Lessor, deposit additional
monies with Lessor so that the total amount of the Security Deposit
shall at all times bear the same proportion to the increased Base
Rent as the initial Security Deposit bore to the initial Base Rent.
Should the Agreed Use be amended to accommodate a material change
in the business of Lessee or to accommodate a sublessee or
assignee, Lessor shall have the right to increase the Security
Deposit to the extent necessary, in Lessor's reasonable judgment,
to account for any increased wear and tear that the Premises may
suffer as a result thereof. If a change in control of Lessee occurs
during this Lease and following such change the financial condition
of Lessee is, in Lessor's reasonable judgment, significantly
reduced, Lessee shall deposit such additional monies with Lessor as
shall be sufficient to cause the Security Deposit to be at a
commercially reasonable level based on such change in financial
condition. Lessor shall not be required to keep the Security
Deposit separate from its general accounts. Within 90 days after
the expiration
or termination of this Lease, Lesser shall return that portion of
the Security Deposit not used or applied by Lessor. No part of the
Security Deposit shall be considered to be held in trust, to bear
interest or to be prepayment for any monies to be paid by Lessee
under this Lease.
6. Use.
6.1 Use
. Lessee shall use and occupy the Premises only for the Agreed Use,
or any other legal use which is reasonably comparable thereto, and
for no other purpose. Lessee shall not use or permit the use of
the
Premises in a manner that is unlawful, creates damage, waste or a
nuisance, or that disturbs occupants of or causes damage to
neighboring premises or properties. Other than guide, signal and
seeing eye dogs, Lessee shall not keep or allow in the
Premises any pets, animals, birds, fish, or reptiles. Lessor shall
not unreasonably withhold or delay its consent to any written
request for a modification of the Agreed Use, so long as the same
will not impair the structural integrity of the Building or the
mechanical or electrical systems therein, and/or is not
significantly more burdensome to the Project. If Lessor elects to
withhold consent, Lessor shall within 7 days after such request
give written notification of same, which notice shall include an
explanation of Lessor's objections to the change in the Agreed
Use.
6.2 Hazardous
Substances.
(a) Reportable
Uses Require Consent. The term "Hazardous Substance"
as used in this Lease shall mean any product, substance, or
waste whose presence, use, manufacture, disposal,
transportation, or release, either by itself or in
combination with other materials expected to on the Premises,
is either, (i) potentially injurious to the public health,
safety or welfare, the environment or the Premises, (ii)
regulated or monitored by any governmental authority, or
(iii) a basis for potential liability of Lessor to any
governmental agency or third party under any applicable
statute or common law theory. Hazardous Substances shall
include, but not be limited to, hydrocarbons, petroleum,
gasoline, and/or crude oil or any products, by-products or
fractions thereof. Lessee shall not engage in any activity in
or on the Promises which constitutes a Reportable Use of
Hazardous Substances without the express prior written
consent of Lessor and timely compliance (at Lessee's expense)
with all Applicable Requirements. "Reportable Use" shall mean
(i) the installation or use of any above or below ground
storage tank, (ii) the generation, possession, storage, use,
transportation, or disposal of a Hazardous Substance that
requires a permit from, or with respect to which a report,
notice, registration or business plan is required to be filed
with, any governmental authority, and/or (iii) the presence
at the Premises of a Hazardous Substance with respect to
which any Applicable Requirements requires that a notice to
given to persons entering or occupying the Premises or
neighboring properties. Notwithstanding the foregoing, Lessee
may use any ordinary and customary materials reasonably
required to be used in the normal course of the Agreed Use,
ordinary office supplies (copier toner, liquid paper, glue,
etc.) and common household cleaning materials, so long as
such use is in compliance with the Applicable
Requirements, is not a Reportable Use, and does not expose
the Premises or neighboring property to any meaningful risk
of contamination or damage or expose Lessor to any liability
therefore. In addition, Lessor may condition its consent to
any Reportable Use upon receiving such additional assurances
as Lessor reasonably deems necessary to protect itself, the
public, the Premises and/or the environment against damage,
contamination, injury and/or liability, including, but not
limited to, the installation (and removal on or before Lease
expiration or termination) of protective modifications (such
as concrete encasements) and/or increasing the Security
Deposit.
| |
|
PAGE 5 OF
17 |
|
|
| |
|
|
|
|
| INITIALS |
|
|
|
INITIALS
|
| © 1999 - AIR COMMERCIAL REAL
ESTATE ASSOCIATION |
|
FORM MTN-G-3/0GE
|
(b) Duty
to I nform Lessor. If
Lessee knows, or has reasonable cause to believe, that a
Hazardous Substance has come to be located in, on, under or
about the Premises, other than as previously consented to by
Lessor, Lessee shall immediately give written notice of such
fact to Lessor, and provide Lessor with a copy of any report,
notice, claim or other documentation which it has concerning
the presence of such Hazardous Substance.
(c) Lessee
Remediation. Lessee shall not cause or permit any
Hazardous Substance to be spilled or released in, on, under,
or about the Premises (including through the plumbing or
sanitary sewer system) and shall promptly, at Lessee's
expense, comply with all Applicable Requirements and take all
investigatory and/or remedial action reasonably recommended,
whether or not formally ordered or required, for the cleanup
of any contamination to, and for the maintenance, security
and/or monitoring of the Premises or neighboring properties,
that was caused or materially contributed to by Lessee, or
pertaining to or involving any Hazardous Substance brought
onto the Premises during the term of this Lease, by or for
Lessee, or any third party.
(d) Lessee
Indemnification. Lessee shall indemnify, defend and
hold Lessor, its agents, employees, lenders and ground
lessor, if any, harmless from and against any and all loss of
rents and/or damages, liabilities, judgments, claims,
expenses, penalties, and attorneys' and consultants' fees
arising out to or involving any Hazardous Substance brought
onto the Premises by or for Lessee, or any third party
(provided, however, that Lessee shall have no liability under
this Lease with respect to underground migration of any
Hazardous Substance under the Premises from areas outside of
the Project not caused or contributed to by Lessee). Lessee's
obligations shall include, but not be limited to, the effects
of any contamination or injury to person, property or the
environment created or suffered by Lessee, and the cost of
investigation, removal, remediation, restoration and/or
abatement, and shall survive the expiration or termination of
this Lease. No termination, cancellation or release agreement
entered into by Lessor and Lessee shall release Lessee from
its obligations under this Lease with respect to Hazardous
Substances, unless specifically so agreed by Lessor in
writing at the time of such agreement.
(e) Lessor
Indemnification. Lessor and its successors and assigns
shall indemnify, defend, reimburse and hold Lessee, its
employees and lenders, harmless from and against any and all
environmental damages, including the cost of remediation,
which are suffered as a direct result of Hazardous Substances
on the Premises prior to Lessee taking possession or which
are caused by the gross negligence or willful misconduct of
Lessor, its agents or employees. Lessor's obligations, as and
when required by its Applicable Requirements, shall include,
but not be limited to, the cost of investigation, removal,
remediation, restoration and/or abatement, and shall survive
the expiration or termination of this Lease.
(f) Investigations
and Remediation. Lessor shall retain the
responsibility and pay for any investigations or
remediation measures required by governmental entities having
jurisdiction with respect to the existence of Hazardous Substances
on the Premises prior to the Lessee taking possession, unless such
remediation measure is required as a result of Lessee's use
(including "Alterations", as defined in paragraph 7.3(a) below) of
the Premises, in which event Lessee shall be responsible for such
payment. Lessee shall cooperate fully in any such activities at the
request of Lessor, including allowing Lessor and Lessor's agents to
have reasonable access to the Premises at reasonable times in order
to carry out Lessor's investigative and remedial
responsibilities.
(g) Lessor
Termination Option. If a Hazardous Substance
Condition (see Paragraph 9.1(e)) occurs during the term of
this Lease, unless Lessee is legally responsible therefore
(in which case Lessee shall make the investigation and
remediation thereof required by the Applicable Requirements
and this Lease shall continue in full force and effect, but
subject to Lessor's rights under Paragraph 6.2(d) and
Paragraph 13), Lessor may, at Lessor's option, either (i)
investigate and remediate such Hazardous Substance Condition,
if required, as soon as reasonably possible at Lessor's
expense, in which event this Lease shall continue in full
force and effect, or (ii) if the estimated cost to remediate
such condition exceeds 12 times the then monthly Base Rent or
$100,000, whichever is greater, give written notice to
Lessee, within 30 days after receipt by Lessor of knowledge
of the occurrence of such Hazardous Substance Condition, of
Lessor's desire to terminate this Lease as of the date 60
days following the date of such notice. In the event Lessor
elects to give a termination notice, Lessee may, within 10
days thereafter, give written notice to Lessor of Lessee's
commitment to pay the amount by which the cost of the
remediation of such Hazardous Substance Condition exceeds an
amount equal to 12 times the then monthly Base Rent or
$100,000, whichever is greater. Lessee shall provide Lessor
with said funds or satisfactory assurance thereof within 30
days following such commitment. In such event, this Lease
shall continue in full force and effect, and Lessor shall
proceed to make such remediation as soon as reasonably
possible after the required funds are available, if Lessee
does not give such notice and provide the required funds or
assurance thereof within the time provided, this Lease shall
terminate as of the date specified in Lessor's notice of
termination.
6.3 Lessee's
Compliance with Applicable
Requirements . Except as otherwise provided in this
Lease, Lessee shall, at Lessee's sole expense, fully, diligently
and in a timely manner, materially comply with all Applicable
Requirements, the requirements of any applicable fire insurance
underwriter or rating bureau, and the recommendations of Lessor's
engineers and/or consultants which relate in any manner to
such Requirements, without regard to whether said Requirements
are now in effect or become effective after the Start Date, Lessee
shall, within 10 days after receipt of Lessor's written request,
provide Lessor with copies to all permits and other documents, and
other information evidencing Lessee's compliance with any
Applicable Requirement specified by Lessor, and shall immediately
upon receipt, notify Lessor in writing (with copies of any
documents involved) of any threatened or actual claim, notice,
citation, warning, complaint or report pertaining to or involving
the failure of Lessee or the Premises to comply with any Applicable
Requirements. Likewise, Lessee shall immediately give written
notice to Lessor of: (i) any water damage to the Premises and any
suspected seepage, pooling, dampness or other condition conducive
to the production of mold; or (ii) any mustiness or other odors
that might indicate the presence of mold in the
Premises.
6.4 Inspection;
Co
mpliance. Lessor and Lessor's "
Lender"
(as defined in Paragraph 30) and consultants shall have the right
to enter into Premises at any time, in the case of an
emergency, and otherwise at reasonable times after reasonable
notice, for the purpose of inspecting the condition of the Premises
and for verifying compliance by Lessee with this Lease. The
cost of any such inspections shall be paid by Lessor, unless a
violation of Applicable Requirements, or a Hazardous Substance
Condition (see Paragraph 9.1) is found to exist or be imminent, or
the inspection is requested or ordered by a governmental authority.
In such case, Lessee shall upon request reimburse Lessor for the
cost of such inspection, so long as such inspection is reasonably
related to the violation or contamination. In addition, Lessee
shall provide copies of all relevant material safety data sheets (
MSDS ) to
Lessor within 10 days to the receipt of written request
therefore.
| |
|
PAGE 6 OF
17 |
|
|
| |
|
|
|
|
| INITIALS |
|
|
|
INITIALS
|
| © 1999 - AIR COMMERCIAL REAL
ESTATE ASSOCIATION |
|
FORM MTN-G-3/0GE
|
7. Maintenance;
Repairs, Utility Installations; Trade Fixtures and
Alterations.
7.1
Lessee's
Obligations.
(a)
In General . Subject to
the provisions of Paragraph 2.2 (Condition), 2.3 (Compliance), 6.3
(Lessee's Compliance with Applicable Requirements), 7.2 (Lessor's
Obligations), 9 (Damage or Destruction), and 14 (Condemnation),
Lessee shall, at Lessee's sole expense, keep the Premises, Utility
Installations (intended for Lessee's exclusive use, no matter where
located), and Alterations in good order, condition and repair
(whether or not the portion of the Premises requiring repairs, or
the means of repairing the same, are reasonably or readily
accessible to Lessee, and whether or not the need for such repairs
occurs as a result of Lessee's use, any prior use, the elements or
the age of such portion of the Premises), including, but not
limited to, all equipment or facilities, such as plumbing, HVAC
equipment, electrical, lighting facilities, boilers, pressure
vessels, fixtures, interior walls, interior surfaces of exterior
walls, ceilings, floors, windows, doors, plate glass, and skylights
but excluding any items which are the responsibility of Lessor
pursuant to Paragraph 7.2. Lessee, in keeping the Premises in good
order, condition and repair, shall exercise and perform good
maintenance practices, specifically including the procurement and
maintenance at the service contracts required by Paragraph 7.1(b)
below, Lessee's obligations shall include restorations,
replacements or renewals when necessary to keep the Premises and
all improvements thereon or a part thereof in good order, condition
and state of repair.
(b) Service
Contracts .
Lessee shall, at Lessee's sole expense, procure and maintain
contracts, with copies to Lessor, in customary form and
substance for, and with contractors specializing and
experienced in the maintenance of the following equipment and
improvements, if any, if and when installed on the Premises:
(i) HVAC equipment, (ii) boiler and pressure vessels, and
(iii) clarifiers. However, Lessor reserves the right, upon
notice to Lessee, to procure and maintain any or all of such
service contracts, and Lessee shall reimburse Lessor, upon
demand, for the cost thereof.
(c) Failure
t o
Perform .
If Lessee fails to perform Lessee's obligations under this
Paragraph 7.1, Lessor may enter upon the Premises after 10 days'
prior written notice to Lessee (except in the case of an emergency,
in which case no notice shall be required), perform such
obligations on Lessee's behalf, and put the Premises in good order,
condition and repair, and Lessor shall promptly pay to Lessor a sum
equal to 115% of the cost thereof.
(d) Replacement.
Subject to Lessee's indemnification of Lessor as set forth in
Paragraph 8.7 below, and without relieving Lessee of
liability resulting from Lessee's failure to exercise and
perform good maintenance practices, if an item described in
Paragraph 7.1(b) cannot be repaired other than at a cost
which is in excess of 50% of the cost of replacing such item,
then such item shall be replaced by Lessor, and the cost
thereof shall be prorated between the Parties and Lessee
shall only be obligated to pay, each month during the
remainder of the term of this Lease, on the data on which
Base Rent is due, an amount equal to the product of
multiplying the cost of such replacement by a fraction, the
numerator of which is one, and the denominator of which is
144 (i.e. 1/144th of the cost per month). Lessee shall pay
Interest on the unamortized balance but may prepay its
obligation at any time.
7.2 Lessor's
Obligations. Subject to the provisions of Paragraphs
2.2 (Condition), 2.3 (Compliance), 4.2 (Common Area Operating
Expenses), 6 (Use), 7.1 (Lessee's Obligations), 9 (Damage or
Destruction) and 14 (Condemnation), Lessor, subject to
reimbursement pursuant to Paragraph 4.2, shall keep in good
order, condition and repair the foundations, exterior walls,
structural condition of interior bearing walls, exterior
roof, fire sprinkler system, Common Area fire alarm and/or
smoke detection systems, fire hydrants, parking lots,
walkways, parkways, driveways, landscaping, fences, signs and
utility systems serving the Common Areas and all parts
thereof, as well as providing the services for which there is
a Common Area Operating Expense pursuant to Paragraph 4.2.
Lessor shall not be obligated to paint the exterior or
interior surfaces of exterior walls nor shall Lessor be
obligated to maintain, repair or replace windows, doors or
plate glass of the Premises. Lessee expressly waives the
benefit of any statute now or hereafter in effect to the
extent it is inconsistent with the terms to this
Lease.
7.3
Utility Installations; Trade Fixtures: Alterations.
(a) Definitions.
The term "Utility Installations" refers to
all floor and window coverings, air and/or vacuum lines,
power panels, electrical distribution, security and fire
protection systems, communication cabling, lighting fixtures,
HVAC equipment, plumbing, and fencing in or on the Premises.
The term "Trade Fixtures" shall mean Lessee's machinery and
equipment that can be removed without doing material damage
to the Premises. The term "Allocations" shall mean any
modification of the improvements, other than Utility
Installations or Trade Fixtures, whether by addition or
deletion. "Lessee Owned Alterations and/or Utility
Installations" are defined as Alterations and/or Utility
Installations made by Lessee that are not yet owned by Lessor
pursuant to Paragraph 7.4(a).
(b) Consent.
Lessee shall not make any Alterations or
Utility Installations to the Premises without Lessor's prior
written consent. Lessee may, however, make
non-structural Utility installations to the interior of the
Premises (excluding the roof) without such consent but upon
notice to Lessor, as long as they are not visible from the
outside, do not involve puncturing, relocating or removing
the roof or any existing walls, will not affect the
electrical, plumbing, HVAC, and/or life safety systems, and
the cumulative cost thereof during this Lease as extended
does not exceed a sum equal to 3 month's Base Rent in the
aggregate or a sum equal to one month's Base Rent in any one
year. Notwithstanding the foregoing, Lessee shall not make or
permit any roof penetrations and/or install anything on the
roof without the prior written approval of Lessor. Lessor
may, as a precondition to granting such approval, require
Lessee to utilize a contractor chosen and/or approved by
Lessor. Any Alterations or Utility Installations that Lessee
shall desire to make and which require the consent of the
Lessor shall be presented to Lessor in written form with
detailed plans. Consent shall be deemed conditioned upon
Lessee's: (i) acquiring all applicable governmental permits,
(ii) furnishing Lessor with copies of both the permits and
the plans and specifications prior to commencement of the
work, and (iii) compliance with all conditions of said
permits and other Applicable Requirements in a prompt and
expeditious manner. Any Alienations or Utility Installations
shall be performed in a workmanlike manner with good and
sufficient materials. Lessee shall promptly upon completion
furnish Lessor with as-built plans and specifications. For
work which costs an amount in excess of one month's Base
Rent, Lessor may condition its consent upon Lessee providing
a lien and completion bond in an amount equal to 150% of the
estimated cost of such Alteration or Utility Installation
and/or upon Lessee's posting an additional Security Deposit
with Lessor.
| |
|
PAGE 7 OF
17 |
|
|
| |
|
|
|
|
| INITIALS |
|
|
|
INITIALS
|
| © 1999 - AIR COMMERCIAL REAL
ESTATE ASSOCIATION |
|
FORM MTN-G-3/0GE
|
(c)
Liens;
Bonds . Lessee shall pay, when due, all claims
for labor or materials furnished or alleged to have been
furnished to or for Lessee at or for use on the Premises, which
claims are or may be secured by any mechanic's or material
man’s lien against the Premises or any interest herein.
Lessee shall give Lessor not less than 10 days notice prior to the
commencement of any work in, on or about the Premises, and Lessor
shall have the right to post notices of non-responsibility. If
Lessee shall contest the validity of any such lien, claim or
demand, then Lessee shall, at its sole expense defend and protect
itself, Lessor and the Premises against the same and shall pay and
satisfy any such adverse judgment that may be rendered thereon
before the enforcement thereof. If Lessor shall require, Lessee
shall furnish a surety bond in an amount equal to 150% of the
amount of such contested lien, claim or demand, indemnifying Lessor
against liability for the same. If Lessor elects to participate in
any such action, Lessee shall pay Lessor's attorneys’ fees
and costs.
7.4
Ownership; Removal; Surrender; and Restoration.
(a) Ownership.
Subject to Lessor's right to require removal or elect
ownership as hereinafter provided, all Alterations and
Utility installations made by Lessee shall be the property of
Lessee, but considered a part of the Premises. Lessor may, at
any time, elect in writing to be the owner of all or any
specified part of the Lessee Owned Alterations and Utility
installations. Unless otherwise instructed per paragraph
7.4(b) hereof, all Lessee Owned Alterations and Utility
Installations shall, at the expiration or termination of this
Lease, become the property of Lessor and be surrendered by
Lessee with the Premises.
(b) Removal.
By delivery to Lessee of written notice from Lessor not
earlier than 90 and not later than 30 days prior to the end
of the term of this Lease, Lessor may require that any or all
Lessee Owned Allegations or Utility Installations be removed
by the expiration or termination of this Lease, Lessor may
require the removal at any time of all or any part of any
Lessee Owned Alterations or Utility installations made
without the required consent.
(c) Surrender;
Restoration. Lessee shall surrender the Premises by
the Expiration Date or any earlier termination date, with all
of the improvements, parts and surfaces thereof broom clean
and free of debris, and in good operating order, condition
and state of repair, ordinary wear and tear excepted.
"Ordinary wear and tear" shall not include any damage or
deterioration that would have been prevented by good
maintenance practice. Notwithstanding the foregoing, if this
Lease is for 12 months or less, then Lessee shall surrender
the Premises in the same condition as delivered to Lessee on
the Start Date with NO allowance for ordinary wear and tear.
Lessee shall repair any damage occasioned by the
installation, maintenance or removal of Trade Fixtures,
Lessee owned Alterations and/or Utility Installations,
furnishings, and equipment as well as the removal of any
storage tank installed by or for Lessee. Lessee shall also
completely remove from the Premises any and all
Hazardous Substances brought onto the Premises by or for
Lessee, or any third party (except Hazardous Substances which
were deposited via underground migration from areas outside
of the Project) even if such removal would require Lessee to
perform or pay for work that exceeds statutory requirements.
Trade Fixtures shall remain the property of Lessee and shall
be removed by Lessee. Any personal property of Lessee not
removed on or before the Expiration Date or any earlier
termination date shall be deemed to have been abandoned by
Lessee and may be disposed of or retained by Lessor as Lessor
may desire. The failure by Lessee to timely vacate the
Premises pursuant to this Paragraph 7.4(c) without
the express written consent of Lessor shall constitute a
holdover under the provisions of Paragraph 26
below.
8.1 Payment
of Premiums. The cost of the premiums for the
insurance policies required to be carried by Lessor, pursuant
to Paragraphs 8.2(b), 8.3(a) and 8.3(b), shall be a Common
Area Operating Expense. Premiums for policy periods
commencing prior to, or extending beyond, the term of this
Lease shall be prorated to coincide with the
corresponding Start Date or Expiration Date.
(a) Carried
by Lessee . Lessee shall obtain and keep in force
a Commercial General Liability policy of insurance prelisting
Lessee and Lessor as on additional insured against claims for
bodily injury, personal injury and property damage based upon or
arising out of the ownership, use, occupancy or maintenance of the
Premises and all areas appurtenant thereto. Such insurance shall be
on an occurrence basis providing single limit coverage
i
|
